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The opinion of the court was delivered by
Greene, J.:
This was an action to recover the possession of certain property to which the defendants claim title under a tax deed issued to their grantor, Etta L. Minx, which had been of record more than five years. The plaintiff claimed that the deed was void on its face, but the court held otherwise and rendered judgment for defendants. Plaintiff prosecutes error.
Several questions were argued which, because of the views entertained by the court, need not be decided. The controlling and decisive question is, Was the tax deed issued by the county clerk to Etta L. Minx, the .grantor of the defendants, void on its face ? The deed, after formally setting out all the necessary preliminaries up to, and including, the issuance of the tax-sale certificate to P. E. Moss, contains the following recital :
“And whereas, the said P. E. Moss did, on the 2d day of September, A. D. 1891, duly assign the several certificates of the sale of the said several parcels, tracts and lots of property aforesaid, and all his rights, title and interest to said property to L. A. Biggs, and L. A. Biggs did assign-, and the Topeka Commercial Security Company did assign to Etta Minx; and whereas, the subsequent taxes of the year 1891, and for the year 1892, and for the year 1898, amounting for each of said years, respectively, on each of said parcels, tracts and lots as hereinbefore numbered and described, as follow: On that numbered 1, for 1891, $17.47; for 1892, $9.70; for 1893, $9.45, having been paid by the assignee, as provided by law; and whereas, three years have elapsed since the date of said sale, and .none of said property has been redeemed therefrom as provided by law, the said unredeemed real property having been advertised, and notice given that it would be conveyed unless redeemed by a certain day named, said advertisement and notice having been made in substantial conformity with all the requisitions of the statute in such cases made and provided.”
It will be observed that the deed does not show to whom L. A. Biggs assigned the tax-sale certificate, or that he assigned it to any person. It recites that the Topeka Commercial Security Company assigned the certificate to Etta L. Minx. There is, however, no recital that the certificate had been assigned to the Topeka Commercial Security Company, or that it had any title thereto. By the provisions of section 7648 of the General Statutes of 1901 the transfer of a tax-sale certificate must be made by a written assignment indorsed upon the certificate or attached thereto before the clerk is authorized to issue a deed to the property to the person in possession of the certificate. (Clippinger v. Tuller, 10 Kan. 377.) The holder of a tax-sale certificate properly and regularly issued has an interest in the real estate which cannot be transferred by a mere delivery of the certificate. In order to pass such interest, under our statute, the assignment must be in writing.
In Smith v. Todd, 55 Wis. 459, 13 N. W. 488, the court, in passing upon a statute which provided that a tax-sale certificate “may be assigned by the purchaser by writing his name in blank on the back thereof, and by the county treasurer or county clerk in like manner with his official character added, or any person’s interest therein may be transferred by a written assignment indorsed upon or attached to the same,” held that “the county clerk has no authority to issue a tax deed to the second assignee of a tax certificate whose assignment is not indorsed thereon or attached thereto.” On page 464 the court said:
“There can be no question that the tax deed, so issued and executed in violation of law, is absolutely void. Tax proceedings, by which the owner of land may be devested of his title, must be strictly in accordance with the law. The authority of the county clerk to issue a tax deed must be found in the statute, or it does not exist at all, and the deed he executes without such authority conveys no title.”
These decisions appear to cover the precise question raised by the plaintiff in error. The other errors complained of are those occurring at the trial, and they will probably not occur on a retrial of the case.
The judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment for damages for injuries to himself and to his horse and wagon. The defendant appeals.
The plaintiff and his son were driving home from Humboldt in a spring wagon drawn by a team of horses. The plaintiff was driving in the traveled way on the left side of a macadamized road. The defendant, with his family, was driving in an automobile on the same side of the road and going in the same direction at what was, under the circumstances, a high and dangerous rate of speed. It was in the nighttime and dark. The front lights of the defendant’s automobile were out. The side lights were burning and he could see fifty or sixty feet in front of him. The engine was not working properly and was making a noise. The plaintiff did not have time to turn to the right after he heard the defendant’s automobile coming, before it struck the plaintiff’s wagon. The defendant, when he saw that the plaintiff was not going to turn to the right, attempted to turn to the right and pass the plaintiff, but struck the right hind wheel of the wagon with the left front fender of the automobile, overturned the wagon, threw the plaintiff out and frightened his horses and caused them to run away.
The defendant pleads that the plaintiff was'guilty of contributory negligence in driving on the left side of the road and in not turning to the right when he learned that the automobile was coming. The defendant insists that this conduct on the part of the plaintiff was such as compels this court to say, as • a matter of law, that the plaintiff was guilty of such contributory negligence as prevents his recovery. Under the circumstances disclosed by the evidence, the question of contributory negligence on the part of the plaintiff was a proper one to. submit to the jury. The finding of the jury on that question :is conclusive in this court. Section 8 of chapter 65 of the Laws of 1913 is cited by the defendant. That statute does not prohibit a person from driving on the left side of a road., It requires him to turn to the right when another overtakes him and indicates a desire to pass. The fact that the plaintiff was, at the time of the accident, violating the law of the road in not turning to the right after he heard the automobile, does not, as a matter of law, preclude his recovery. (Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635; McComas v. Dry Goods Co., 96 Kan. 467, 152 Pac. 615; Note, L. R. A. 1915 E, 961.)
The defendant contends that the verdict of the jury was not supported by sufficient evidence. This contention is based on the failure of the plaintiff to turn to the right when he heard the automobile coming. This is another way of stating that the plaintiff was guilty of contributory negligence. That question has been disposed of. The evidence as abstracted has been examined, and it is found sufficient to support the verdict of the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action to recover from Claudel for certain thrashing machinery sold to him by the Ferguson Implement Company. The Ferguson Implement Company was the agent of the Huber Manufacturing Company.
It seems that one G. J. Ferguson, the president of the Ferguson Implement Company, made an oral contract with Claudel for the sale to him of a second hand Avery separator which both parties had in mind and which was to have a thirty-two-inch cylinder. After the contract was made Ferguson came to Claudel and presented to him an order for the machinery and requested him to sign the same, “in order that the machinery might be shipped forthwith.” Thereupon the order was signed, it being in words and figures as follow:
“Claudell, Kan., August 29.
“Ferguson Implement Company, Kansas City, Mo.:
“You will please ship at once one second-hand Avery separator, with wind-stacker, self-feeder, and weigher; one Ideal water tank; one. Myers low-down pump and hose; one main drive belt, eight inch, four ply, to go with the sixteen-horse-power engine you traded for from Henry Schlousky.
“I agree to pay one-half the freight on separator from Kansas City and give you my note due September 15, 1908, for ten hundred and twenty dollars.
Yours respectfully, F. M. Claudel.”
The machinery was duly shipped and received by Claudel, but he was unable to make it work, after thirteen days of trial, with the assistance of a man sent out by the plaintiff, for the reason, as was then discovered, that the separator had a thirty-six-inch cylinder instead of a thirty-two-inch, and therefore exceeded the power of the engine which the defendant had to operate it.. Upon the discovery of this fact the defendant tendered back the machinery and refused to pay for it. The defendant’s answer set out these mat-ters in defense, and in a cross-petition claimed damages resultant to him from the failure of an oral warranty which he claimed was made to him as to the character and quality of the machine. He further claimed that the written order which the plaintiff counted upon by mutual mistake omitted to state that the separator was to have a thirty-two-inch cylinder.
A demurrer to so much of the cross-petition as claimed damages on account of the failure of the oral warranty was sustained, and that phase of defend .ant’s cross-petition was eliminated from the case. The action, proceeded to a trial upon the mixed theory that the order counted upon was not a contract made between the parties, but the oral agreement was the true contract, the order having been made simply for the purpose of expediting the delivery. This was alleged in the answer and admitted in a reply; and the further claim that if the written order was the contract the size of the cylinder which the separator was to have was omitted by mutual mistake. However, the judge in his instructions-seemed to have confined the attention of the jury to the question of mutual mistake.
It is claimed that error was committed in the admission of evidence to show that there was a mutual mistake made in the written .contract or order by its failure to specify the length of the cylinder. This claim is made upon the theory that it was incompetent to-•change the written contract by parol evidence, and the case of Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867, is cited in support of this claim. This contention is untenable. In that case there was no claim of mutual mistake. It was there claimed by the defendant that the writing which appeared to be complete on its face did not contain all of the agreement beween the parties, but no claim was made that there had been any omission by reason of mutual mistake.
It has been long recognized that a court may supply ■matters omitted from a written contract either by mutual mistake or fraud, and having supplied such matters may enforce the contract as thus reformed. Nor is it essential that formal reformation shall be directed before enforcement of the contract as the court finds it should have been made will be ordered.
In the progress of the trial the defendant offered in evidence certain typewritten and typesigned letters purporting to have come from the Ferguson Implement Company-. Two of them were addressed to Clau del and one to J. P. Wheatley, who seemed to have been acting in some agency capacity for the implement company at Claudell station. As to two of these letters their admissibility is clearly made out by the fact that it was shown that they were received in answer to letters written, properly posted, and sent to the Ferguson Implement Company. To identify the other Mr. Wheatley was put upon the stand, and after having been shown several letters purporting to have come from the Ferguson Implement Company, signed in the same way that the letters offered in evidence were signed, was asked the following questions:
“Ques. The letters you have identified are letters you have received in answer to letters that you wrote to and directed to the Ferguson Implement Company,, are they? Ans. Yes, sir.
“Q. What did you do with the letters that you wrote to this company? A. I mailed them. Sent them through the mail.
“Q. With the proper stamps on, and directed to-the Ferguson Implement Company? A. Yes, sir.
“Q. And these letters you have identified are letters that you received in reply? A. In answer to my letters; yes, sir.
“Q. I will ask you to state whether or not the letter — if the signature to the letter marked ‘Exhibit Ar [the letter then sought to be introduced in evidence] is the signature of the Ferguson Implement Company; what is your answer? A. It was.”
This constituted a sufficient identification of the questioned letter. For all that is shown there might have been, and could easily have been, some peculiarity in the manner of writing or the character of the letters of the typewriter that would serve to identify the letter by comparison with those he had received from the company. There might have been an individuality in the body or signature that would make it recognizable. The witness testified positively that it was the signature of the Ferguson Implement Company ; he was not asked to state upon what particulars his belief was based. We cannot say that abundant basis for identification did not exist.
It is claimed that one of the answers to a special question submitted to the jury is not sustained by the evidence. We are hardly called upon to discuss this question for three good reasons: (1) It is not raised by the assignment of error; (2) it was not called to the attention of the court below in a motion for a new trial; (3) the plaintiff in error made no exceptions to the special findings for any reason, but adopted them by moving for judgment in his favor upon them.
Some criticism is made upon the court’s instructions to the jury, but we do not find them faulty in any respect suggested.
The'judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
The agency of Mr. Palmer for his wife was testified to by him, and such testimony was admissible. There was no attempt to prove the agency by the declaration of the agent. We think there was sufficient evidence of the agency to justify the court in finding that fact to exist. We cannot say that the judgment of the court below was not sustained by the evidence. It is affirmed. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
In this case the defendant in error obtained a judgment for $750 against the plaintiff in error in the district court of Wyandotte county. The action was for damages resulting from a burn upon the foot of plaintiff, received while carrying a ladle of molten iron from the cupola to the molds in the foundry of defendant, at Kansas City, Kan. The only neglect or fault on the part of the defendant that was submitted to the jury for consideration by the trial court was the condition of the foundry room, or rather the floor of the room, and the failure of the defendant to notify the plaintiff of the dangers of his employment, considered not to be apparent. It was shown by the evidence that the roof of the foundry was defective; that it had snowed on the morning of the day of the accident, and that the snow had melted and dampened the floor of thé foundry, and there was evidence tending to show that the damp condition of the floor may have contributed to, if it was not indeed one of the causes of, the injury. There was also evidence tending to show that the plaintiff had not been informed by any one of the effect of dropping molten iron upon a floor constructed of brick. The plaintiff himself testified that nothing occurred to cause the molten iron to be spilled from the ladle unless it was the jar of his walking, or that he allowed the ladle partially to tip while carrying it.
The instructions of the court are in two respects sub j ect to criticism. In one it. is assumed that the plaintiff was ignorant in regard to molten metal, and in another instruction it is submitted to the jury to find whether one Adams, who filled the ladle at the cupola, was a fellow servant of the plaintiff. The first instruction is supported by some evidence, although the weight of the evidence should have been left to the jury. As to the second instruction, however, the evidence was not conflicting, and as a proposition of law the court should have told the jury that Adams was a fellow servant of the plaintiff. The effect, however, of this failure so to instruct was discounted by another instruction which directed the jury that the-defendant was not responsible on account of any negligence of Adams.
Special questions of fact were submitted to the jury, three of which, with their answers, were as follow:
“7. Did the accident happen on account of plaintiff’s allowing the ladle to be turned while carrying it, thereby splashing molten iron on the floor? A. No.”
“9. Would plaintiff have been injured but for the fact of his allowing the ladle to tip while carrying it, thereby causing molten iron to fall on the floor? A. No.
“10. Do you find that the molten iron would not have been spilled but for the fact that Adams filled the ladle too full? A. No.”
At the first glance questions 7 and 9 seem to be absolutely inconsistent, but if the jury believed that the accident happened on account of the condition of the floor after the iron was spilled the answer to No. 7 can be reconciled with the answer to No. 9; that is, they would find that the accident did not happen alone from the fact that the plaintiff allowed the ladle to tip while carrying it, but that the two causes concurred to produce the result and to cause the accident. In No. 9 they say that the accident would not have happened but for the fact of the plaintiff’s allowing the ladle to tip, and in No. 7 they say that the accident did not happen from that cause. To render the findings consistent, or not absolutely contradictory, the answer to No. 7 must be qualified as meaning that the accident did not happen from such cause alone. From the general finding of the jury they must have found that the defendant was negligent in not providing a safe place for the plaintiff to work, or in not informing him of the dangers of the employment, although there was no such special finding. The plaintiff testified in substance that nothing occurred in the way of accident to cause the ladle to tip, and in finding No. 9 the jury found that but for this fact the accident would not have occurred.
The accident, then, occurred from two concurring causes- — one, the negligence of the defendant in failing to provide a safe floor to the foundry and in failing to inform the plaintiff of the dangers of his employment, and the other, the act of the plaintiff in allowing the ladle to tip while carrying it. The plaintiff had carried the ladle for thirty or forty feet without allowing it to tip. He had carried during the same day a number of loaded ladles and emptied them into the mold without, so far as the evidence shows, allowing them to tip. The ladle was not shown to have been defective in any way, and nothing was shown to have caused the tipping of the ladle except the plaintiff’s inattention and negligence. The accident, then, was caused by the concurring negligence of the plaintiff and the defendant. The act of negligence of the plaintiff was affirmatively found by the jury in finding No. 9. That the jury found that the defendant was also negligent in one or the other of the respects above mentioned is a necessary inference from the general verdict of the-jury in favor of the plaintiff, although it was not affirmatively found in any special finding.
The defendant moved the court for judgment on the special findings of fact, notwithstanding the general verdict. This motion was denied by the court. The ruling was excepted to, and is now urged as error, by the defendant, which is the .plaintiff in error, here.
Nothing is left to inference in the special findings of the jury. The allowing of the ladle to tip was an act of negligence on the part of the plaintiff, and the jury found that but for such act the injury would not have happened. There is no conflict of the authorities on the proposition of law involved. When the act of contributory negligence on the part of the injured employee is so far the cause of his injury that but for such negligence the injury would not have occurred, the employee cannot recover from the employer damages for such injury, whatever may have been the negligence of the employer. The jury did not affirmatively find that allowing the ladle to tip was negligence on the part of the plaintiff below, but, from all the findings and the general verdict, the court holds that as a matter of law the act constituted negligence. The writer hereof has some hesitation on this question. The motion of defendant for judgment on the findings should have been allowed.
The judgment of the court below is reversed, and the case is remanded with instructions to enter judgment for defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Arthur A. Underwood held a contract of purchase from the Lincoln Land Company of certain real estate upon which there remained a balance due. He was also under obligations to various persons on account of the erection of a house and other improvements upon the property. For the purpose of paying the amount due on the land and procuring a deed of it, and for the purpose of discharging his obligations for improvements on the land, he borrowed $900 of the Harlan County Bank. When the loan was made he left his land contract with the bank, and authorized it to procure a deed of the property from the land company. At the same time he agreed orally with the bank that it should hold the contract, and afterward the deed, as security for the loan until a formal written mortgage could be prepared, which he agreed to give. The bank paid the land company, obtained the deed, and paid out the remaining proceeds of the loan for the stipulated purposes. Underwood then refused to execute a mortgage to the bank, and mortgaged the property to the Foster Lumber Company. The lumber company, however, at the time it received its mortgage, had full knowledge of all the rights, claims, interests and equities of the bank, and already had received $300 of the loan direct from the bank on account of its claim for improvements. The land was the homestead of Underwood and his wife.
In an action by the bank for the recovery of a balance due upon its loan it claimed and was awarded a lien on the land superior to that of the lumber company under its mortgage. The lumber company seeks a reversal of that judgment by this proceeding in error.
It is claimed that the transaction disclosed amounted to nothing more than a deposit of title deeds as security for a loan, and, hence, that no lien resulted. The bank, however, pleaded and proved, and the court found, that the deposit of the contract of sale was accompanied by an express oral agreement to give a mortgage. The agreement furnished a sufficient basis upon which, after performance by the bank, to found a lien, and is sufficient to take the case entirely out of the category of equitable mortgages arising merely from a deposit of title deeds.
It is further claimed that the bank in its petition relied upon the deposit of the land contract and the taking of the deed from the land company as its security, and not upon the agreement to give a mortgage. The bank, however, simply pleaded the entire transaction as it actually occurred. The fact that the transaction may have included an attempt to create a lien by the deposit of title instruments does not alter or destroy the effect of the promise to give a mortgage. The bank’s theory, in part, may have been that the deposit of the contract and the procuring of the deed to Underwood’s land did give it a lien. It had the right to present the question to the courts; but it did not thereby abandon the right to claim a lien by virtue of the express contract to give a mortgage, which it fully and plainly pleaded. The two claims are not inconsistent. Both have been urged. That of an equitable mortgage is sufficient to sustain the judgment of the district court, and no occasion arises to discuss the policy of the law of this state concerning the other.
Having obtained the bank’s money upon an agreement to give it a mortgage, Underwood should have executed and delivered the promised security. Equity treats that as done which a party under his agreement ought to have done. (Elston v. Chamberlain, 41 Kan. 354, 361, 21 Pac. 259.) The court had no alternative but to apply the maxim in this case. (3 Pom. Eq. Jur., 2d ed., §1237; 1 Jones, Mort., 6th ed., §163; 11 A. & E. Encycl. of L. 125.)
, The fact that the agreement to give a mortgage was oral does not affect the validity of the bank’s lien. It had fully performed its part of the agreement.
“The doctrine of equitable mortgages is not limited to written instruments intended as mortgages, but which by reason of formal defects cannot have such operation without the aid of the court, but also to a very great variety of transactions to which equity attaches that character. It is not necessary that such transactions or agreements as to lands should be in writing in order to take them out of the operation of the statute of frauds for two reasons, first, because they are completely executed by at least one of the parties and are no longer executory, and, secondly, because the statute by its own terms does not affect the power which courts of equity have always exercised to compel specific performance of such agreements.” (Sprague v. Cochran, 144 N. Y. 104, 113, 38 N. E. 1000, 1002.)
“That statute was enacted to provide as far as possible against the perpetration of frauds; and courts of equity never allow its provisions to be perverted and made instrumental in the accomplishment of fraud. They decree the specific execution of agreements where there has been a performance on the one side, because the refusal to perform on the other side is a fraud; and they will not permit the statute designed to prevent fraud to be made an engine of fraud. Md. Sav. Inst. v. Schroeder, 8 G. & J. 93, 29 Am. Dec. 528; Hamilton v. Jones, 3 G. & J. 127; Artz & Wife v. Grove, 21 Md. 456; Moale v. Buchanan, 11 G. & J. 314.” (Cole v. Cole and Wife, 41 Md. 301, 304. See, also, Dean v. Anderson, 34 N. J. Eq. 496; Baker v. Baker et al., 2 S. Dak. 261, 49 N. W. 1064, 39 Am. St. Rep. 776; King v. Williams, 66 Ark. 333, 50 S. W. 695; 1 Jones, Mort., 6th ed., §164.)
Besides, it properly may be said that the lien decreed results from the operation of thé law upon the entire conduct of the parties, and hence is in terms excluded from the inhibition of the statute.
“It is claimed by counsel for plaintiff in error, substantially, that an equitable lien on real estate, where it has any real existence, is an interest in land, and cannot be created merely by parol; that the statute of frauds (Gen. Stat. 1868, ch. 43, §5) prohibits such a thing. All of this we agree to; but still the statute of frauds does not attempt to prohibit the creation of equitable liens by operation of law, nor does any other statute. (Stevens v. Chadwick, 10 Kan. 406, 15 Am. Rep. 340.) Such a lien should of course be in accordance with the contract and understanding of the parties affected by it, but still it may sometimes result by operation of law from the transactions of the parties almost wholly independent of the contract that may be made between them. It results however from the whole transaction, including all the contracts, agreements, and understandings of the parties, parol or otherwise.” (Curtis v. Buckley, 14 Kan. 449, 456.)
In the case of Sprague v. Cochran, supra, it was said, at pages 112, 114:
“There can be no doubt upon the authorities that where one party advances money to another upon the faith of a verbal agreement by the latter to secure its payment by a mortgage upon certain lands, but which is never executed, or which, if executed, is so defective or informal as to fail in effectuating the pufpose of its execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt. This lien attaches upon the payment of the money and, unless there is a waiver of it, express or implied, remains and may bé enforced so long as the debt itself may be enforced. . . . The whole doctrine of equitable mortgages is founded upon that cardinal maxim of equity which regards that as done which has been agreed to be done, and ought to have been done. In order to apply this maxim according to its true meaning the court will treat the subject-matter, as to collateral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been.”
This being true, the situation of the parties at the time the lumber company took its mortgage was precisely the same as if the contemplated mortgage to the bank had actually been given, and notice to the lumber company of the bank’s rights was equivalent to notice of a prior unrecorded mortgage. Under the recording acts such instruments are valid between the parties and all persons having actual notice of them. (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152, 12 Pac. 705.) Hence, the lien of the lumber company was necessarily inferior to that of the bank. (Jones v. Lapham, 15 Kan. 540; 11 A. & E. Encycl. of L. 141.)
The position taken by the lumber company is that the bank was not entitled to any lien whatever in any sum. The attacks made upon the findings of fact and conclusions of law were directed to the complete annihilation of the equitable mortgage sought to be foreclosed. No effort has been made to exclude any of the items utilized in computing the amount of the lien, and the mortgage has been left to stand or fall as an entirety. If, therefore, any part of it be valid as against the claimed homestead character of the premises the judgment cannot be disturbed.
There can be no doubt that, to the extent of the unpaid purchase-price of the land, the bank’s equitable mortgage was a purchase-money mortgage, and, therefore, valid without the consent of Mrs. Underwood, notwithstanding the property was occupied as a homestead. (Const., art. 15, §9; Pratt v. Topeka Bank, 12 Kan. 570; Andrews v. Alcorn, 13 id. 351; Ayres v. Probasco, 14 id. 175; Nichols v. Overacker, 16 id. 54.)
All other assignments of error have been examined and found to be unsubstantial. The judgment of the district court is affirmed.
All the Justices concurring. | [
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The- opinion of the court was delivered by
Mason, J.:
The Kansas State Mutual Hail Association is a corporation organized under article 5 of chapter 50, General Statutes of 1901, for the insurance of its members against loss through injury by hail to growing crops. A by-law of the association adopted in 1903 provided that no loss would be paid which occurred to wheat later than noon of July 25. After the adoption of this by-law E. C. Prather became a member of the company and received a policy of insurance covering a crop of wheat, the by-laws being printed upon the policy and made a part of it by reference. This wheat was destroyed by hail July 31, 1903, and Prather sued upon his policy and recovered a judgment upon the pleadings, from which the association prosecutes error.
The statute referred to contains this provision:
“All policies issued by companies organized under the provisions of this act shall expire on the 1st day of April in the year following that in which they were written.” (Gen. Stat. 1901, §3560.)
The only question here presented is whether, in view of this, it was competent for the defendant company, by by-law or otherwise, to limit its liability on any policy issued by it to losses occurring prior to July 25. The decision of this question depends upon the interpretation to be given to the language quoted, the purpose and meaning of which can be arrived at only by a consideration of other features of the statute of which it is a part.
The associations provided for by this act are purely mutual. They have no capital stock. Losses are paid only from premiums. If the funds on hand be insufficient to pay all losses incurred in any year, a proportionate reduction is made in their payment. If the amount of premium paid in any year exceed the losses and expenses by more than a stated percentage, a part of the surplus is returned to those from whom it was received: Each person taking out a policy of insurance becomes thereby a member of the corporation. No provision is made for any other character of membership. An annual meeting of the members is held in January, at which one-third of the board of directors are chosen, for a term of three years. On the next day the directors select the officers for the ensuing year. Under this plan it is evident that the policy issued performs a double function: It is not merely a contract of indemnity between the corporation and the insured; it is also an agreement by which the insured becomes a member of the corporation. It is in the latter aspect that reasons are to be found for regulating its duration by statute. While it is in force its holder may participate in the annual meeting and have a voice in the selection of the managers of the association. When it expires he ceases to be a member. The purpose of the legislature in fixing a time .for its expiration seems to have been to provide a method for perpetuating the organization, by giving all policyholders a standing as members until after the annual meeting for the election of directors, and perhaps also to prevent the writing of policies covering risks for more than one season.
These considerations sufficiently account for the provision in question and assign to it a reasonable operation. To give it the further effect of prohibiting any time limit upon the liability assumed by the corporation short of the 1st day of April would involve manifest difficulties. The statute only authorizes insurance upon growing crops, so that all responsibility for loss must necessarily end long before that date. Whenever an insured crop is harvested without having been injured by hail the policy has served its purpose as a contract of indemnity and ceased to exist as such. The part of the by-law of the defendant company which is here involved reads as follows:
“No loss will be paid which occurs to grain in class ‘A’ [which includes wheat] before it is insured, or after it is harvested, nor on grain not harvested in due season, nor after July 25 at noon.”
It is argued that so much of the by-law as seeks to limit the liability of the company to losses occurring by July 25 is void because the statute extends such liability to April 1. If the argument be sound, then for the same reason the stipulation against paying for injuries to grain not harvested in due season should be held to be invalid. We'do not think it is sound. Just as it was competent for the company and its members, notwithstanding the statutory provision that its policies should expire April 1, to agree that no risk should be assumed for grain left standing for an undue time, it was competent for them to determine in advance by express stipulation what should be considered an undue time for the purposes of their business, and to agree that there should be no liability for grain left standing after July 25. We hold that the by-law was not in contravention of the statute.
The judgment is reversed, and the cause remanded for further proceedings in accordance with the views here expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Plaintiffs brought these suits in the district court of Graham county to restrain the defendants from removing their fences and opening a public road on the line between sections 27 and 34. It appears that when the suits were begun Peter Hansel-man was the owner of the north half of section 34 and Hardman was the owner of the southeast quarter of section 27, and on the line between these sections there was a fence. Frank Born was trustee of the township and J. Swain road-overseer of the district in which the lands are situated, and as such officers they went upon the premises of plaintiffs and removed the fences for the purpose of opening a public highway on the section-line. Plaintiffs rebuilt the fences and defendants again removed them. Each of the plaintiffs then brought suit to enjoin the defendants from thereafter repeating such trespass. A temporary injunction was granted, which was afterward set aside. Finally the cause was tried and a judgment rendered for defendants. Plaintiffs prosecute error.
As the two cases involve the same facts, they were argued together and it was agreed that but one opinion should be delivered.
The defendants in error contend that this section-line was opened for a public highway by chapter 215 of the Laws of 1887; and, also, that it has become a public highway by prescription. The lands in question were either owned or occupied by persons who were in good faith attempting to acquire title when the act of 1887 was passed.
The defendants in error ask that the proceedings be dismissed for the following reasons: (1) That a suit of injunction will not lie; (2) that the board of county commissioners was not made a party; (3) that after the restraining order was set aside and before the final trial the defendants in error removed the fence and thereby opened the section-line to the public for a highway, leaving no question for determination. The motion must be denied. One of the most common, as ■well as the most useful, purposes of the equitable remedy of injunction is the prevention of a continuing trespass where there is no adequate remedy by way of damages. (Webster v. Cooke, 23 Kan. 637; Walker v. Armstrong, 2 id. 198; Oliphant v. Comm’rs of Atchison Co., 18 id. 386; Poirier v. Fetter, 20 id. 47.)
These suits were to restrain the defendants from continuing to trespass upon the real estate of the plaintiffs. The county had no interest in the result of the litigation; therefore, the board of county commissioners was not a necessary party. The plaintiffs’ property cannot be appropriated to the use of the public except by due form of law. The removal of the fences of plaintiffs in error by defendants in error pending the litigation did not settle the lawsuits in favor of either, or determine any question involved in the litigation.
The court made special findings of fact of which the following are material to a disposition of this controversy :
“No work appears to have been done along the section-line between 27 and 34 under the direction of any road-overseer. . . .
“No notice of the opening of a highway along the line between these sections was ever given either of these plaintiffs by any road-overseer until a short time before the beginning of these suits, when the defendant Born, township trustee, on or about March —, 1903, notified them that that line was a public road, and must be opened by them. He at the time told them that if they did not open such line for highway purposes he himself would do so by removing the fences crossing the same. . . .
“The board of county commissioners of this county never made an order establishing a highway nor opening a highway on said section-line in dispute in these actions.”
The court also made the following conclusions of law:
“(1) That the act of 1887 established a highway along said section-line.
“ (2) That the repeal of section 1 of said act, by the act of 1889, did not affect said section-line as a highway, nor in any manner vacate it as such.
“ (3) That said section-line was opened as a highway, being traveled as such by the public, and by being recognized as a highway by the owners of the land lying along said section-line.
“(4) That the plaintiffs are not entitled to the injunctions prayed for.”
It does not appear that the court found that a road had been established upon the section-line by prescription ; and, indeed, from the facts such conclusion would be impossible.
The question then is, Did chapter 215 of the Laws of 1887, without any additional steps having been taken by the board of county commissioners, open a highway on this section-line? The provisions of the act pertinent to this question are sections 1 and 3, as follow:
“Section 1. That all section-lines in the counties of Graham, Eawlins, Ness, Lane, Stafford, Decatur, Thomas, Sherman, and Trego, in the state of Kansas, be and the same are hereby declared to be public highways, and to be of the width of sixty feet.”
“Sec. 3. If any person owning land on either side of such section-lines as herein declared public highways shall feel aggrieved by reason of the enforcement of this act in declaring section-lines public highways, such person shall have the right to present his claim for damages for land appropriated for road purposes under the provisions of this act to the county commissioners of the proper county as is provided in the present general road law now in force in this state, at any time within one year from the time such road is actually opened to the public use over and upon his land.”
The act declared every section-line in Graham county-a public highway, but it did not have the effect of opening the same. (Hughes v. Milligan, 42 Kan. 396, 22 Pac. 313.)
The language used in section 3, “if any person owning land on either side of such section-lines as herein declared public highways shall feel aggrieved by rea son of the enforcement of this act,” indicates that the legislature contemplated that some action on the part of the authorized local authorities was necessary to open the road. By reading that language with the further provision that “such person shall have the right to present his claim for damages for land appropriated for road purposes under the provisions of this act to the county commissioners of the proper county as is provided in the present general road law' now in force in this state, at any time within one year from the time such road is actually opened to the public use over and upon his land,” it becomes clear that the act did not actually appropriate any land for public highways, nor open public highways on such lines, but left the act of opening them to be performed by the persons designated by statute; therefore, provision was made that the owner might present his claim to the board of county commissioners for damages for lands so appropriated at any time within one year after the road should have been actually opened.
Upon the taking effect of the act of 1887 it was the duty of the road-overseers in their respective districts in the counties named to give the notice required by section 6027 of the General Statutes of 1901 and proceed to open such roads, unless the board of county commissioners had theretofore vacated the same under the authority conferred upon them by section 2 of the act. (The State, ex rel., v. Spencer, 53 Kan. 655, 37 Pac. 174.) It appears from the findings that no steps were taken by the road-overseer to open the highway along the section-line in question until his attempt in March, 1903.
The act of 1887, as to Graham county, was repealed by chapter 188 of the Laws of 1889, the effect of which was to vacate all section-line roads in that county not theretofore opened by the overseer as herein indicated. Therefore, the act of defendants in attempting to open the road in question was unauthorized. They were mere trespassers, and the plaintiffs were entitled to injunctions.
The judgment in each case is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This suit was brought by the plaintiff below to restrain the defendant from closing an alleged highway. The plaintiff stated in his petition that he brought the suit for himself and the traveling public who traveled the road referred to in his petition. He alleged that he is the owner of the north half of the southeast quarter of section 6, township 32, range 22 east of the sixth principal meridian, in Cherokee county, Kansas; that his residence is on the extreme west end of the tract of land; that in the years 1870 and 1871 the south half of the quarter was owned by one R. Tippie and that the southwest quarter was owned by J. D. Goodmer; that in one of those years these parties dedicated to the use of the owner of the plaintiff’s land, and to the traveling public, a strip of land twenty-five feet wide along the west end of the south half of the southeast quarter and a strip twenty-five feet wide along the east side of the southwest quarter of the section, making a strip fifty feet wide, for a public highway for the owner of the land and the public; that it was accepted at that time as a public highway, and was by the owner and all subsequent owners of the land of plaintiff, and by the public generally, used as a public highway; that the owners of the tracts planted out their hedge fences so that it left this roadway of fifty feet in width; that such roadway has been constantly used by the owners of plaintiff’s land and by himself and the public from that date as a public road, until about one year prior to the bringing of this suit, when the defendant, who had become the owner of both of such tracts of land, wrongfully built a wire fence across each end of the road, which, defendant declares, will in the future be maintained, thus preventing the plaintiff and the public from using the highway. He also alleged that he has no other route to travel to and from his residence from the south. To this petition the court sustained a demurrer.
It appears from the argument that the demurrer was sustained on the ground that plaintiff could not maintain a suit on the part of the public to abate a nuisance. This is true, but a private person can maintain a suit to abate an obstruction of a highway when he has some special interest or special right therein, or sustains some special damage thereby, over and above the public generally. In the present instance the plaintiff makes it clear by his petition that he has a special interest in this road, and that the closing thereof will inflict upon him a special damage not sustained by the public; therefore, he may maintain injunction to prevent its continued obstruction. What is said in the petition about the plaintiff’s suing on behalf of the public may be treated as surplusage.
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
Johnston, C. J.:
E. V. Freeman purchased a regular full-fare ticket of the Atchison, Topeka & Santa Fe Railway Company for passage from Argonia to Wichita, on May 31, 1902. On the face of the ticket was printed the following condition: “One continuous passage, commencing within one day from the date on back hereof.” On the back of the ticket, in perforated characters, was the date, “5-31-02.” For reasons of his own the plaintiff did not take the trip on the day he purchased the ticket, but several weeks later he presented the ticket on a train, when he was informed by the conductor that the ticket had expired, and upon his refusal to pay fare he was expelled from the train. Although the plaintiff had carried the ticket in his pocket between the time of purchase and presentation he states that he did not notice the limitation on its face, and was not aware that it was a limited ticket. He was a commercial traveler, and frequently purchased and used tickets like the one in question. In an action for damages the above facts were disclosed, after which the court held that the plaintiff was not entitled to recover damages and directed judgment for the defendant.
It is insisted by the plaintiff that as he paid regular, first-class fare he was entitled to an unlimited ticket, and that as the limitation was not brought to his attention, nor observed by him, it was without binding force.
A ticket which contains no limit as to time, either on its face or by a regulation of the company, may ordinarily be used at any time within the period fixed by the statute of limitations. However, it is no longer open to controversy that in the absence of statutory restrictions carriers of passengers may limit the time within which tickets of any class may be used, provided, always, that the limitation is reasonable. In his work on Railroads Judge Elliott tersely states the doctrine as follows:
“The right of a railroad company to limit the time within which a ticket over its road shall be good is well settled. But the limitation must be reasonable. Subject to this qualificátion a ticket may be limited even to a single day or to a particular train. A limited ticket is not good for passage after the time to which it is limited has expired, and, as a general rule, one who presents such a ticket and refuses to pay his fare or produce a proper ticket may be expelled from the train.” (4 Ell. Rail. §1598.)
There was no ambiguity in the condition expressed on the ticket. The date on the back was abbreviated, it is true, but it was in a form commonly used in business transactions, and one that a man of ordinary intelligence could not misunderstand. His signature was not attached to the contract, and he says that he did not notice the printed limitation in the ticket until it was refused; but the absence of his signature did not eliminate the condition, and he is bound by, and must take notice of, limitations plainly printed on the face of the ticket. No statement- was made by the agent who sold the ticket with reference to the time when it might be used, nor was anything said as to the character of the ticket that would mislead the plaintiff. There was daily service on the railroad between Argo-ma and Wichita, and, hence, it cannot be said that the condition limiting the time of use to one day from the time of sale was unreasonable. That condition being plainly expressed on the ticket, it will be presumed to have been consented to by the purchaser in the acceptance and use of the ticket itself. Among the authorities sustaining these views are the following: Dangerfield v. Railway Co., 62 Kan. 85, 61 Pac. 405; Railroad Co. v. Price, 62 id. 327, 62 Pac. 1001; Rolfs v. Railway Co., 66 id. 272, 71 Pac. 526; Hanlon v. Illinois Central Railroad Co., 109 Iowa, 136, 80 N. W. 223; St. Clair v. Railroad, 77 Miss. 789, 28 South. 957; T. & N. O. Ry. Co. v. Powell, 13 Tex. Civ. App. 212, 35 S. W. 841; Callaway, Receiver, v. Mellett, 15 Ind. App. 366, 44 N. E. 198, 57 Am. St. Rep. 238; Lillis v. The St. Louis, Kansas City & Northern Rly. Co., 64 Mo. 464, 27 Am. Rep. 255; Boston and Lowell Railway Co. v. Proctor, 1 Allen, 267, 79 Am. Dec. 729; State v. Campbell, 32 N. J. L. 309; Elmore v. Sands, 54 N. Y. 512, 13 Am. Rep. 617; Boice v. Hudson River Railroad Co., 61 Barb. 611; Rawitzky v. Railway Co., 40 La. Ann. 47, 3 South. 387; Coburn v. Railroad Co., 105 La. 398, 29 South. 882, 83 Am. St. Rep. 242; Pennsylvania Co. v. Hine, 41 Ohio St. 276; Hutch. Carr. §§576-581; 1 Fet. Carr. §285; 3 Thomp. Neg. §2599; 6 Cyc. 575.
The plaintiff contends that the limitation is not enforceable because it was nowhere alleged in the petition that the company had a rule providing for such limitation, nor that the rule, if it existed, was reasonable. The existence of such a rule is of no importance where the limitation is written on the ticket itself. If the limitation had been a regulation of the company, printed or posted elsewhere, a question might have arisen as to whether due notice of the rule had been given or that the company had sufficiently brought it to the attention of the plaintiff to make it effective as to him. The limitation expressed on the ticket, which the plaintiff knew or by reasonable diligence could have ascertained, constituted a contract between him and the company, and was binding alike upon both.
The court ruled correctly in sustaining a demurrer to plaintiff’s evidence, and its judgment is, therefore, .affirmed.
All the Justices concurring. | [
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Per Curiam:
This case was tried by a judge pro tem., and is brought to this court on a case-made. The day for settling and signing the case-made expired March 24, 1904. It appears that previous thereto, and within the time fixed by the order of the court, the case was made and served and the amendments suggested. It is stated by counsel for plaintiffs in error that on March 23 both parties appeared before the judge pro tem. to have the case settled and signed as a case-made. Such of the amendments as were allowed were inserted, and the whole left with the judge for his signature. For some reason not explained it was not signed as a case-made until March 25, 1904. This was one day after the expiration of the term of office of the judge pro tem. For this reason the defendant in error challenges the jurisdiction of this court to examine the alleged errors. We think this contention must be sustained. By the order previously made the judge pro tem. fixed the time limit of his tenure of office to expire March 24. Thereafter he had no official existence, and could not settle and sign a case-made.
The motion to dismiss is granted. | [
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The opinion of the court was delivered by
Johnston, C. J.:
George M. Buffington was charged with the felonious killing of Oda Miller, and convicted of murder in the second degree. Because of the failure to charge the jury on the lower degrees of the offense that conviction was set aside. (The State v. Buffington, 66 Kan. 706, 72 Pac. 213.) On the new trial he was again found guilty of murder in the sec ond degree, and has again appealed. The facts were quite fully set out in the first decision, and the testimony at the second trial appears to have been substantially the same as at the first, showing that Miller was an employee of the defendant, and that the tragedy grew out of a dispute between them as to whether Miller and others of the hired men were entitled to pay for working a quarter of a day more than was credited to them by the defendant.
The testimony offered by the state was to the effect that in discussing this claim with one Shepard the defendant made a remark imputing blame to Miller, or rather to the effect that he had shirked in his work. Miller, who was in an adjoining room, came into the room where defendant was, saying: “Look here, old man, you don’t know who you ’re talking about. I will fix you.” Buffington, who was sitting in a rocking-chair, said to Miller: “Get out of here, Oda; I-don’t want anything to do with you.” Shepard then interposed, saying to Miller: “Leave the old man alone; we can settle this without trouble.” Miller then turned aside, when the defendant said: “Get out of here, Oda, or I will shoot hell out of you.” Miller then took hold of the back of the rocking-chair, tipping it forward, and the defendant slid out of it, going down on one knee by the side of an open satchel, in which was a loaded revolver, which he seized. His wife, who had come into the room, threw her arms about his neck, saying: “Oh, don’t do that, George!” At the same time she placed her body between him and Miller. While in these positions Miller, who had lifted the chair in front of him, said: “Get out of the way, old lady, and I will fix him.” Just then defendant fired a shot at Miller, which was quickly followed by a second one, and Miller in the meantime fell forward against the defendant. Two other shots were fired into his body. Immediately after the shooting Miller was found dead, and four bullet-holes were discovered in his body — one in his breast and three in his back. Defendant asked some of the men to take Miller’s body from the room, and, as no one did so, he went in, seized hold of Miller’s feet, and dragged the body face downward out of the room and upon a porch, where it remained all night and until the coroner came on the following day.
There was testimony of coarse and harsh statements made by the defendant after the killing as to the corpse and its disposition. There was testimony that he told a witness that in the scuffle “I grabbed for my gun, and finally I got my gun, and as soon as I got my gun I knew he was a dead man.” The defendant claims that Miller made an unprovoked attack upon him, and for his own protection it appeared to be necessary to shoot and kill his assailant. There was the further claim that his wife was not trying to prdvent him from using the revolver when she threw her arms around his neck, but placed herself between him and Miller to shelter him from an assault which Miller was making upon him with the uplifted rocking-chair. The state contends that Miller merely used the chair as a shield against the bullets of defendant’s gun.
A number of exceptions were taken to rulings upon testimony. The defendant was placed upon the witness-stand and testified upon his own behalf, and upon cross-examination inquiry was made as to past difficulties of a like character to that under investigation. Of this he complains. Having assumed the character of a witness he was subject to the rules ap-' plicable to any witness, and questions as to his past life and conduct which would affect or impair his credibility were not improper. The extent to which such an examination may go is largely a matter of discretion with the trial court. (The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; The State v. Wells, 54 id. 161, 37 Pac. 1005; The State v. Greenburg, 59 id. 404, 53 Pac. 61.)
The questions asked Mrs. Buffington are not deemed to be outside of the boundaries of legitimate cross-examination.
Objections were made to many of the rulings of the court in instructing the jury. Most of the criticisms of the charge are directed at the refusal of requested instructions. Of those refused many were correct statements of the law, but they were fairly covered by the instructions given by the judge in phraseology of his own. The offense, as well as the inferior degrees of the same, was distinctly defined, and the points of law arising under the evidence were fully and carefully stated in separate propositions. In those requested a number included several propositions in a single instruction, but the court adopted the better practice of giving each important proposition in a separate instruction, and arranged them in logical order, so they could be correctly understood and applied. For instance, the sixth request, which was refused, presented certain elements which would reduce the offense from murder to manslaughter, and also related to self-defense. In several of the instructions given the court pointed out the distinctions between murder in the second degree and the several degrees of manslaughter, and in other instructions the jury were advised how far the defendant might go in repelling an attack, presenting every phase of the law of self-defense applicable to the case. Among those on this subject was the following, which largely embraced the points of the refused request:
“If you believe from the evidence that at the time of the shooting in question the said Oda Miller made an attack upon the defendant with a chair, under such circumstances as to create in the mind of a reasonably and ordinarily prudent man a belief that he was in danger of being killed or of receiving great bodily harm immediately, and if you further believe from the evidence that the defendant at the time did honestly believe that he was in imminent danger of receiving great bodily harm, and in good faith shot to protect himself therefrom, and if you further believe that the defendant, acting in good faith, did not fire any more shots than he had a reasonable right to believe, under the circumstances in which he was placed, were necessary to protect himself or his wife from death or great bodily harm, then you should find the defendant not guilty.”
It is contended that in the refusal of several requests the jury were not permitted to consider or make due allowance for the effects of sudden passion, excited by an attack upon the defendant. This criticism is hardly justified. In the twentieth instruction the attention of the jury was directly called to this subject, and they were told that since the killing was admitted it was important to consider whether the killing was purposely and maliciously done, without justification and excuse, “and not done in the heat of passion, upon a sudden and sufficient provocation, before reason had time to resume its sway.” In the twenty-first instruction the court, in describing a malicious killing, eliminated one done in a sudden transport of passion, under sufficient provocation. In the twenty-sixth, twenty-seventh and twenty-eighth instructions the court presented the different phases of the law in respect to the taking of life in the heat of passion, telling the jury how that element reduced the grade of the offense and measured the defendant’s responsibility. In these instructions this branch of the case was fairly presented to the jury.
There is complaint that the words “in the heat of passion” were not defined, but it may be noted that the court was not asked to define them. It may well be doubted if there is any necessity for defining a phrase which is in such common use as the one in question. The words were doubtless used by the legislature, and by the court, in their general and popular signification, and it is hard to conceive that they were not correctly understood by the jury. It may at least be said that in the absence of a request for a definition of the words the omission to give one is not ground for a reversal.
Instead of giving a requested instruction that the jury could not disregard the testimony of the defendant the court told them “that the defendant is a competent witness in his own behalf, and you have a right to consider his evidence and are to give it such faith and credit as you believe it entitled to receive.” It is contended that the language “you have a right to consider his evidence” implied that they might use their discretion as to whether they would or would not consider it. Although not the best form of expression we do not think that it conveys the idea that the consideration of the defendant’s evidence was optional with the jury, because in the same instruction they were specifically told to give his evidence such faith and credit as they believed it was entitled to receive. The general instruction given as to weighing the evidence in the case makes no exception of his, and it is impossible to think that the jury understood that they could overlook his testimony.
The defendant has no reason to complain of the instructions as to malice, or as to the definition of the term.
The court instructed the jury “that no words, however abusive and insulting, will justify an assault or will constitute a sufficient provocation to reduce to manslaughter what would otherwise be murder.” The instruction is both appropriate and correct, and within the authorities. (Murphy v. The State, 31 Ind. 511; Boyle v. The State, 105 id. 469, 5 N. E. 203, 55 Am. Rep. 218; Crosby v. The People, 137 Ill. 325, 27 N. E. 49; People v. Kelly, 113 N. Y. 647, 21 N. E. 122; Allen v. United States, 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528; 21 A. & E. Encycl. of L. 179.)
Other criticisms of the instructions are made which have been considered, but which are not deemed to be material. The evidence did not warrant the submission of an instruction as to manslaughter in the second degree, and it would have been error to charge the jury upon that grade of the oifense.
Upon the whole case the court is of the opinion that no prejudicial error was committed at the trial, and that there is sufficient evidence to sustain the verdict of the jury. The judgment is affirmed.
All the Justices concurring.
Burch, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The result of this proceeding depends mainly upon the interpretation to be placed upon the contract quoted in the foregoing statement. There had been negotiations between the parties for pasture in Kansas for cattle then in Texas, and’ a representative of N. B. Brown & Co. came to Hutchinson, Kan., expecting to rent the Pierceville pasture, but when he arrived he found that the defendant had already disposed of that pasture. The defendant then offered to rent plaintiffs the Stevens pasture in Finney county, and there is a claim that defendant represented to plaintiffs that it was as large and as good a pasture as the one at Pierceville. The person representing the plaintiffs declined to rent the pasture without examining it, and so the representatives of each of the parties went from Hutchinson to the Stevens pasture together, and rode over and inspected it, after which the contract in question was made. The plaintiffs therefore knew, or had the opportunity of knowing, the extent and character of the pasture before renting it. The contract then made is supposed to embody all prior understandings and negotiations. It speaks for itself, is not ambiguous, and cannot be enlarged, varied or contradicted by parol evidence. There was no attempt to impeach the contract by reason of fraud or misrepresentation, nor to show that any later or other agreement was made.
The principal complaint is that the acreage of the Stevens pasture was not as great as that of the Pierceville pasture,'and that it was insufficient to afford pasture for the plaintiffs’ cattle to the end of the season, which happened to be a dry one. The extent of the pasture was as well known to the plaintiffs as to the defendant. The contract did not provide that it should afford as much grass as the Pierceville pasture, nor that it should furnish sufficient grass for plaintiffs’ cattle. The agreement was to furnish a particular pasture, at a certain price; that plaintiffs’ 1800 head of cattle should be pastured there, and, in effect, that it should not be overstocked by putting other than plaintiffs’ cattle in the pasture. So it appears that plaintiffs got what they contracted for— the Stevens pasture. No cattle other than plaintiffs’ (which were about 1700 in number) were put into the pasture, and if it was overstocked it was not done in violation of the contract. On that year, as on previous seasons, Stevens, the owner, reserved a small portion of the pasture for his own cattle, but the division or line fence of the part reserved was pointed out to the plaintiffs’ representative, and the boundaries of the pasture were well understood before the contract was made.
Some effort was made to show that for a short time not enough salt was furnished and that the water-supply was insufficient. It appears, however, that the man left in charge of the cattle was a former em ployee of the plaintiffs, who acted in behalf of both plaintiffs and defendant, and whose compensation was paid by both. He never made complaint, nor gave any notice that there was a lack of either salt or water. Plaintiffs cannot well complain of, nor recover damages for, the neglect of their own agent. Aside from the fact that the care of the cattle was placed in a man of their own choosing, no proof was offered that any particular loss resulted from a lack of either salt or water.
Under our interpretation of the contract no recoverable damages were proved, and the demurrer to the evidence was rightly sustained.
The judgment is affirmed.
All the Justices concurring.
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Per Curiam:
This is an action brought against the county of Leavenworth for damages for personal injuries sustained by the plaintiff in error in riding across a county bridge in that county. After the plaintiff had introduced her evidence, at the trial of the case, a demurrer thereto was interposed, which was sustained, and judgment was rendered against the plaintiff for costs. The plaintiff brings the case here for review.
It is conceded that under the statutes of the state the county is not liable in this action for damages unless the chairman of the board of county commissioners had notice of the defect that caused the injury at least five days before the occurrence of the accident. The court sustained the demurrer on the ground that the evidence failed to show such notice, and in this ruling we think there was no error.
It is claimed that the plaintiff failed to show that the chairman of the board of county commissioners had notice of the defect by reason of the court’s erroneously excluding the evidence of a conversation had by the township trustee with another member of the board of county commissioners, in the presence of the chairman of the board, when the question should have been submitted to the jury to determine whether or not the chairman heard the conversation. There would be much force in this objection were it not that the trustee was allowed to testify that in the conversation with the other member of the board no reference was madp to the defect in question, but that the subject of conversation was in regard to the defective condition of the bridge in question, and other bridges in his township, and it thus becomes apparent that if the conversation had been submitted to the jury it would have conveyed no notice of the particular defect that caused the injury. (Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554.)
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The opinion of the court was delivered by
Mason, J.:
Isaac E. Marshall executed a deed purporting to convey a tract of land to two of his sons and the wife of a third son, but reserving a life-interest in the grantor. About two years later he began a suit to set aside the deed, alleging that his signature had been procured by the fraudulent representation, believed and relied upon by him, that the instrument contained a provision making it revocable at his pleasure. Issues were joined and tried, the testimony being largely oral. The court found generally for the defendants and rendered judgment accordingly, which the plaintiff now seeks to have reversed, principally upon the ground that it was contrary to the evidence. It is true that the plaintiff testified positively in support of the allegations of the petition, but just as positive testimony was given to the contrary, and we are unable to discover that this assignment of error involves anything more than a question of the credibility of the opposing witnesses, upon which the decision of the trial court is final. The other specifications of error relate to the rejection of evidence.
In his examination in chief the plaintiff was asked: “Was it ever your intention to make them [the grantees] an absolute deed to the place — to the land in question?” An objection to this question was sustained, and complaint is made of this ruling. The defendants argue that it was not competent for the witness to testify concerning any purpose formed in his own mind, except so far as it had been disclosed by his acts or speech. Whether or not it was proper to reject the testimony upon this principle, no material error was committed. The witness had just been permitted to state in so many words that he would not have signed the deed if he had known that it contained no clause permitting its revocation, and this was practically an answer to the question ruled out, so far as it was pertinent to the issue. The plaintiff’s story throughout was wholly inconsistent with an intention on his part to make an irrevocable deed, and his express disclaimer of such an intention could have added nothing to the force of his testimony.
The fraudulent representations relied upon were alleged to have been made by Elmer Marshall, the husband of one of the grantees. The plaintiff testified that after 'the deed was made he had a conversation with Elmer about deeding back the land, but that he did not, however, talk to him anything about leaving out the condition authorizing a revocation. The ques tion was then put: “What did you ask him?” Thereupon the defendants objected “to any conversation with Elmer after the deed was executed, as incompetent, irrelevant, and immaterial — -not binding on these defendants.” The objection was sustained, and the ruling was excepted to, and is now assigned as error. No further questions were asked, however, and. no offer was made to explain the purpose of the inquiry already made or to show any specific fact by the witness. In this condition of the record the action of the court must be regarded merely as a rejection of the very question asked. This question did not point to any matter of obvious relevancy and materiality, and in the absence of further information the trial court could not. have known that the answer sought to be elicited would be admissible. The ruling cannot be said to have been prejudicially erroneous merely because it may be possible to imagine a conversation between the witness and his son that might properly have been received in evidence. In volume 2 of the Cyclopedia of Law and Procedure, at page 697, it is said:
“To reserve any question on- the ruling of the trial court in excluding testimony, there must be a pertinent question propounded, and, upon objection being made, a statement to the court of the testimony which it is expected will be elicited by the question, and an exception taken to the ruling thereon.”
The proposition is there somewhat too broadly stated, since the question itself may be, and -often is, of such a character that in connection with the other proceedings it clearly indicates the materiality of the answer sought and renders superfluous any statement as to what it is expected to be. On the other hand, a too narrow enunciation of the principle is made in volume 8 of the Encyclopedia of Pleading and Practice, at page 76, where it is said:
“The court may require counsel to explain the ma teriality of the answer sought from a witness; and, if this be not done, the exclusion of the evidence is not available on appeal.”
This language seems to imply that no statement or explanation need be made unless in response to a demand by the court. In a doubtful case the court may well inquire of counsel, as an aid to an intelligent ruling, the purpose of a particular line of inquiry; but it is incumbent upon the attorney conducting an examination to show affirmatively upon his own motion that the testimony he offers is material, assuming himself the risk that if he fail to do so a reviewing court can grant him no relief. As was said in Mitchell v. Harcourt et al., 62 Iowa, 349, 17 N. W. 581:
“The true rule, we think, is that, when it is apparent on the face of the question asked the witness what the evidence sought to be introduced is, and that it is material, this is sufficient; but when this is not apparent, then the party seeking to introduce the evidence is required to state what he expects to prove, and thus make its materiality appear.”
The plaintiff called the wife of Elmer Marshall as a witness in his behalf and asked her whether she had not had certain conversations with her husband regarding the transaction under investigation. Answers to all such questions were excluded by the court. The plaintiff contends that such exclusion was erroneous, inasmuch as the husband and wife were joint parties and had a joint interest in the action, and the inquiries related to a transaction in which one acted as the agent of the other. These considerations, under the statute (Gen. Stat. 1901, §4771), remove the general disability of the wife to testify for or against her husband, but do not affect the prohibition against testimony concerning communications made to her by him during their marriage.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The undisputed evidence in this case shows that defendants Bucher and Mark were copartners prior to the purchase of the land in question; that the land was purchased in a partnership transaction, and, so far as paid for; payment was made by an exchange of partnership property; that the firm continued doing an active business until about 1893 or 1894, when it ceased, but there was no formal dissolution of the firm, and no accounting or settlement of the partnership affairs; that the firm property, including the land in question, was responsible for the debts of the firm and was turned over to Bucher, who was to settle and adjust matters.* Bucher leased the land for a time, and applied the rent on the firm’s indebtedness; and when Covalt took the quitclaim deed from Mark he had knowledge of the fact that the land was partnership assets, or, at least, sufficient information to put him upon inquiry, and he was bound to take notice of the rights of the parties as well as of the rights of the creditors of the firm. The partners jointly held the land in trust for the firm, and individually neither owned an undivided one-half interest therein nor had a right to sell the land or his interest, except for the purpose of paying the obligations of the firm, until all of the firm debts had been paid and the affairs of the copartnership wound up. The firm, as such, assumed and agreed to pay the mortgage on the land, and by a part payment of that debt either member of the firm could start anew the running of the statute of limitations, at least so far as the mortgage was concerned. (Fuller v. McMahan, 64 Kan. 441, 67 Pac. 828; Jackson v. Longwell, 63 id. 93, 64 Pac. 991; Perry v. Horack, 63 id. 88, 64 Pac. 990, 88 Am. St. Rep. 225; 22 A. & E. Encycl. of L. 211.)
We have examined the answer and the showing made by defendant Bucher on his application to have the judgment opened and to be allowed to come in and defend, and we think that, under the provisions of section 4511 of the General Statutes of 1901, it is sufficient.
Since there must be a new trial, we also think the plaintiff should be allowed to amend his petition so as to allege an additional payment on the note and mortgage.
The judgment of the district court is reversed and the case remanded, with instructions to allow the defendant Bucher to' come in and defend, and to proceed with a new trial in accordance with the views herein expressed.
All the Justices concurring. | [
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Per Curiam:
In this action the sufficiency of the evidence offered by Pat McCabe to sustain a charge of culpable negligence against the railroad company was challenged. A reading of the evidence satisfies the court that it fairly tended to support the claim that there was negligence in not jacking up the tender under which McCabe was required to work, and in not furnishing sufficient light so that he might work with safety. He was hurried into the dimly lighted place, the tender was not placed in proper position, and as he did not see the danger from the brake-hanger his hand was caught and crushed. Under the testimony it cannot be said that McCabe should have seen and appreciated the danger, nor that the risk was one assumed by him. The instructions fairly defined the issues to the jury, and their findings appear not 'to be inconsistent with the general verdict nor with each other. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action to recover land in Bourbon county, and for coal alleged to have been taken from the land. On August 18, 1886, H. N. May-berry was the owner of a quarter-section of land, and on that day he conveyed to the Mt. Zion Moore’s Branch Christian Church organization a small part, being twelve rods long and eight rods wide, out of the northwest corner of the land, describing it by metes and bounds. In 1896 he executed a deed to H. J. Winter, conveying the west half of this quarter-section, with the reservation “except one acre out of the northwest corner deeded to Mt. Zion Moore’s Branch Christian Church.” In 1898 Winter conveyed the same land to Ida Sheppard, describing the eighty-acre tract without excepting from it the church-lot. In 1902 Sheppard conveyed the land to Alma Beck, “except one acre off the northwest quarter deeded to Moore’s Branch Church.” In mortgages given on the west half of the quarter-section the church-lot was excepted, and designated as one acre out of the corner deeded to the church organization.
It was shown at the trial that the church-lot was enclosed with a stone fence and otherwise improved soon after it was purchased from Mayberry, and that the possession of the balance of the eighty-acre tract was held by his grantees, after he conveyed it in 1896. He claims that the exception of one acre out of the corner of the eighty-acre tract sold to Winter reserved to himself a square acre out of that corner, and that as the church organization obtained only three-fifths of an acre he still owned and was entitled to recover the remaining two-fifths of that acre. The defendants contend that the description in the deed manifestly excepted the tract actually conveyed to the church organization; and while that was a short acre it was the particular acre or lot conveyed to the church organization, and no more than that was intended to be excepted. The court sustained the contentions of the defendants.
It is true, as plaintiff argues, that a description of an acre or other definite quantity in the corner of a particular tract will ordinarily be held to mean such quantity lying in square form in the corner named. (Stewart v. Aten’s Lessee, 5 Ohio St. 257; Green v. Jordan, 83 Ala. 220, 3 South. 513; Lego v. Medley, 79 Wis. 211, 48 N. W. 375, 24 Am. St. Rep. 706; 4 A. & E. Encycl. of L. 792.) If there was nothing else in the description to aid in identifying the land the plaintiff would not be without support in his contention. Quantity is an aid, but does not control, in locating granted premises, where there are other things in the description that certainly define the land intended to be conveyed. Here there were other features of the description that showed plainly enough that it was the intention to describe and except a particular tract or lot rather than a particular quantity, and where this is true mere quantity or acreage will not control. (Armstrong v. Brownfield, 32 Kan. 116, 4 Pac. 185; Kemple v. Hilmore, 66 id. 810, 72 Pac. 1100.) The lot is described as the one conveyed to the church organization, and no other having been conveyed-to, or owned by, it the intention of the parties is reasonably clear. It had established and well-known boundaries, shown in the deed of conveyance, and marked out by a stone fence that enclosed it. Although it was a short acre it seems to have been designated and referred to in the deeds and mortgages as an acre. Following the rule that where other parts of a description are sufficiently certain to define the parcel of land intended to be conveyed they will overcome the mention of quantity, if the two do not coincide, we must hold that the acre referred to was the descriptive name of the lot, and not the precise quantity intended to be excepted from the conveyance.
Complaint is made of the admission of parol testimony, but we think it was justified. The difference between the quantity named in the deed and the other features of the description made a latent ambiguity that warranted the admission of testimony showing the intention of the parties. Such testimony may not be received to contradict the language of the instrument but to explain latent ambiguities, and to that end it may be resorted to in order to show the situation and condition of the property conveyed, the circumstances under which the conveyance was made, and the practical construction put upon the conveyance by the parties. . The testimony not only showed the situation of the property, the manner in which its boundaries were marked, and the possession and control of the same by the grantees of Mayberry, but the further fact that he negotiated for the repurchase of the property in controversy and to obtain the right to mine coal under the same. All these things contribute to explain the latent ambiguity in the deed and to show the intention of the parties to it.
The judgment of the trial court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Henry Knoll successfully resisted the payment of a promissory note given to W. M. Smith, and indorsed to the plaintiff, on the ground of a failure of consideration. The questions in the case are whether an oral agreement furnishing the consideration of the note can be repudiated by the plaintiff, and whether evidence relating to the agreement contradicts the written promise. The verdict, the special findings of the jury and the judgment rendered after a motion for new trial all being for the defendant, only the evidence in his favor need be considered.
Smith purchased a thrashing outfit at Salina. The sale was not made until the machine was delivered. The delivery was made by G. S. Lowell, president of the Lowell Windmill Manufacturing Company, who had the machine in his possession, arranged all the terms of the sale, and received payment of the price. The price was paid by notes given by Smith to the plaintiff as payee. The notes were secured by a chattel mortgage on the machine, given to the plaintiff as mortgagee. In the chattel mortgage a portion of the description of the property was that it had been manufactured by the plaintiff and purchased from it at Salina through its agent, the Lowell Windmill Manufacturing Company. The plaintiff accepted the notes and mortgage, and afterward foreclosed the mortgage and took the machine away from Smith by virtue of the rights it afforded.
Under the authorities the .foregoing facts were sufficient to prove that the Lowell company was the agent of the plaintiff in all of the details of the transaction so far described, but the proof does not stop there. Mr. Lowell, president of the company, testified unqualifiedly, and without objection on the part of the plaintiff, that he was at the time the agent of the plaintiff. This part of the proof of agency did not consist of mere declarations shown to have been made by him. It was his own testimony to the fact of agency, and hence was competent. (Howe Machine Co. v. Clark, 15 Kan. 492; Cowles & Eldridge v. Burns, 28 id. 32; French v. Wade, 35 id. 391, 11 Pac. 138; Ream v. McElhone, 50 id. 409, 31 Pac. 1075.)
A. B. Neeley, of Minneapolis, had taken Smith to the office of the Lowell company. The Lowell company agreed to divide its commission with him for his services in effecting a sale. Lowell desired that farmers’ notes to the amount of $1000 be procured for the company as additional security for the price of the machine. He arranged with Neeley to obtain them, and instructed Neeley to say to the farmers that the notes were to be taken as collateral on the sale of the machine to Smith; that Smith would do their thrashing ; and that the notes were to be paid to the plaintiff when the thrashing was done. He further gave Neeley a writing, to show to the farmers what kind of a thrasher Smith was. Neeley personally obtained from Knoll the note in suit, upon a promise made in accordance with Lowell’s instructions. Neeley named Smith as payee in the note, but it was indorsed direct to the company. Although Smith carried the notes to Salina, Neeley required him to receipt for them “to be delivered to G. S. Lowell, Salina, Kan.” Neeley was Lowell’s efficient arm, precisely the same as his secretary, who wrote the chattel mortgage, and the jury had the right to interpret the transaction as if the notes had been made payable direct to the plaintiff. The notes of other farmers were procured in the same way. Lowell took possession of them, and sent them all in to the plaintiff with Smith’s notes and mortgage for the machine. The plaintiff received and kept them, and sued Knoll upon the one he had given, without thrashing his wheat.
This state of facts renders it impossible for the plaintiff to claim that it is an innocent purchaser of the defendant’s note. If Smith himself had been required to furnish the collateral security, and Lowell had been ignorant of defenses to it, such a position might be assumed; but the knowledge of Lowell of conditions affecting the consideration of any of the collateral taken was the knowledge of the plaintiff.
In plaintiff’s assignments of error it is said that the testimony relating to this transaction was improperly admitted because no authority was shown to bind the plaintiff by a promise to thrash Knoll’s wheat. On the trial the jury returned the following findings of fact:
“At the time the note in question was executed did A. B. Neeley state to the defendant that the plaintiff would have said William M. Smith thrash his wheat for him? A. Yes.
“Was the consideration for the note in question a representation made by said Neeley to the defendant, at the time said note was executed, that the plaintiff would have said Smith thrash the defendant’s wheat for him? A. Yes.
“Did said Neeley, in taking the note in question from the defendant, act as the agent for the plaintiff in the sale of a thrashing-machine by said plaintiff to W. M. Smith? A. Yes.
“When the machinery in question was sold was the Lowell Windmill Manufacturing Company the agent of the plaintiff in this action? A. Yes.”
There is no assignment of error made or argued in the brief directly attacking the sufficiency of these findings of fact. They are submitted to as the established facts in the case. This being true, this court also will accept them. Hence, so far as the assignments of error now under consideration are concerned the authority of the agent was fully proved. How it was proved, or at what stage of the proceeding it was proved, the court will not investigate the record to discover. Therefore, the reason given for rejecting the testimony in question is confuted by the undisputed findings of the jury.
The plaintiff, however, makes an indirect attack upon the truth of the special findings by arguing a demurrer to the evidence. The proof that the Lowell company was the plaintiff’s agent in the sale of the machine was complete, and the taking of the collateral paper was an incident of that transaction, so that the plaintiff’s acceptance and retention of the farmers’ notes, and its' attempt to enforce them, taken in connection with the other facts in the case, furnished a sufficient foundation for the inference that the Lowell company had authority to procure collateral in connection with the sale of plaintiff’s machine. The approval of its agent’s conduct in this respect was some evidence of authority. The ultimate source of the agent’s authority is found in these acts of the principal, as the rule in this, respect requires.
If Lowell had authority to procure Knoll’s note, but had no authority to promise to do his thrashing, the plaintiff is bound, because a promise of that kind is clearly within the apparent scope of such an agent’s authority. It would be strange indeed if an agent should be sent among the farmers of a community to obtain their promissory notes for the benefit of a thrashing-machine company without power to render something in return. Since Knoll had no knowledge of any limitations upon the agent’s authority the plaintiff cannot now asert them.
“The sole question is, Was the general authority of plaintiff’s agent as traveling salesman, in the absence of notice to the contrary on the part of the defendant, as a matter of law, sufficient to bind plaintiff to the conditions attached to the contract of sale as pleaded? The trial court so instructed. The sale of the goods out of which this controversy arose fell directly within the scope of the agent’s authority. While that authority may, as between the agent and his principal, have been limited and the agent responsible to his principal for exceeding its bounds, yet, as between plaintiff and defendant, as no limitation upon the agent’s authority was known to defendant, and as the agent acted within the apparent scope of his authority, the conditions attached to the sale bound plaintiff.” (Ludlow v. Fribley, 67 Kan. 710, 711, 74 Pac. 237. See, also, Babcock v. Deford, 14 id. 408; Banks Bros. v. Everest & Waggener, 35 id. 687, 12 Pac. 141.)
There is no conflict between the decisions in the Ludlow case and the cases of Kane v. Barstow, 42 Kan. 465, 22 Pac. 588, 16 Am. St. Rep. 490, and Wilcox v. Eadie, 65 id. 459, 70 Pac. 338, although the syllabus of the Kane case is likely to be misunderstood. These were cases involving attempts to deduce agency from an appearance of authority, and, of course, agency and authority must always be proved as facts when denied; but in the interpretation of an authority, in a controversy between the principal and a third person, apparent and not actual authority controls, when no limitation has been disclosed.
. Concede, however, that the Lowell company had no authority whatever to go out and procure collateral security in connection with the sale of plaintiff’s machines. The plaintiff is then in the attitude of seeking to appropriate without investigation or inquiry all the benefits of Lowell’s deal, and it is elementary law that a party cannot do this and reject the uncomfortable features of the bargain. The decisions of this court upon the subject are so plain that a discussion of the proposition is unnecessary. (Babcock v. Deford, 14 Kan. 408; Waterson v. Rogers, 21 id. 529; Ehrsam v. Mahan, 52 id. 245, 34 Pac. 800; Railway Co. v. Cooper, 57 id. 185, 45 Pac. 587.)
In adopting the unauthorized conduct of its agent the plaintiff was obliged to inquire and ascertain Lie full extent of it or be bound in the same manner as if it had done so, and it cannot now enforce a portion of Lowell’s agreement without assuming all the liabilities attached to it.
“. . . Upon learning of the unauthorized act of his agent, the principal, deeming the act to be to his advantage, may expressly ratify it and avail himself of its benefits; or, deeming it to be to his detriment, he may expressly repudiate it; or, as is more often tne case, he may take no decisive step in either direction, but tacitly leave his intention to be determined by his. subsequent acts. He is under no obligation to expressly affirm, but if he decides to do so, he may fully inform himself of all the material facts, or he may intentionally assume the risk without inquiry, or he may deliberately ratify upon such knowledge as he possesses without caring for more. . . .”
“It is a fundamental rule that if the principal elects to ratify any part of the unauthorized act he must ratify the whole of it. He cannot avail himself of it so far as it is advantageous to him, and repudiate its obligations; and this rule applies not only when his ratification is express but also when it is implied.”
“One of the most unequivocal methods of showing ratification of an agent’s act is the bringing of an action at law based upon such act. . . .” (Mech. Ag., $$128, 130, 151.)
Ratification is equivalent to an original grant of authority. The situation of the parties is the same as if the plaintiff had induced the contract in the first instance, through an agent duly appointed for the purpose. Proof of ratification includes proof of agency and authority, and may be made under a pleading charging the ratified act to be that of the principal.
“If proof of agency were needed to establish a trust, the evidence adduced is sufficient to show ratification by plaintiff of the conduct of the investment company in receiving the insurance money. Such ratification is equivalent to prior authority, and need not be specially pleaded.” (Smith v. Des Moines National Bank, 107 Iowa, 620, 624, 78 N. W. 238.)
“The proposition is elementary that a corporation acts only through its officers and agents. It is a rule of pleading scarcely less elementary, that the allegation in the complaint that defendant made and executed the written contract referred to sufficiently avers the making of the instrument in behalf of the company by its duly authorized officers or agents. . . . We conclude that it was competent for plaintiff to sustain the averment in his complaint by proof, showing either an original execution of the lease with due authority, or a subsequent ratification of Elliott’s unauthorized act.” (Hoosac Mining & M. Co. v. Donat, 10 Colo. 529, 533, 16 Pac. 157.)
Such being the law, the evidence proved agency and authority for the agreement in question, and the demurrer to the evidence was properly overruled.
The plaintiff argues that the promise to Knoll to thrash his wheat was a mere inducement for the execution of an accommodation note for Smith. The jury, however, found from the evidence that the promise was the consideration for the note, and the conclusion to be drawn from an interpretation of the conversation between Neeley and Knoll is one of fact.
It is further urged that the evidence assailed was introduced for the purpose of contradicting or qualifying the absolute terms of a promissory note, and many cases are cited in which it is decided that such cannot be done. No court has expressed itself upon that proposition with greater emphasis than this one; but the rule of law announced in the cases referred to has no application to the facts of this controversy.
“It is a well-established principle of the law, pertaining to bills of exchange and promissory notes, that in all cases in which the consideration is open to inquiry, parol evidence is admissible to show the want, failure, or illegality of the consideration, or the fact that the consideration differed from the one expressed in the instrument upon which the suit is brought.” (4 A. & E. Encycl. of L. 199.)
Such is the rule in this state. (French v. Gordon, 10 Kan. 370; Dodge v. Oatis, 27 id. 762.)
Certain instructions to the jury are complained of, but the special findings show they could not have operated to the plaintiff’s prejudice.
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.:
Defendants in error recovered from the city because of the drowning of their son. He was a bright, capable boy, twelve years old, residing with his parents in Kansas City, Mo. Without the knowledge of his mother as to his destination he received her consent to be away from home for a few hours, and in company with some companions about his own age, and under their guidance, he went over to Kansas City, Kan., for the purpose of going in bathing in a pond of watér. This pond had been created by reason of the city’s bringing a street across a deep ravine up to grade. On the upper side of this embankment, or fill, water had accumulated, and the pond in question had formed, having been there some ten or twelve years. It was from thirteen to twenty feet deep in some places, being comparatively shallow some little distance out from the shore and then dipping abruptly into the deeper portion, the bottom being of slippery clay. About 1896 a sewer made of tile had been placed in an alley which crossed this pond. This sewer was constructed over the surface of the water by driving a series of piles through the pond, upon which a trough holding the pipe in place was constructed. This pond was situated in a thickly settled residence portion of the city, and was, and had been for a long time, resorted to by the boys of the city for the' purpose of swimming and fishing. The structure used for the carrying of the sewer-pipe was an attractive and easily. utilized means of enabling them to get out to the deeper portions of the pond, and they did so use it. Young Siese was unacquainted with the character of this pond, this being the first time that he visited it. His companions were able to swim, but he was not. Arriving at the place they all went in bathing. The Siese boy was warned not to go out too far; that the water was deep, and if he should go too far out he would get drowned. After some little time spent by the boys, those who could swim jumping from the sewer into the deeper portions, and young Siese into the shallower places, the other boys came out to dress. Upon looking around for him they saw him struggling in the deeper water, and as they were unable to afford him help he was there drowned. Whether he jumped from the sewer into the deep water, or whether, playing in the shallow water, he got too near the precipitous and slippery edge of the deeper water and was thereby plunged into it, is not known.
But two questions are presented here. These arise upon a demurrer to the petition, objection to the introduction of evidence, and demurrer to the evidence. The first is that there was no sufficient allegation of damage to support a verdict found in the petition. Upon this point the second amended petition says:
“That Eugene Siese was a strong, healthy boy and was capable of earning three dollars per week; that by reason of the death of their said son aforesaid plaintiffs have been damaged in the sum of $10,000.”
The contention is that in the absence of a statement that the boy lived with his parents, or that he in any manner contributed to their support, or that there was any reasonable likelihood that he would in the future at any time contribute anything to them, the mere allegation that he was able to earn three dollars per week at the time of his death was not an allegation of any damage. It must be admitted that this allegation was very meager, but in the absence of any motion to make more definite and certain it was sufficient to authorize recovery. Parents have a legal right to the services of their minor children. That a son is capable of earning a given amount is in a way an allegation that hig- services are worth to the parents that sum, and that to be deprived of those services is an injury to them.
. The other question is one going to the right under the facts of the case to the* recovery of any amount whatever. The city’s contention is that the facts of this case do not bring it within the doctrine of the so-called turntable cases, and it endeavors to make a distinction between the question of knowledge of the danger, and judgment as to the result of the exposure to danger; that inasmuch as in this case the boy was of sufficient maturity to know the danger into which he ventured, and had been advised of that danger and warned to shun it, he must be held responsible for the fatal results.
We are unable to discern the essential difference between the facts of this case and those of the case of Price v. Water Co., 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625, where the principle of the turntable cases, as developed in the argument of the court, is applied to cases of this character. We think this case must be ruled by that one, and no good purpose would be subserved in amplifying the reasons therefor there found. (See, also, City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Power Co. v. Healy, 65 Kan. 798, 70 Pac. 884.)
The judgment of the court of common pleas is affirmed.
Johnston, C. J., William R. Smith, Greene, Burch, Mason, Clark A. Smith, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff commenced this action to
recover $1950, the balance alleged to be due on a promissory note executed by the defendants. The defendants pleaded five so-called defenses, which, however, contained only two defenses: (1) That the note was given to the bank in payment for cattle owned by it and purchased by the defendants from the bank; that the cattle were diseased when purchased, and the bank knew they were diseased; and that large numbers of the cattle died of such disease, to the damage of defendants, for which they ask judgment. (2) That the note in suit was given for money borrowed from the bank to purchase certain cattle, known as the Donaldson cattle, upon which the bank held a bill of sale as mortgagee to secure a large indebtedness of Donaldson to the bank; that the defendants refused to buy the cattle on the representation or guaranty of Donaldson that they were sound and healthy, but were willing to purchase on the guaranty of the bank that they were sound and free from any disease; that the bank did guarantee the cattle to be free from any contagious disease; that upon such guaranty they purchased the cattle and gave the note in suit to the bank for the money with which to pay the purchase-price; that the cattle were badly infected with a contagious disease, of which large numbers died, to the damage of defendants, for which they ask judgment. Judgment was for defendants.
The plaintiff assigns as error: (1) The overruling of its demurrer to the third, fourth and fifth defenses in defendants’ answer; (2) in denying its motion for judgment on the special findings of the jury; (3) in denying its motion for a new trial; (4) in rendering judgment for the defendants.
The defendants adopted the vicious system in pleading of making their second cause of defense a part of their third, fourth and fifth causes of defense. The plaintiff contented itself with this form of pleading and did not ask the court to make defendants conform their pleading to the code by separately stating and numbering each cause of defense. In the consideration of the demurrer to each of the three separate causes of defense the court was bound to consider the second cause of defense as a part of each. Thus supplemented, each stated a cause of defense and the demurrers were properly overruled.
The second contention is that the court should have rendered judgment for plaintiff on the special findings. The general verdict in this case answers all questions of fact for the defendants, except those specially found for plaintiff by the special findings. The jury specially found that the plaintiff was not the owner of the cattle when they were sold to defendants and had no interest therein except as a mortgagee. These findings sustained the contention of the plaintiff on that proposition. The other defenses, however, that the bank as mortgagee joined with Donaldson in the sale of the cattle, and as such mortgagee guaranteed them to be sound and in good health, is found by the general verdict to be true. There is nothing in the special findings inconsistent with or contradictory of this general finding. The court could not, therefore, have given judgment for plaintiff on the special findings. Upon this latter proposition, however, the plaintiff contends that there was no consideration for making such guaranty, and, if actually made for a sufficient consideration, a bank cannot be held on such a contract. When the defendants purchased the cattle of Donaldson and the bank, Donaldson was largely indebted to the bank. It held a bill of sale for these cattle as security for that debt. It appears from the evidence that Donaldson was a man without means; that he bought 1000 head of cattle in Colorado, shipped them to Kansas, and that the bank had furnished all the money except $800.
A bank may loan money and take chattel-mortgage security therefor. It may, either before or after the maturity of the debt secured thereby, sell such property and apply the proceeds to the payment of the debt; or it may, for the purpose of getting more desirable security, with the consent of the mortgagor, sell the collateral at private sale, and in making such sale guarantee the title, quality, soundness or healthful condition of such security. If it gives such guaranty it will be held upon such contract as a natural person would be held. The interest that the bank had in the cattle was sufficient consideration for the making of the guaranty. Upon this defense the special findings of the jury were not contradicted by, or inconsistent with, the general verdict. This contention being supported by evidence, the defendants were entitled to a judgment on the verdict.
No special reasons are presented why the plaintiff should have had a new trial. The judgment is, therefore, affirmed.
All the Justices concurring. | [
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Per Curiam:
The defendant in error moves the court to dismiss this proceeding because the amount in ■ controversy does not exceed $100, exclusive of costs. The amount in controversy is to be determined by the amount claimed by the plaintiff in his petition, which is $120. The motion is denied.
This was an action in conversion to recover the value of certain corn. It appears that plaintiff rented defendant’s farm, his tenancy expiring March 1, 1903, and when he surrendered possession, on March 9, 1903, he left standing in the field certain Kafir-corn, of the value of $60, and field-corn on the stalk, of the value of $60. This is the property which it was claimed defendant converted. The defendant’s contention was that by reason of the negligent and careless manner in which plaintiff planted and cultivated the Kafir-corn it was not worth harvesting and plaintiff had turned over to him that portion of the crop. When the defendant resumed possession of the farm he gathered the corn on the stalk,- and stored one-third of it on a farm occupied by himself and cribbed the remainder on the farm where it had grown. Under the contract of tenancy the landlord was to have one-third of the crop. On March 11, after the plaintiff left the farm and defendant had resumed possession, the plaintiff sent a man to gather the corn, and the defendant refused to permit him to do so. Plaintiff testified that he called upon defendant at once to ascertain what he had determined to do, and that defendant then claimed to be the owner of all the corn.
The testimony was conflicting on almost every question. The contention on the part of plaintiff was that the defendant had converted his property; the defendant contended that he 'was the owner of the crops. The case was one that involved disputed questions of fact, and upon the evidence the jury might have found for either party. Since they are the triers of the facts, the case should have been submitted to them.
The judgment is reversed, and the cause remanded for further proceedings. | [
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Per Curiam:
A firm of real-estate agents brought an action to recover a commission on the sale of a farm. The case was tried and a verdict was rendered against the plaintiffs. They now prosecute error, but the only argument made for a reversal is based upon the claim that there was no evidence to support the verdict, and that a peremptory instruction should have been given to find for the plaintiffs. The evidence was conflicting. It would serve no useful purpose to review it in detail. It is sufficient to say that the admitted facts did not compel a finding for the plaintiffs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff prosecutes error to reverse an order of the district court of Sedgwick county sustaining a demurrer to his petition. It appears that the defendant is the owner and operator of a line of railroad from Wichita west through Sedgwick, Sumner, Kingman and Pratt counties; that there was on this line a station called Hukle; that some time prior to the bringing of this action the defendant tore down the station-house, office, and cattle-pens, removed them from this place, and discontinued the station. As a basis for reaching the question in this case, we shall assume that the petition alleged that the Atchison, Topeka & Sarita Fe Railroad Company, the judgment debtor, which was the preceding company, was the owner of the projected road when the contract pleaded by plaintiff was made, and that such company built, owned and operated the road, and maintained the depot in question, until 1896. The petition further alleged that one Benedict was the agent of the Atchison, Topeka & Santa Fe Railroad Company in securing its right of way; that, as such agent, he made a contract with plaintiff by which it was agreed that if he would assist Benedict in securing this right of way the company would build a station-house, telegraph and ticket office, cattle-pens, and side-tracks, and maintain a station permanently, at Hukle; that pursuant thereto the-plaintiff expended money, time and labor securing the right of way, all of the value of $1200; that the road was constructed, and a station-house built and maintained so long as that company owned and operated it; that in 1896 it was sold at a judicial sale to the defendant, the Atchison, Topeka & Santa Fe Railway Company, which continued to maintain such station until a short time prior to the beginning of this action, when it removed the buildings and improvements and abandoned the station. Plaintiff seeks to recover from the defendant company damages for such alleged acts, as a violation of his contract.
This is not a new question. Many instances may be found where attempts have been made to hold the purchaser at a judicial sale of railroad franchises and property liable for the personal contracts or obligations of the preceding company. We have been unable to find an instance where such purchaser has been so held, except where it assumed the obligation, or where it was specifically prescribed in the decree or imposed by statute.
Speaking of the liability of a purchaser of a railroad for the debts and contracts of the old company, in section 526 of volume 2 of Elliott on Railroads it is said:
“The purchaser generally takes the property freed from the debts and contracts of the vendor, except, so far as his title is made subject thereto by statute or by the terms of the order of sale.”
In Clark and Marshall’s Private Corporations, volume 2, section 342, the rule is stated as follows:
“As a general rule, a separate and distinct corporation, which has succeeded, by a valid purchase and transfer, to the property and franchises of another corporation, is not liable, merely by reason of its succession, for the general debts or on the general contracts of the other corporation. It is not liable at all for such debts or on such contracts, in the absence of a special agreement to pay or assume the same, nor is the property in its hands liable to be subjected to the same, in the absence of a valid lien thereon, unless it affirmatively appears that the transfer of the property and franchises of the other corporation constitutes, in fact or in law, a fraud upon its creditors.
“This principle clearly applies when a corporation purchases the property and franchises of another corporation at a sheriff’s or marshal’s sale on an execution against the latter, and receives a conveyance in pursuance thereof. If the sale is authorized by law, the corporation takes the property free from any liability for existing debts of the other corporation, not secured by prior liens, and from all obligations of the other corporation of a strictly personal character.”
The case of G. C. & S. F. Ry. Co. v. Newell, 73 Tex. 334, 339, 15 Am. St. Rep. 788, 11 S. W. 342, was an action brought by Newell to recover damages for the breach of a contract which the Central & Montgomery Railway Company made with him and other residents of the town of Montgomery in the year 1879. The contract provided that, in consideration of the payment of certain sums subscribed, the Central & Montgomery Railway Company would establish, build and maintain permanently its depot at some point within 1000 yards of the court-house in Montgomery. New-ell alleges that he subscribed and paid the company $1000; that the company constructed and maintained its depot within the agreed distance from the courthouse, where it remained until 1885; that in-1882 the Central & Montgomery Railway Company, its rights and franchises, passed into the possession and control of the Gulf, Colorado & Santa Fe Railway Company under some contract, or pretended purchase, or by usurpation; that in 1885 this railway company violated this contract by establishing a depot more than 1000 yards from the court-house, and abandoned the old one. To this petition the company demurred on the ground of a defect of parties defendant, its predecessor not being joined, and on the ground that no facts were stated showing any liability of defendant for a breach of the contract with the other company. The demurrer was overruled, and thereupon the railway company answered that it had purchased the-railroad, its rights and franchises, of the Central & Montgomery Railway Company and owned them free from all debts; that it had no notice of plaintiff’s contract and never in any manner assumed the indebtedness alleged in plaintiff’s petition; that it purchased at sheriff’s sale under a valid judgment and execution. A demurrer to the answer was sustained. The rulings upon these demurrers were the questions presented to the supreme court, and in the opinion it was said:
“A person or corporation, however, who acquires the property and franchises of a railway corporation through sale under execution, takes it freed from all liability for its former indebtedness not secured by prior lien, and from all mere personal obligations assumed by the former owner.
“That appellant is not liable on the contract made the basis of this action under the averments of the pleadings seems to us clear. The contract was one personal in its character, which could not fix any obligation whatever on appellant.”
This principle was followed in Eddy and Cross, Receivers, v. Hinnant, 82 Tex. 354, 18 S. W. 562; Texas Cent. Ry. Co. et al. v. Lyons, 34 S. W. (Tex.) 362; Dallas Consol. Traction Ry. Co. v. Maddox, 31 S. W. (Tex.) 702.
In the case of The City of Menasha et al. v. The Milwaukee & Northern R. R. Co., Imp., 52 Wis. 414, 9 N. W. 396, the court said:
“A railroad company, organized under the provisions of section 1820, R. S., with power to purchase the franchises and property of an older company, previously sold under a mortgage, as well as to construct and operate other lines of road, is not, by virtue of such purchase, an assignee of the older company, so as to be bound by any of its contracts, except such as are a lien upon or otherwise bind the property and franchises thus purchased.”
In the case of People, ex rel., v. L. & N. R. R. Co. 120 Ill. 48, 10 N. E. 657, it was said:
“A contract of a railway company to perform certain conditions with the county making a subscription or donation in its aid in consideration thereof, is, however, merely a personal undertaking, and is not in the nature of a covenant running with land, and a purchaser of such company’s road and property is under no personal obligation to perform such contract.”
In the case of Hoard v. Chesapeake and Ohio Railway, 123 U. S. 222, 8 Sup. Ct. 74, 31 L. Ed. 130, it was held:
“A railway company organized to receive, hold and operate a railroad sold under foreclosure of a mortgage, in the absence of a statute or contract, is not obliged to pay the debts and perform the obligations of the corporation whose property the purchasers buy.”
The principle announced in these cases appears to be absolutely applicable to the facts stated in the present petition.
We have examined the cases of Railway Co. v. Davenport, 65 Kan. 206, 69 Pac. 195; Railroad Co. v. Yount, 67 id. 396, 73 Pac. 63, and the other Kansas cases cited, but we did not find any principle stated in those cases which is applicable to this, and the same may be said of the other authorities cited.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff sought by this action to eject the defendants from the lands described in his petition. They pleaded title and right of possession under a tax deed. Upon a trial of the issues thus joined judgment was rendered setting aside the deed and decreeing the amount of taxes paid by the defendants to be a lien upon the premises. Thereafter the taxes were paid by the plaintiff, and subsequently the defendants set up a claim for valuable and lasting improvements under the occupying-claimants act. A jury assessed the value of the improvements at $433, and the value of the land without improvements at $300. Thereupon the court rendered the following judgment and decree:
“It is further considered, ordered and adjudged by the court that the plaintiff shall have to and including March 15, 1904, in which to make an election to receive the value of said land without said improvements, to be paid by the said defendants thereafter, and on or before April 1, 1904, upon a tender by the plaintiff to the defendants of a general warranty deed for the land aforesaid, which tender shall be made on or prior to March 15, 1904, aforesaid.
“It is further considered, ordered and adjudged by the court that in case the plaintiff shall, within the time allowed, elect to tender, and tender, a deed for said land and to receive $300, the valuation of the same, exclusive of improvements, and if the defendants shall fail or refuse to accept said deed and pay said $300 within the time allowed by this judgment, then the plaintiff shall have the right to apply to this court for an order that said land be sold as upon execution, and for the application of the proceeds of such sale to the satisfaction, first, to the amount due defendants for their improvements, to wit, $433, and that the balance of said proceeds be paid to the plaintiff ; and said plaintiff may apply to this court for any further relief it is proper for the court to grant in the premises; but it is further considered, ordered, adjudged and decreed by the court that whatever the plaintiff may do with reference to an election and tendering a deed, the defendants shall not be evicted from said land under any writ or process from this court in this case until said defendants shall be paid the amount of their claim for such improvements, to wit, $433; and it is further considered, ordered and adjudged by the court that if plaintiff pays to said defendants said sum of $433 for their said improvements, then a writ of eviction be issued, commanding the sheriff to oust and remove the defendants from said land. To which judgment and decree and orders made therein all parties except. Said judgment, decree and orders are made by the authority of Claypoole v. King, 21 Kan. 602; Stephens v. Ballou, 27 id. 594, and Mercer v. Justice, 63 id. 225, 65 Pac. 219.”
The first contention of plaintiff in error is that he was entitled to a decree giving him the right to elect to tender to the defendants a warranty deed and to accept the value of the land so found by the jury, and, in case the defendants should refuse to pay such value within a time to be fixed by the court, to have an order of eviction. This contention cannot be sustained. Under sections 601 and-608 of chapter 80 of the General Statutes of 1868, and prior to the enactment of chapter 102 of the Laws of 1873, such a judgment was authorized, but by the latter act these sections were repealed and so amended as to provide that no order of eviction should issue until the occupying claimant should have been paid the assessed value of his improvements. (Stephens v. Ballou, 27 Kan. 594; Boeken v. Alderman, 26 id. 738; Claypoole v. King, 21 id. 602.)
A further contention is that the court erred in decreeing that if the plaintiff should elect to accept the value of the land and should tender a warranty deed therefor to defendants, and they should refuse to accept the same and to pay the assessed value of the land to plaintiff, the value of the defendants’ improvements should be a first lien on the land. Plaintiff in error claims that he was entitled to a decree that if he should elect to sell the land to defendants at its assessed value and should exercise such right in the manner provided by statute, and the defendants should refuse to accept the deed and pay therefor, the value of the land should be adjudged a first lien on the property. Our statute does not say which party shall have a prior lien, nor does it make any provision for the enforcement of plaintiff’s right after ’ such election. Equity, however, having obtained jurisdiction of the parties and subject-matter, may make and enforce all decrees necessary for the full and complete adjustment and final determination of all questions between the parties with reference to the subject-matter of the suit.
The superior equities seem to be on the side of plaintiff. The defendants entered the plaintiff’s lands without his knowledge or consent and under a doubtful title; they knew that plaintiff was the owner of the land, and whatever right they had was obtained ex parte, which should be critically scrutinized and strictly construed against them. The improvements were of their own selection, and, whether providently or improvidently made, whether the location and surroundings justified them, or whether such improvements were made with reference to some specific business or enterprise in which they were engaged or contemplated, were all matters with which plaintiff had nothing to do. They entered upon the lands and made the improvements knowing that if the owner of the property should be successful in contesting their title he might elect to sell them the land at whatever price a jury should say it was worth without the improvements. Under such circumstances it would be highly inequitable to require the plaintiff to bear the loss resulting from the improvements made by the defendants.
There is, however, no room for judicial speculation over this question in this state. In Stephens v. Ballou, 27 Kan. 594, this court determined the priority of liens in favor of plaintiff. At page 603 it was said:
“If, however, the plaintiff elects to take the value of the land, and tenders a deed to the defendant, then the land in law and equity becomes the property of the defendant, and all that plaintiff is then entitled to is the value of the land without the improvements. In just what way he may recover that value, the statute, as it now stands, does not prescribe. Under the statute before it was amended in 1873, if the defendant did not pay the value of the land to the plaintiff within a reasonable time — to be fixed by the court —the plaintiff might then have his writ of eviction to obtain possession of the land; but under the law as it now stands, he is not entitled to any such writ. Under the law as it now stands, the plaintiff would probably be entitled to commence an independent action to subject the land, with the improvements, to the payment of his claim, and to sell the land, with the improvements, for that purpose; for undoubtedly his claim is a lien, and a prior lien, upon the land. It is possible, however, that the plaintiff may also have some other remedy.”
The views thus expressed are entirely satisfactory. If such conclusion is not correct, then the provisions of the statute giving to plaintiff the right to elect to sell the land to defendants are inoperative and useless. The owner of land may sell it to a purchaser willing to buy without statutory authority. The provision in question compels the occupant to buy if the plaintiff elects to sell to him, or to allow the land to be sold to satisfy the plaintiff’s lien.
Some authorities hold that the owner of the superior title and the occupying claimant are tenants in common, and in case of a sale of the land their equities should be apportioned. This appears to have been the decision in Leighton v. Young, 10 U. S. App. 298, 52 Fed. 439, 3 C. C. A. 176. The learned judge who wrote the opinion drew his conclusion largely from decisions of state courts rendered under statutes that made such persons tenants in common, although the statute under consideration was that of Nebraska, which is very similar to our own.
For the reasons herein suggested the judgment of the court is reversed, and the cause remanded with instructions to enter a decree in accordance with this opinion.
All the Justices concurring. | [
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Per Curiam:
The proceedings on appeal from the board of county commissioners gave the district court jurisdiction. The appeal bond was not void, and the court did not err in permitting its amendment. There was no error in refusing to permit the county to show by parol evidence that a cattle-pass was in contemplation when the road was laid out and established. Nothing in the proceedings of the board disclosed such a state of facts.
After the appeal the question was narrowed down to the amount of damages to which the plaintiff was entitled. (Cowley County v. Hooker, 70 Kan. 372, 78 Pac. 847.) In its answer the board made a tender of $111 to the plaintiff. The instructions asked by the county attorney, and refused, were not signed by him as required by the statute, and cannot be considered. We have examined the instructions given and find that they fairly presented to the jury the law of the case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
The plaintiff in error, through its secretary, Skelton, who went to Elwood, Ind., for that purpose, and had a personal interview with Gessner, the general manager of the defendant in error, ordered over a telephone about 5140 feet of four-inch gas-pipe to be shipped from Elwood to Fredonia, Kan. The pipe was shipped as ordered, but there was a dispute as to the price stated by Gessner to Skelton over the telephone, the plaintiff in error claiming it was twenty-five and one-half cents per foot and the defendant in error that it was thirty-five and one-half cents per foot. When the pipe was loaded the supply company mailed to the gas company a bill for the same at thirty-five and one-half cents per foot, and upon receipt of the bill the gas company immediately replied by mail that the contract price was twenty-five and one-half cents per foot. Upon receipt of this reply by the supply company it wired the gas company that if it could not use the pipe at thirty-five and one-half cents to hold it subject to the supply company’s order. This telegram was received after the pipe arrived at Fredonia but before it was unloaded.
The gas company, however, unloaded and appropriated the pipe to its use and immediately mailed a certified check to the supply company for the price of the pipe at twenty-five and one-half cents, with instructions to receive the check in full payment for their claim or to return it. The supply company soon thereafter replied that it could not receive the check in full payment but did not return it.
The check was mailed about October 12 and several letters passed between the parties up to January following, in one of which the supply company wrote asking a remittance of $500 more, indicating, it is claimed, that it had accepted the check to apply on ac count. The check, however, was never cashed and there is no claim that the gas company lost anything by reason of the check’s being retained, except possibly the use of the money deposited in the bank to secure the certification of the check.
All the letters from the supply company repudiated the idea of accepting the check in full payment, and prior to bringing this suit Gessner, for the supply company, came to Fredonia, Kan., and attempted to secure payment of the bill in the amount claimed by his company, but the gas company refused to pay more than the amount of the check. Upon the return of Gessner to Elwood the check was sent back to the gas company by registered letter and it immediately returned it by mail to the supply company. Soon afterward this suit was brought in Wilson county for the price of the pipe at thirty-five and one-half cents. The verdict and judgment were for the full amount claimed by plaintiff, with interest, and the defendant brings the case here for review.
We. have examined all the assignments of error, and find that with the exception of the request for an oral instruction pending the argument, in the refusal of which we see no error, they are practically embraced in the following: (1) In admitting improper and incompetent evidence; (2) in submitting to the jury the question whether or not the check was retained an unreasonable length of time.
The first objection relates to the admission of the depositions of two witnesses, in which, after testifying to facts which, if true, identify the conversation as the one had between Skelton and Gessner over the telephone at Elwood when the pipe was ordered by Skelton, they relate that they were in the supply company’s office and heard what Gessner said as to the price of the pipe, and that he stated that the price of the pipe was thirty-five and one-half cents per foot. We think this was competent, the conversation and contract over the telephone being admitted by both parties and the statement of Gessner as to the price being alone in issue.
As to the second alleged error, the evidence showed that the check was retained by the supply company from seventy to eighty-five days before it was returned to the gas company, and the latter contends that this fact alone constituted an acceptance of the check by the supply company and constituted a complete accord and satisfaction of the disputed claim. No case cited by the gas company and none that we have found goes to this length. If the supply company had cashed the check it would have constituted an accord and satisfaction and it could have recovered no more; or if the bank had failed, and the money by this or other means had been lost, the loss, at least, should have fallen upon the supply company. The statute relating to the acceptance by a third party of a bill of exchange has no application.
We think the instruction of the court to the jury, which was, in substance, that if they found the plaintiif had, under all the circumstances, retained the cheek for an unreasonable length of time they might regard it as an accord and satisfaction and find for the defendant, was extremely favorable to the defendant, if not erroneously favorable.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Clark A. Smith, J.:
In this case the plaintiff, Mentzer, sued the defendant Burlingame, and five other defendants, for contribution to judgments on ten different promissory notes given for different amounts at different times from about May 11, 1897, to February 4, 1902. The plaintiff alleges that all of the notes were given to secure loans negotiated by a corporation organized for the purpose of building and equipping a creamery; that all of the signers were sureties for the creamery company and were officers and members of the creamery association; that the plaintiff and one of the defendants signed all of the notes; that two of the defendants signed four notes each; that one signed three notes, and that two of the defendants signed only one note; that some of the notes were given in renewal of others, and that the indebtedness of the creamery association secured by the notes arose out of the transaction of building and equipping a creamery; that judgments had been rendered against him for ..the entire amount and he had paid them in full. The petition purports to set forth but one cause of action and states the sum claimed from each defendant.
The defendants severally demurred to the petition on three grounds': (1) That there was another action pending between the same parties for the same cause; (2) that several causes of action were improperly joined; (3) that the petition did not show facts sufficient to constitute a cause of action against this defendant. Each demurrer was sustained by the court, upon the grounds that there was a misjoinder of actions and that the causes of action were barred by the statute of limitations.
The plaintiff elected to stand upon his petition and predicates the proceeding in error in this court upon the ruling upon the demurrer.
It is apparent from the petition, numbering the notes from 1 to 10, that notes Nos. 1, 2, 4, 6, and 7, at least, were given for independent loans at different times, and that all of the notes except No. 4 were given to one man, or to a bank owned by him, and that No. 4 was given to one Mrs. McKinney for a $400 loan. Two of the defendants signed note No. 4, and no other, and one of the defendants did .not sign this note.
Whatever may be the rule of contribution as between signers of different notes given to secure the same indebtedness, or of uniting in one action for contribution all sureties on notes given for the same indebtedness, it must be conceded that sureties on different notes for independent loans are not cosureties, and that each separate loan constitutes a separate cause of action, and that one who, as surety, signs a note which is a separate cause of action is not affected by an action on another note to which he is a stranger. If so, these separate causes of action, even if they arose out of the same transaction, were improperly joined. (L. N. & S. Rly. Co. v. Wilkins, 45 Kan. 674, 26 Pac. 16; Hurd v. Simpson, 47 id. 372, 27 Pac. 961; Rizer v. Comm’rs of Davis Co., 48 id. 389, 29 Pac. 595.)
If the entire indebtedness secured by these notes had been established against the corporation, and the plaintiff, as an officer of the corporation, had paid it and sought contribution from the defendants as stockholders, a different rule would perhaps apply. The two defendants who signed note No. 4 to secure the loan of $400 from Mrs. McKinney are in no sense co-sureties with the plaintiff or with the defendants who, months before, signed notes Nos. l and 2, to secure loans for $1000 and $1200, respectively, from a bank. Nor did the indebtedness to Mrs. McKinney and to the bank arise out of the same transaction, even if all the money borrowed was used by the corporation for the general purpose of erecting and equipping a creamery.
In the judgment of dismissal the trial court specifically stated that it sustained the demurrer not only upon the ground that several causes of action were improperly joined but also upon the ground that the sev eral causes of action were barred by the statute of limitations. The petition does not show upon its face that the causes of action are barred. A surety’s right of action for reimbursement or contribution accrues when he pays the debt of his principal or cosureties, and the statute then begins to run. The fact that an action on the original debt is barred at the time the surety begins his proceeding for reimbursement or contribution is immaterial; it is only necessary that the debt be not barred at the time the surety pays it.
The ruling sustaining the demurrer on the ground of misjoinder of actions is approved, but the judgment of dismissal must be vacated because of the error in sustaining the demurrer on the ground that the causes of action were barred by the statute. of limitations. By the judgment of dismissal on the grounds stated the plaintiff was denied the statutory right of filing several petitions and proceeding without further service. The case is remanded, with instructions to proceed in accordance with the views herein expressed.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued for damages for his having been removed from one of the defendant’s passenger-trains. He desired transportation from Lost Springs to Lineolnville, and purchased a ticket affording him that right, but took a train at Lost Springs that, under the regulations of the railway company, did not stop at Lineolnville. ' After the train was in motion the conductor advised the plaintiff of the facts, and offered to carry him beyond Lineolnville to Marion. The plaintiff declined to go on to Marion, whereupon the conductor stopped the train and the plaintiff left it without inviting the use of force. It was raining at the time, and because of his exposure before finding shelter he claimed his health was affected. He also claimed that the delay occasioned by the episode caused him to suffer loss. The portion of the plaintiff’s petition relating specially to the contract of carriage reads as follows:
“Plaintiff further alleges that on or about the 4th day of October, at about 4:30 P. M., he purchased a ticket of defendant’s said agent at Lost Springs, Kan., for the said town or city of Lincolnville, a copy of which ticket is hereto attached and marked ‘Exhibit A,’ which ticket is a contract on the part of said defendant to carry this plaintiff to the said city of Lineolnville upon the first passenger-train that left the said town of Lost Springs after the purchase of said ticket or the making of said contract between this plaintiff and said defendant.”
Throughout the petition the ticket is referred to as a contract for transportation to Lincolnville on the particular train that plaintiff boarded, and the prayer is for damages occasioned “by reason of the failure of the said defendant to perform its said contract by safely transporting, plaintiff from said town of Lost Springs to said Lincolnville on its said passenger-train.”
The ticket read as follows:
“Chicago, Rock Island & Pacific Ry.
Lost Springs C. R. I. & P. to Lincolnville.
Jno. Sebastian,
Gen’l Tkt. & Pass. Agt.”
On the trial the plaintiff attempted to introduce evidence of a conversation which he claimed he had with the defendant’s ticket agent at Lost Springs, and which, he asserted, authorized him to take the train from which he was ejected. An objection was promptly made that such evidence was not admissible under the pleadings. The court directed that the matter should be passed, but upon a renewal of the offer a little later in the progress of the trial the evidence was admitted, over the specific objection that it was not admissible under the pleadings. At the close of the plaintiff’s case the court sustained a demurrer to his evidence, and that ruling is the sole ground of error presented here.
It was plaintiff’s duty to inform himself whether the train that he took stopped at Lincolnville.
“A railroad company may adopt a regulation that one of its through, or fast trains, running regularly on its road, shall stop only at certain designated stations or places.
“It is the duty of a person about to take passage on a railroad-train to inform himself when, where and how he can go, or stop, according to the regulations of the railroad company.” (A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, 17 Pac. 54, 5 Am. St. Rep. 780.)
If any facts existed that required the defendant to carry the plaintiff on a train not scheduled to stop at the point to which he desired to go he should have pleaded them. This, however, he failed to do. While he charged the specific duty to carry him to Lincoln-ville on a particular train, he pleaded, as the origin of that duty, a definite, printed contract; but the legal effect that he assigned to his ticket did not follow from its terms, or from its issuance and acceptance. Those facts merely established an undertaking to carry him on a train that, according to the company’s time-card, stopped at Lincolnville. Having failed to prove that the train from which he was ejected was one that did stop at Lincolnville, or should have stopped there, no breach of duty was disclosed.
Evidently the plaintiff appreciated his predicament when he offered the testimony relating to his conversation with the ticket agent. This evidence, however, was wholly without the issues. The objection to it on that ground should have been sustained, and, nothing appearing in the record to the contrary, it must be held that the court disregarded it when considering the demurrer to the evidence.
In the case of Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110, the syllabus reads:
“A ruling sustaining a demurrer to the evidence will not be reversed notwithstanding sufficient evidence was actually admitted by the trial court to make a prima facie casé for plaintiff, where a part of the evidence essential for that purpose was incompetent and admitted over proper objection, although it was not formally stricken out and no notice was given plaintiff that it was to be disregarded.”
With this evidence eliminated no cause of action against the defendant was proved. There was nothing whatever in the conduct of the defendant showing wantonness, malice, or a wilful purpose to injure, and the demurrer to the evidence was rightfully sustained.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
There are seven assignments of error, of which only four need be considered, as those remaining depend thereon. It is first claimed that the court erred by giving relief for the reason that the statute of limitations had run. It is true the court found that the defendant below had been in the open, notorious and exclusive possession of the land in dispute for more than fifteen years, but it is also true that within that period he, with his wife, had executed and delivered to the holder of the legal title a quitclaim deed to the land. Unexplained, as it is, this would probably defeat his claim to title by possession.
It is next claimed that the court erred in admitting testimony to impeach the record in the partition suit. It is true parol evidence was admitted of an understanding between the brothers, both before and after the partition suit was determined, that the plaintiff below was to have the land in dispute, and probably in consideration of his brother’s acquiring the interest of plaintiff through the partition suit. The court, however, found only that such an agreement was made after the determination of the suit. Harman in his petition alleges that his brother, John A., did not in fact pay him for his interest in the land conveyed by the sheriff to John A. in the partition suit. The journal entry recording the confirmation of the sale to John A. recites that it was made to appear to the court that John A. had paid the sum due Harman for his interest in the land. That court records for some purposes import absolute verity cannot be questioned; but if Harman gave John A. a receipt for money that he did not in fact receive, in consideration of a promise of John A. to convey certain other lands to him, we see no reason why Harman should not prove the fact by other evidence than his own testimony, especially when the only effect of such evidence is to prove a consideration for the deed to the other land which John A. and his wife did afterward make to Harman.
The claim that the court erred in its findings of fact cannot be sustained. Our attention is not called to any particular finding of fact which it is claimed is not supported by evidence, and we have found none.
The plaintiffs in error contend that the court erred in its conclusions of law. Many of the dealings of these brothers — who appear to have had unbounded confidence in each other — with reference to their respective interests in this quarter-section of land formerly owned by their father, unexplained as they are by the death of one and the statutory incompetence of the other to testify, seem inconsistent with any theory which may be assumed of their respective rights or evidence dense ignorance on their part of all legal forms in their business. Harman and his wife, in 1889, made a quitclaim deed of about forty acres of the land to John A., of which tract Harman never had the legal title, but the title to which was, and for years had been, in John A. Still Harman had been in possession of this tract for several years prior, and has so continued ever since, and has continuously claimed to own it, and John A., from 1885 to the day of his death, as continuously admitted the possession and ownership of Harman.
Very shortly before his death John A. and his wife made to Harman a warranty deed for this tract and placed it in escrow with Guild, to be delivered to Harman when Harman and wife should deliver a deed to another tract of the land, to which Harman had no title and John A. had had full legal title and undisputed possession since the determination of the partition suit in 1885.
The decision of the court gives effect to the evident intention of the brothers as well as of the widow, does justice between the parties, and is sustainable on legal grounds. The deed from John A. Althouse and wife, Lizzie, to Harman, as the court was justified by the evidence in finding, was placed in escrow with plaintiff in error Guild. It was not void for uncertainty, on the theory that “that is certain which can be made certain,” and was not revoked by the death of the grantor. Upon performance of the conditions upon which it was deposited it became of full force and effect as a conveyance, and Harman Althouse became entitled to the possession of it. (Davis v. Clark, 58 Kan. 100, 48 Pac. 563; 11 A. & E. Encycl. of L. 344.)
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
H. C. Lang brought a suit against N. H. Adams to recover $248.82 for labor and material expended on real property in Topeka, and to enforce a mechanic’s lien claimed by Lang upon that property. Prior to April 15, 1902, Mrs. Adams owned and occupied the property in question as a homestead, and from time to time made improvements upon it. On the date named she conveyed the property to W. W. Mills, a son-in-law, for $9000, but the conveyance was not made a matter of record. For some time before the purchase he had occupied the property as a tenant of Mrs. Adams, who lived in the Mills family but had owned and controlled the property and collected rent for it. After the sale of the property to Mills he held possession and exercised acts of ownership over it. On August 2, 1902, Mills entered into a contract with F. E. Van Sant to make extensive improvements on the house, and Van Sant in turn employed Lang to do some of the work embraced in the contract. In the written contract with Mills the latter was designated as the owner of the property. Van Sant failed to pay for the work under the subcontract with Lang, and Lang filed a statement claiming a mechanic’s lien against the property, naming Mrs. Adams as owner, and subsequently the present proceeding was begun. The finding and judgment were in favor of Mrs. Adams, doubtléss upon the ground that she was not the owner of the property improved and neither made the contract nor authorized any one to make it for her.
The testimony clearly shows a bona fide transfer of the property from her to Mills months before the contract for improvements was made. No lien was claimed as against him, and he was not made a party in the proceedings to foreclose the lien claimed against his property. The owner of property against which a lien is sought to be foreclosed is an essential party to an effective foreclosure. (Stough v. Lumber Co., 70 Kan. 713, 79 Pac. 737.) Apart from this consideration, it does not appear that a valid lien was established. Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. Under the law the foundation of the lien is the contract with the owner for labor or material. There is nothing to show any claim of ownership by Mrs. Adams after she sold the land, nor any proof that Mills was acting as her agent in the transaction. Although the deed to Mills was not of record there appears to have been no misrepresentations as to ownership, and there was nothing in the making of the contract or in the direction of the work that was misleading. Probably the plaintiff was misled by the fact that the deed to Mills was not recorded, but as his right depended upon the existence of a contract with the owner it devolved upon him to ascertain who was in fact the owner of the property. He could not rest on the record title and ignore all other sources of information.
Plaintiff refers to the section providing that unrecorded instruments shall be deemed invalid except as between parties (Gen. Stat. 1901, §1223), and also to the decision in the case of Smith v. Worster, 59 Kan. 640, 54 Pac. 676, 68 Am. St. Rep. 385; but these authorities are not controlling here. The question involved is not the validity of the deed from the defendant to Mills, but whether plaintiff took the prescribed steps which entitle him to a statutory lien. As the statute makes the contract with the owner the basis of a lien no one but the owner or some one representing him can create a lien upon his property. In the statement for the lien by the contractor he must name the owner with whom the contract was made. The subcontractor derives his right to a lien through the contract made with the owner, and in his claim for a lien he is required to name the owner, as well as the contractor. His subcontract is subordinate to the principal contract with the owner, and is presumed to be made with knowledge of its existence, although he is not bound by all of its terms. He is required to know who the owner is, and to name him in his claim for a lien. (Gen. Stat. 1901, §§5117-5119.) The statute does not provide that the owner of the record title can create a lien upon property, nor that a contract with some one who has an apparent title is a sufficient basis for a lien. The provision is that the contract shall be with the owner, and this necessarily means an actual owner of an interest in the property.
Of course, the conduct of an owner might be such as to estop him from saying that a contract had not been made, but in the present case the defendant, as we have seen, was not the owner; she made no contract, and had no connection whatever with the improvements. There were other means of information than the record from which the plaintiff might have obtained information as to the ownership. Mills was in the actual possession of the property, which should have admonished the plaintiff to look beyond the office of the register of deeds. In Stough v. Lumber Co., supra, it was said:
“If, in addition to an unrecorded deed conveying the legal estate in land, there is in the grantee actual, visible, exclusive and notorious possession, it is sufficient to constitute notice of title and to put all persons upon inquiry.”
If plaintiff had made inquiry as to the ownership disclosed in .the contract, which he knew was in existence, he would have found that the defendant was not the owner, and that her grantee had made the contract on his own account. It also appears that plaintiff contracted with Mills to do other work, independently of that included in his subcontract with Van Sant, and that for this extra work he was paid by Mills himself.
We think the plaintiff failed to show a right to the statutory lien, and, therefore, 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.:
This is an original proceeding in habeas corpus. In an inquest in lunacy, held by the probate court of Shawnee county, Rebecca G. Hughes was adjudged insane and Robert Stone appointed her guardian. The petitioner, Rebecca E. Schley, institutes this proceeding to have the judgment of the probate court set aside.
The petition alleges that upon the complaint of one George T. Hughes the probate court appointed a commission of two physicians to make an examination and report of the mental condition of Rebecca G. Hughes. The physicians returned to the court their certificate under oath that Rebecca G. Hughes was found to be not insane, and not a proper person for care and treat ment in any of the state hospitals for the insane. The court approved the certificate and report, and adjudged that Rebecca G. Hughes was not insane and entered such judgment of record on the 15th day of December, 1902. On the 17th day of December, 19Ó2, George T. Hughes made a written application to the court asking that the proceedings and judgment theretofore had and entered in the previous inquest be set .aside and a rehearing allowed. The application was granted and a rehearing ordered. The judgment entered upon the record of the probate court adjudging Rebecca G. Hughes not insane was not set aside of record. Upon such rehearing a commission of two physicians was appointed by the court to make the examination. This commission returned a certificate, finding that Rebecca G. Hughes was of unsound mind and incapable of attending to her business affairs.
The first contention of counsel for the petitioner is that the judgment entered in the original proceeding was not set aside of record and, therefore, that the subsequent proceeding is void. To this contention we do not agree. The probate court, by granting the rehearing, and holding the subsequent inquest, and rendering and entering a judgment of insanity on the certificate of the commission, necessarily treated the former judgment as set aside, and we shall so treat it.
The principal contention of the petitioner is that chapter 353, Laws of 1901 (Gen. Stat. 1901, §6521 et seq.), under which the inquest in lunacy was held, is unconstitutional. The claim is that the act contains two subjects, one of which is not expressed in the title. The title to the act is: “An act relating to charities and charitable and reformatory institutions, and providing penalties for violations of the provisions of this act, and repealing all acts and parts of acts in conflict herewith.” The act, after making provisions for a board of trustees under whose control the charitable and reformatory institutions of the state shall be con ducted, and giving such board the control of all insane persons in the state, whether in or out of the asylums, proceeds to prescribe a procedure for holding inquests in lunacy in the probate courts. It is contended that the two subjects are: (1) The maintenance of charitable and reformatory hospitals; (2) the establishment of a code of judicial procedure for inquests in lunacy; and, therefore, that the act, so far at least as the procedure is concerned, is within the inhibition of section 16 of article 2 of the constitution, that “no bill shall contain more than one subject, which shall be clearly expressed in its title.”
The object of the adoption of this constitutional limitation on the power of the legislature was to abolish a growing practice in this department of government of combining in one bill provisions relating to several different subjects, none of which could be enacted separately, but, thus combined, sufficient strength could be obtained to pass them. As tersely expressed in the case of The State of Missouri v. Miller, 45 Mo. 495, “it was intended to kill ‘log-rolling.’ ” Another equally bad practice was to place provisions relating to several incongruous subjects in one bill under one title, the first section referring to the subject expressed in the title, and thus procure the enactment of all of them without the deception’s being detected. In determining whether a particular act is subject to the objection urged courts are controlled by the following rules, which obtain in construing other constitutional provisions: (1) The constitution should be liberally construed to give to the lawmaking power all freedom not positively prohibited by the constitution; (2) the act under consideration should be given a liberal construction, and all doubts will be resolved in favor of its constitutionality, for the purpose of carrying into effect the will of the legislature. These rules are elementary.
In the case of Blaker v. Hood, 53 Kan. 499, 511, 36 Pac. 1115, 1117, 24 L. R. A. 854, it was said:
“As has been held, this constitutional provision is not to be construed in any narrow or technical sense, but liberally on one side, so as to guard against the abuse intended to be prevented by it, and liberally on the other side, so as not to embarrass or restrict needed legislation.”
In the case of Montclair v. Ramsdell, 107 U. S. 147, 155, 2 Sup. Ct. 391, 397, 27 L. Ed. 431, this rule of construction was stated in this way:
“The objections should be grave, and the conflict between the statute and the constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or if but one object, that it was not sufficiently expressed by the title.”
In the case of Johnson v. Higgins, 60 Ky. 566, 569, it was said:
“The rule is, that the section should receive a reasonable and not a technical construction; and, that no provision of a statute relating directly or indirectly to the subject expressed in the title, having a natural connection therewith, and not foreign to the same, should be deemed within the constitutional inhibition.” (See, also, Ryerson v. Utley, 16 Mich. 269.)
The position of this court has been indicated in many decisions. It was held in Woodruff v. Baldwin, 23 Kan. 491, that the title “An act to establish a code of criminal procedure” was sufficient to include in the act the provision treating solely of the management of the estates of convicts. In the case of Comm’rs of Cherokee Co. v. The State, ex rel., 36 Kan. 337, 13 Pac. 558, it was held that an act entitled “An act to authorize the board of county commissioners of Cherokee county to build a court-house, and to build and to pay for bridges in said county, and to provide a fund therefor,” contained but one subject — to provide a fund for public improvements. In the case of The State v. Bush, 45 Kan. 138, 25 Pac. 614, it was held that an act entitled “An act to provide for and to regulate the registration of voters in cities of the first- and second class, and to repeal all prior acts in relation thereto,” was broad enough to contain a provision for the punishment of all persons violating any of the provisions of the act.
In the case of In re Sanders, Petitioner, 53 Kan. 191, 198, 36 Pac. 348, 349, 23 L. R. A. 603, the question of the constitutionality of section 4 of chapter 129, Laws of 1881, was before the court. The title was “An act to provide for the organization and management of the state reform school.” Section 4 authorized the probate courts to commit to the reform school boys under the age of sixteen years, under the conditions therein set forth. The court said:
“Construing all of the words of the title of chapter 129, we think there is sufficient therein to authorize something more than provisions to merely systematize and regulate an existing school, or an existing place of discipline, instruction, or training. Evidently, the legislature intended by the title one whose scope was broad enough to embrace the bringing together, the collecting, and the furnishing of pupils or inmates to or for a reform school. . . .
“The general rule is that, in determining whether an act of the legislature is constitutional, it is the duty of the courts to give such construction to it, if possible, as will uphold all of its provisions. Then, again, it is not necessary that the title to an act should be a synopsis or abstract of the entire act in all its details; it is sufficient if the title indicate clearly, though in general terms, the scope of the act.”
If the matter under consideration be not incongruous with the subject in the title, but germane thereto, and have a natural connection therewith, it is not subject to the constitutional objection. Case law can give us but little assistance in determining whether any particular act comes within the inhibiting provi sion of the constitution; it may, however, assist in the application of general principles.
The subject of this act is the direction and control of charitable and reformatory institutions, and, as expressed in the first section, “this act shall be known as ‘The Code of Charities and Corrections of the State of Kansas.’ ” Its object is to maintain, manage and control the state hospitals, the state schools for feeble-minded youth, the deaf, and the blind, the soldiers’ orphans’ home, the industrial schools for girls and for boys, and all other charitable and reformatory institutions of the state, excepting the industrial state reformatory, at Hutchinson.
By section 27 “the administration and enforcement of the laws relating to the insane of this state and their treatment in or out of hospitals or asylums for the insane is entrusted to the state board of charities and corrections.” The object of the act was to provide for the care of the unfortunate and, if possible, reform the viciously inclined youth of Kansas. The proceedings to bring those relying upon public charity, as well as those contemplated by the reformatory provisions of the act, into the public hospitals, and under the direct supervision of the trustees thereof, are germane to the subject of the act, and have a natural connection therewith. Such procedure is necessary to the accomplishment of the object of the act.
The application is denied.
All the Justices concurring. | [
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Per Curiam:
Although one part of the note in controversy stated that it was given for $1500, other parts of the note, and the coupons attached, as well as the mortgage securing the note, combined to show that it was given for $1000. This was the amount claimed in the petition, and the objection to any testimony under the petition because the amount named in the note was indefinite was not good. (Howard v. Carter, ante, p. 85.)
The affidavit to obtain a change of venue contained a naked declaration and conclusion that the judge was prejudiced. It was insufficient.
The court ruled correctly in refusing to suppress a deposition. Portions of it, at least, were admissible.
The acknowledgment of the mortgage in suit was somewhat defective, but it was good in any event between the parties and those who had notice of its existence. The proceedings under which plaintiffs in error claimed title were sufficient to put them upon inquiry and charge them with notice of the mortgage.
There was sufficient proof of the delivery of the mortgage, and also to support the findings of the court of the good faith of the transfers and of the entire transaction.
The judgment is affirmed. | [
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Per Curiam:
From the briefs and statement of counsel it appears that this action was commenced by Homer Kennett against the Pennsylvania Railroad Company before a justice of the peace. Plaintiff had judgment, and the case was taken to the district court on a bill of exceptions, and judgment again rendered for the plaintiff. The defendant prosecutes error on a transcript of the record.
A motion is filed by the defendant in error to dismiss the proceeding for the reason that the transcript is unintelligible, incomplete, and loaded with extraneous matter not connected with the case. This motion must be sustained. Notwithstanding counsel for plaintiff in error have attempted to make this record intelligible by a supplemental brief and index, it is absolutely non-understandable.
The cause is dismissed. | [
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The opinion of the court was delivered by
Burch, J.:
The petition filed in the district court is in the ordinary form for ejectment. The answer pleaded a tax deed. The reply, which was unverified, assailed the tax deed for excessive levies.
On the trial the facts were agreed to, and they show that for the years covered by the tax proceedings culminating in the tax deed the county clerk placed on the tax-roll, to be collected for state purposes, amounts in excess of those apportioned to the county by the state board of equalization, as follow: For 1898, $592; for 1899, $482.33; for 1900, $256; for 1901, $206.
The agreed facts further show that on July 24, 1902, the county still remained indebted to the state for delinquent taxes, for which levies should have been made, as follow: For 1898, $616.03; for 1899, $1017.64; for 1901, $797.83.
Under the interpretation given to chapter 199 of the Laws of 1885 (Gen. Stat. 1901, §7712) by this court in the case of Harper County v. Cole, 62 Kan. 121, 61 Pac. 403, it was the. duty of the county clerk to place on the tax-rolls each year an amount in addition to the regular levy for state purposes sufficient to raise the sum in which the county was already delinquent to the state. The delinquencies noted in the agreed statement of facts were continuing obligations of the county to the state, and while they existed no levy for state purposes could be excessive that was not large enough to include them. Therefore, the levies made were not excessive.
On the trial the plaintiff sought to introduce evidence showing that illegally computed interest had entered into the consideration of the tax deed. The court rejected the evidence on the ground that it was irrelevant under the pleadings. While the reply abounds in legal conclusions to the effect that the defendant had no “valid and legal tax deed,” that such tax deed “was issued in violation of law,” and that “the law was not complied with,” the only fact asserted against the validity of the deed was that of an excessive levy of taxes for state purposes. The scope of the pleading was limited to the specific allegations of fact that it contained, and the evidence offered was properly excluded.
The agreed statement of facts contains a stipulation to the effect that the title to the real estate described is in the plaintiff, except for the tax deed of the defendant, and an argument is made to show that under the rules relating to the burden of proof in ejectment cases judgment should have gone for the plaintiff.
The execution and delivery of the tax deed to the defendant were admitted. The only defect' urged against it was that of an excessive levy. While the answer is very meager in its assertions of fact, no motion was made to require it to be amplified, and if some vitiating fact had not been pleaded against the deed the defendant would have been entitled to judgment. The supposed imperfection was found not to exist. Hence, on the pleadings and agreed facts it appears that the defendant holds a flawless tax deed, and is entitled to remain in possession of the land.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Upon a complaint that W. H. Terry and Ida Langvardt, both married, but not to each other, had lasciviously cohabited with each other in Allen county, both were arrested in Labette county and brought before the justice of the peace in Allen county who issued the warrant. The action taken by the justice of the peace is indicated by the following entry:
“May 17, 1904, by agreement of all parties the pris oners were brought into court and complaint distinctly-read to them, and for pleas say they are guilty.”
The court at once pronounced judgment as to IdaLangvardt and reserved his judgment as to Terry. The entry was:
“And as to W. H. Terry, the court will reserve judgment until nine o’clock A. M., May 18, 1904.”
Following this is the entry:
“May 18, 1904 — 9 o’clock A. M.
“As W. H. Terry pleaded guilty to the charge in the complaint, the court, after due consideration, therefore orders and adjudges ..that the defendant W. H. Terry shall be confined in the jail of Allen county, Kansas, for a period of six months, together with the sum of $500 fine, to be paid to the state of Kansas, and the costs of the suit, taxed at $2.25, and in default thereof committed to the jail of Allen county, Kansas, until such fine and costs are paid.”
While imprisoned under this sentence he appears to have broken jail; at least,'he was arrested upon the charge of jail-breaking. Upon that charge he was given a preliminary examination and held for trial in the district court, bail being fixed at $300. The bail was not given, but he alleges that he offered to make a cash deposit in lieu of the bail required, which was not accepted. He then brought this proceeding, alleging that his restraint was illegal.
According to his own representations he is in custody upon a complaint charging jail-breaking. His trial upon the charge has not yet been had, but there is nothing to show that a speedy trial may not be had, in which the rightfulness of his arrest and the truth of the charge may be fully inquired into and determined. No attack is made upon the formality of the papers or the regularity of the proceedings as to jail-breaking. Habeas corpus may not be used to inquire into the legality of a warrant or commitment issued from a court of competent jurisdiction, upon an indictment or information, before final trial and judgment. (Ex parte Charles Phillips, 7 Kan. 48; In re Gray, 64 id. 850, 68 Pac. 658.) There is no claim that the court in which the complaint for jail-breaking was filed, and which issued the commitment, was lacking in jurisdiction to hear and determine charges of that character.
The contention is that the conviction of adultery upon his plea of guilty was void, and, hence, that the commitment issued upon that judgment was illegal. He challenges the sufficiency of the proceedings and judgment as entered by the justice of the peace, and contends that the docket entry does not show that he was present and pleaded guilty to the charge. His name was not repeated in the particular recital as to arraignment and plea of guilty, but the entry is that the “prisoners” pleaded guilty. The prisoners referred to had been particularly named in the earlier part of the docket entry, and their identity was free from doubt.
It is next said that the recital that “they” pleaded guilty implies that there was no separate plea by the petitioner. The parties were jointly charged, and the recital in the judgment entered is not inconsistent with the theory that each of them separately responded and confessed guilt. This, however, is not a matter for consideration on habeas corpus, and would hardly constitute a substantial question upon an appeal. The record made fairly shows that he was brought into court with his codefendant, duly arraigned, that he formally entered a plea of guilty, and that the court took twenty-four hours to determine the measure of punishment to be administered.
There is a claim that as the sentence did not immediately follow the plea the court lost jurisdiction of the case and the power to render judgment. The governing statute provides that when a defendant is found guilty or enters a plea of guilty the court shall render judgment thereon. (Gen. Stat. 1901, §5822.) There is no command to render judgment forthwith, or immediately after the plea of guilty, and the court may therefore pronounce the judgment within a reasonable time in the due and orderly course of business. There was no indefinite suspension of sentence, but only a postponement of it until the following day. It is not uncommon, nor improper, for a court to defer sentence, either for the benefit of the defendant, who may be preparing to take an appeal, or in order that the court may learn the circumstances of palliation or aggravation surrounding the case and thus be better prepared to measure the punishment to be inflicted.
The objection that the record does not affirmatively show that the petitioner was personally present when judgment was rendered is not good on habeas corpus.
Testimony was offered in this proceeding tending to show that the petitioner was not guilty of the offense of which he was convicted; that it was in fact committed in a county other than the one named in the complaint. His plea of guilty was an acknowledgment of the charge made against him, and, even if this were an appeal, the inquiry would be limited to whether the facts charged constituted an offense and the sentence imposed was within the limits fixed by the statute. Certainly the judgment cannot be set aside and the case retried on habeas corpus.
No appeal was taken from the conviction. The judgment rendered on his conviction stands unreversed. The court rendering it had jurisdiction of the petitioner, and of the offense charged. On the face of the record the judgment appears to be valid. It cannot be opened up or the record of the proceedings in the court impeached by parol evidence in this collateral way.
“Where a party is held under process issued upon any final judgment of a court of competent jurisdiction, the inquiry in habeas corpus is limited to the question, Was the judgment void, or has it been stayed, superseded, or otherwise spent its force? No mere errors or irregularities in the proceedings will justify a discharge.” (In re Rolfs, Petitioner, 30 Kan. 758, 1 Pac. 532. See, also, In re Watson, Petitioner, 30 Kan. 753, 1 Pac. 775; In re Macke, Petitioner, 31 id. 54, 1 Pac. 785; In re Brown, 62 id. 648, 64 Pac. 76.)
The petitioner will be remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Tillman Birnbaum recovered a judgment against the city of Iola for personal injuries received by him at the hands of a mob, and the city prosecutes error. Several of the assignments of error relate to rulings made at the trial, and cannot be considered upon their merits for the reason that the only motion for a new trial that was filed made no reference to them, either specifically or in general terms. Complaint is made of the language used by the plaintiff’s attorney in addressing the jury, but it cannot be entertained, for no objection was made or order asked with regard to it at the time. (Kansas City v. McDonald, 60 Kan. 481, 57 Pac. 123, 45 L. R. A. 429; C. B. & Q. R. Co. v. Krayenbull, 98 N. W. [Neb.] 44; Jenkins v. Chism, 76 S. W. [Ky.] 405; 2 Encyc. Pl. & Pr. 753.)
The petition alleged that members of the mob used threatening and abusive language to plaintiff, some of which was set out in full. The defendant moved to strike out all such allegations, and complaint is made of the denial of the motion. Granting that the allegations were irrelevant, no reason is advanced for believing that they resulted in any prejudice, and none is apparent. Therefore, the failure to strike them out affords no ground for reversing the judgment. (21 Encyc. Pl. & Pr. 239, 240; Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444.)
In the answer it was alleged that the defendant had no notice of the existence of the mob, and no opportunity to control it. In response to this the plaintiff pleaded in his reply that the attack upon him was so sudden and unexpected that he was unable to communicate with the city officers before- his injuries occurred, and that if he had done so it would have availed him nothing, because the officers were in sympathy with the mob. A motion was made to strike this matter from the reply, and the denial of the motion is assigned as error. The allegations objected to were plainly very far outside of any proper issues in the case, but the defendant has no standing to complain of their presence, for they were inserted merely in avoidance of a foreign issue which the city had tendered and to which they were responsive.
Three general propositions of law are urged by the plaintiff under various assignments of error, any one of which, if sound, would require the reversal of the judgment. They are: (1) That a city is not liable for any injury done by a mob to the person not involving the loss of life or limb; (2) that the statute should not be construed to impose a liability upon a municipal corporation for any damages done by a mob excepting such as it was able to prevent; (3) that if so construed the statute is void as depriving taxpayers of their property without due process of law. The statute in question reads:
“All incorporated cities and towns shall be liable for all damages that may accrue in consequence of the action of mobs within their corporate limits, whether such damages shall be loss of property or injury to life or limb.” (Gen. Stat. 1901, §2501.)
It is argued that the purpose of the last clause is to exempt the city from liability for injuries to the person less serious than mayhem. We think its purpose is rather to guard against a possible construction that should confine its operation solely either to injuries to property or to injuries to the person. The damages designated are not only those resulting from the destruction of life or limb, but those resulting from any injury to either — that is, from any bodily hurt.
“The right to life may be invaded, without its destruction. . . . The right to life includes the right of the individual to his body in its completeness and without dismemberment.” (Bertholf v. O’Reilly, 74 N. Y. 509, 515, 30 Am. Rep. 323.)
“The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.” (Field, J., in Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.)
The right to recover damages from municipalities on account of the acts of mobs is purely statutory, and whether it is affected by the want of power or opportunity on the part of the public officers to guard against the injuries done depends upon the terms of the statute by which it is conferred. (20 A. & E. Encycl. of L. 1206.) The Kansas statute is so explicit as to leave little room for construction, but this court has already given it an interpretation by approving an instruction that “it makes no difference whether the loss of property or the injury to life or limb, by such actions of mobs, might have been prevented or not.” (City of Atchison v. Twine, 9 Kan. 350.) Even when so construed the statute is a valid enactment, and does not effect a deprivation of property without due process of law. (City of Chicago v. Cement Co., 178 Ill. 372, 53 N. E. 68, 45 L. R. A. 848, 69 Am. St. Rep. 321.)
The judgment is affirmed.
All the Justices concurring. | [
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McAnany, J.:
This appeal presents a couple of deceptively simple questions. First, does the statute of limitations start to run on a medical malpractice claim at the time of injury when the defendant’s conduct causes the patient to suffer a coma from which he never recovers? Second, when the patient’s heirs bring a wrongful death action following the patient’s death, is that claim barred by the statute of limitations if it is not brought within 2 years after the negligent conduct that caused the patient’s coma and eventual death? After rambling through a briar patch of somewhat confusing authorities on these issues (a confusion to which we hope we are not adding), we arrive at our answer to each of these questions which is: No.
Macie Martin (Martin) sued Sandip Naik, M.D. (Naik), and Specialty Hospital of Mid-America (Hospital) for the wrongful death of her husband, Curley Martin (Curley). She also brought a survival action as the personal representative of Curley’s estate for the injuries and damages Curley sustained prior to his death. The district court ruled these claims were time-barred and granted summary judgment to the defendants. Martin appeals. We reverse and remand.
On appeal we consider de novo Naik’s and the Hospital’s summary judgment motions. See Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009). In doing so, we apply the same standards applicable to the proceedings before the district court. Further, to the extent this appeal requires statutory interpretation, we construe the relevant statutes de novo. See Double M. Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
While Naik and the Hospital deny any negligence on their part, the following facts were uncontroverted solely for purposes of resolving the defendants’ summary judgment motions.
Facts
On March 31, 2004, Curley was admitted to the Hospital under Naik’s care. During the evening of April 7, 2004, Martin observed a nurse having difficulty with equipment that provided nutrition and medications to Curley and heard comments from the nurse to this effect. Later that night, Curley’s blood glucose dropped to a critically low level, and a nurse employed by the Hospital negligently administered insulin.
By the next morning, April 8, 2004, Curley’s condition had deteriorated. He was unresponsive and apparently in a diabetic coma. Curley was transferred to Shawnee Mission Medical Center (SMMC) that morning, but the transfer was delayed due to Naik’s negligence.
Curley’s condition did not improve. He suffered irreversible brain damage. While treating Curley at SMMC, Dr. Samuel Lehman told Martin and her family that when the Hospital’s staff allowed Curley to go into a diabetic coma, they had essentially killed him. Curley later died on October 25, 2004.
On October 25,2006,2 years to the day following Curley’s death, Martin filed suit on behalf of herself and Curley’s other heirs for his wrongful death and as the personal representative of Curley’s estate for the survival action. She alleged that the negligence of Naik and the Hospital on April 7 and 8, 2004, caused the injuries that led to Curley’s death.
Martin was aware of the defendants’ claimed negligent conduct at the time it occurred. On April 8, 2004, Martin was aware of the injurious consequences to Curley when his condition worsened and he slipped into a coma from which he never recovered.
Statutes
As a preliminary matter, we must be mindful of the distinctions between wrongful death actions authorized by K.S.A. 60-1901 et seq. and survival actions authorized by K.S.A. 60-1801 et seq.
A wrongful death action may be brought by the deceased’s heir at law “who has sustained a loss by reason of the death.” K.S.A. 60-1902. The action is brought on behalf of all the heirs who sustained a loss. Compensable damages to the heirs in a wrongful death action include pecuniary as well as nonpecuniary damages, such as loss of support, loss of companionship, and mental anguish, sustained by the heirs on account of the decedent’s death. K.S.A. 60-1903 and 60-1904.
A survival action, on the other hand, is brought by the personal representative of the decedent’s estate in order to compensate the estate for the damages sustained by the decedent prior to death as a result of the defendant’s improper conduct. See Mason v. Gerin Corp., 231 Kan. 718, 721, 647 P.2d 1340 (1982).
The outcome of this case is controlled by application of K.S.A. 60-513 to the facts before us. This statute requires:
“(a) The following actions shall be brought within two years:
(5) An action for wrongful death.
(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.
“(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.”
In considering this statute we are mindful of the nature and purpose of statutes of limitation.
“ ‘Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. [Citation omitted.] They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate/ ” Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 132, 631 P.2d 222 (1981) (citing Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 89 L. Ed. 1628, 65 S. Ct. 1137 [1945]).
We also must consider the applicability of K.S.A. 60-515, which provides in part:
“[I]f any person entitled to bring an action ..., at any time during the period the statute of limitations is running, is ... an incapacitated person . . . , such person shall be entitled to bring such action within one year after the person’s disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.”
In its extensive Order Granting Summary Judgment, the district court analyzed various cases which we will discuss further. The court concluded that Martin’s “causes of action here for medical negligence in the survival action and the wrongful death claim accrued April 8, 2004.” Further, the court found no tolling of the statute of limitations on account of Curley’s disability. Thus, the court found that both these causes of action were barred by the 2-year limitation found in K.S.A. 60-513.
Survival Action
Curley’s claim of medical negligence survived his death pursuant to K.S.A. 60-1801. K.S.A. 60-513 required Martin to commence an action on this claim within 2 years following the later of (1) the defendants’ medically negligent conduct, or (2) when Curley’s injury became reasonably ascertainable “to the injured party” if it was not reasonably ascertainable at the time of the defendants’ negligent conduct; but in no event later than 4 years after the defendants’ negligent conduct. Thus, K.S.A. 60-513 is both a statute of limitations (2 years) and a statute of repose (4 years).
The survival action brought by Martin as the personal representative of Curley’s estate is a tort action for negligence. Such a cause of action arises upon the confluence of its time-honored elements: the existence of a duty, the negligent breach of that duty, causation, and damages. Generally speaking, for the purpose of determining when the period of a statute of limitations begins to run, we look to the “time when the plaintiff first had the right to file and prosecute the action to a successful conclusion.” Mason, 231 Kan. at 722 (citing Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 470 P.2d 797 [1970]). Though all the elements of this cause of action may be present so as to bring it into being and enable an injured party to prosecute it to a successful conclusion, if that party’s existing injuries are not reasonably apparent, under K.S.A. 60-513(c) the cause of action is not “deemed to have accrued” until the damages are discoverable for the purpose of commencing the hmitation period.
The phrase “reasonably ascertainable” is a bone of contention between the parties. The exact wording of the relevant part of K.S.A. 60-513(c) is as follows:
“[U]nless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of hmitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party
The cases the parties cite to support their respective positions are not particularly helpful because, for the most part, they fail to draw the necessary distinction between the plaintiff in a wrongful death action and the plaintiff in a survival action. Further, the cases do not answer the question: Reasonably ascertainable by whom?
Defendants contend that the fact of injury was apparent to Martin on April 8 when Curley’s condition deteriorated and he slipped into a coma. However, what was apparent to Martin is immaterial because she is not the injured parly in this survival action, Curley is, and Curley’s injury was not apparent to him because he was in a coma from which he never recovered. Upon Curley’s death, his medical negligence claim became an asset of his estate. At that time the fact of injury was reasonably apparent to the estate, the successor-injured party, thereby causing the survival action for medical malpractice to accrue and the running of the period of hmitation to commence pursuant to K.S.A. 60-513(c). Thus, commencing the survival action exactly 2 years after Curley’s death renders the action timely under K.S.A. 60-513(c).
The Hospital points out, however, that K.S.A. 60-513(c) does not use the phrase “ascertainable to the injured party” in the earlier portion of K.S.A. 60-513(c), but rather simply uses the word “ascertainable.” From this the Hospital argues that it is not necessary for Curley to be able to ascertain that he has a cause of action for medical negligence to start the running of the limitation period. Thus, it argues, the running of the statute of hmitaüons on this damage claim, which is personal to Curley, commenced on April 8, 2004, even though Curley had no capacity to apprehend that he had a claim and no ability to do anything about it.
We reject this notion. Prior to Curley s death any claim for negligent care belonged solely to him. He was not a minor whose parent as next friend could bring an action for medical negligence on his behalf. We find nothing in the record to suggest that a conservator or other personal representative with the power to sue on his behalf had been appointed for Curley after this incident and before his death. There was no one charged with the legal responsibility of investigating and pursuing any possible claims on Curley s behalf while he was comatose.
Naik, the Hospital, and the district court relied on Davidson v. Denning, 259 Kan. 659, 914 P.2d 936 (1996). Damdson involved two wrongful death cases, rather than the survival action we are considering here. Nevertheless, the Damdson court considered the phrase “reasonably ascertainable” found in K.S.A. 60-513(b) and (c). The court determined that the phrase “ ‘reasonably ascertainable’ means that a plaintiff has the obligation to reasonably investigate available sources that contain the facts of die death and its wrongful causation.” (Emphasis added.) 259 Kan. at 678-79. Further, “[t]he term ‘reasonably ascertainable’ as applied in 60-513(b) and (c) in a wrongful death action suggests an objective standard based on an examination of the surrounding circumstances.” 259 Kan. at 669.
Because these were wrongful death actions, the plaintiffs in Davidson upon whom the duty to investigate rested were the heirs of the decedents. There is no contention that they suffered under any disability or incapacity. They were simply dilatory in bringing these wrongful death actions when measured by “an objective standard based on an examination of the surrounding circumstances.” 259 Kan. at 669. When considering the surrounding circumstances, what does an objective standard tell us when considering whether the fact of injury is reasonably ascertainable to a prospective plaintiff who is comatose?
The Davidson court examined this discoverability issue in other contexts. “Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), a roof-leak case, provides guidance about when an injury becomes ‘reasonably ascertainable’ within the meaning of K.S.A. 60-513(b).” Davidson, 259 Kan. at 672-73. In Friends, the roof began to leak in 1970 or 1971. Repairs were not successful. An expert determined in April 1975 that the leak was caused by the defendant’s defective roofing materials. Suit was filed in March 1977. The court observed that the “ ‘roof was obviously defective in some respect when leaking occurred. ... At any time Friends could easily have obtained an expert opinion on the precise cause.’ ” Davidson, 259 Kan. at 673. In contrast, Curley was hardly in the position to take any action to determine his condition or its cause.
Curley’s claim for medical malpractice was unique to him. Absent the appointment of a conservator he was the only person who could assert it during his lifetime. He could not assign this claim to another. See Snider v. MidFirst Bank 42 Kan. App. 2d 265, 270, 211 P.3d 179 (2009). When considering the “surrounding circumstances” in the course of applying an objective standard to the concept of “reasonably ascertainable,” we conclude that Curley in his comatose state could not reasonably ascertain the fact of his injury.
The parties and the district court have referred to K.S.A. 60-515, which tolls the running of the statute of hmitations during the period of incapacity but requires the action to be commenced within 1 year after the disability is removed. The application of K.S.A. 60-515 to Curley’s survival action would have the effect of shortening the limitation period rather than tolling it. K.S.A. 60-515 does not apply when it shortens rather than tolls a hmitation period. Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 75 P.3d 1222 (2003).
K.S.A. 60-515, the tolling statute, has wider application than simply incapacitated persons. It also applies to persons whose disabil ities arise because of their minority or imprisonment. In the case of an incapacitated person, however, it applies only to a person who is incapacitated at the time the cause of action accrues or who later becomes incapacitated while the statute of Hmitations is running. As discussed eariier with respect to K.S.A. 60-513(c), because Curley could not reasonably ascertain the fact of his injury, his medical malpractice claim (the survival action) did not accrue so as to start the statute of Hmitations clock running until his death, so the 2-year Hmitation period of K.S.A. 60-513 did not commence to run at any time during the period of Curley’s incapacity. The relevant portion of K.S.A. 60-515, its tolHng provision, stops the clock that is running on an accrued but unfiled cause of action. Here, the clock was not running. It had not yet started. There was nothing for the statute to toH.
Naik and the Hospital were not entitled to summary judgment on this claim.
Wrongful Death Action
The district court found that the wrongful death cause of action asserted by Martin on behalf of Curley’s heirs accrued on April 8, 2004, when he sHpped into a coma, and therefore was time-barred. Martin argues that it did not accrue until the date of Curley’s death, making the action timely.
An action for wrongful death may be brought by “any one of the heirs at law of the deceased who has sustained a loss by reason of the death.” K.S.A. 60-1902. K.S.A. 60-1904 contains a nonexclusive list of the kinds of damages for which a wrongful death plaintiff may recover. Those damages are damages sustained by the heirs, not by the decedent. Unlike the survival action, which belongs to the decedent’s estate and is prosecuted by the estate’s personal representative, the wrongful death action belongs to the heirs and is prosecuted by them in their own right.
The right to bring a wrongful death action is a property right that vests at the time of the wrongful death. An eariier version of our wrongful death statute vested that right in the decedent’s next of kin. See White v. Atchison, T. & S.F. Rly. Co., 125 Kan. 537, 265 P. 73 (1928). Our current statute vests that right in an heir at law. So who is the heir at law who can bring the action? Surely no suit can be brought — hence no claim can accrue — until that can be determined.
In Johnson v. McArthur, 226 Kan. 128, 596 P.2d 148 (1979), the decedent, who had no children, died in an automobile collision that also resulted in his wife’s death 30 minutes later. A wrongful death action was brought by the decedent’s parents. The issue was whether they were heirs at law who were entitled to bring the action for their son’s death or whether the decedent’s briefly surviving spouse was the only person who could have brought the action. Our supreme court noted that some courts distinguish an “heir” — one who succeeds to the property upon the death of another — from an “heir-at-law” — whom some courts characterize as an “heir apparent” who “has a prospect of future inheritance from a then living ancestor.” 226 Kan. at 134. The court rejected the distinction and held that the terms are synonymous, and concluded that the parents were not “heirs at law” under the statute, K.S.A. 59-504, that made the decedent’s now-deceased wife his sole heir. Thus, the parents’ claim was dismissed.
In Johnson, the heir at law entitled to bring the wrongful death action was established at the time of the decedent’s death. Similarly, Curley’s heirs at law must be determined at the time of his death. The person entitled to bring a wrongful death action is not a mere “heir apparent” who may or may not ultimately be determined to be an heir at law. That determination must await the occurrence of the wrongful death. We find no support for the notion that a cause of action may accrue and start the running of the statute of limitations clock when there is no person who can be determined to have the right to bring suit on the claim.
K.S.A. 60-1901, our wrongful death statute, provides:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer
Our next issue is the meaning of the provision in this statute that a wrongful death action may be brought “if the [decedent] might have maintained the action had he or she lived . . . against the wrongdoer.” The answer is found in Mason, 231 Kan. 718, in which the court affirmed its earlier decision in Gaham v. Updegraph, 144 Kan. 45, 58 P.2d 475 (1936), that when the decedent could not have brought an action for his injuries had he lived because of the running of the statute of limitations, the decedent’s heirs are similarly barred from bringing a wrongful death action. While this seems to disregard the inherent difference between the nature of a wrongful death claim and the nature of a personal injury claim that survives the injured party’s death, the right to maintain an action for wrongful death is strictly statutory, and our legislature has so defined it.
Under the facts before us, all the elements for a personal injury claim were present in April 2004. Curley died in October 2004, well within the 2-year limitation period. Up to the time of his death, Curley could have brought an action for his injuries had they been reasonably apparent to him. Thus, Martin’s wrongful death action meets this prerequisite for suit contained in K.S.A. 60-1901 and explained in Mason and Graham.
K.S.A. 60-513(a)(5) requires the heirs to commence theirwrongful death action within 2 years. Our next question is: Within 2 years of what?
The district court determined that the 2-year limitation period began to run on April 8, 2004, relying principally on Crockett v. Medicalodges, Inc., 247 Kan. 433, 799 P.2d 1022 (1990), and therefore Plaintiff s claim, filed October 25, 2006, was time-barred.
In Crockett, which involved a survival action for medical malpractice as well as a wrongful death claim, injury from the defendant’s malpractice was reasonably apparent in August 1983. The decedent died in May 1984, so the prerequisite of the decedent’s ability to sue during her lifetime discussed in Mason and Graham did not bar the claim. Suit was filed in April 1986, within 2 years of death but more than 2 years after the malpractice personal injuiy action arose.
The Crockett court concluded that the latest date the wrongful death action could have accrued was August 23, 1983, the date of the injury. Suit was commenced on April 15, 1986. Therefore, the wrongful death action was barred by the 2-year statute of limitations. 247 Kan. at 441. This is in spite of the fact that on the date of injury there was no heir at law who could prosecute the claim and there were no damages, all because the injured party was still alive. The Crockett court reached this curious result by relying on Brubaker v. Cavanaugh, 542 F. Supp. 944 (D. Kan. 1982). The Crockett court stated that in Brubaker the federal court “found that the limitations contained in 60-513(c) apply to wrongful death claims when the claim the injured party could have maintained during her life was failure to render professional services.” Crockett, 247 Kan. at 441 (citing Brubaker, 542 F. Supp. at 947-48).
Brubaker involved both a survival action and a claim for wrongful death. In April 1960, Shirley Brubakers father died of a cancer for which Shirley also was genetically disposed. From May 1960 to December 1968 Shirley was treated by the defendant, who had also treated her late father. The defendant failed to tell Shirley of her genetic predisposition to contracting the cancer that killed her father. Shirley died in 1981. When this suit was later filed, Shirley s malpractice claim (now morphed into a survival action) had long been time-barred by the 4-year statute of repose. Because her malpractice claim was extinguished before her death, the prerequisite for her heirs’ wrongful death action (Shirley being able to sue for her injuries had she lived) was not met.
Brubaker clearly does not apply to the facts now before us and did not apply in Crockett. Brubaker was decided based upon the fact that the decedent’s claim for her personal injuries had long expired due to the statute of repose.
While Crockett holds that a cause of action for wrongful death accrues at the time of the injury, not the date of death, a more recent Supreme Court case holds to the contrary. In Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (2004), Natalini brought a personal injury action for medical negligence for failure to diagnose his lung cancer. He sued within 2 years following his cancer diagnosis. By the time of trial, Natalini was predicted to have only 8 months to live. Further, the statute of repose for a prospective wrongful death action was about to expire. Therefore, Natalini sought damages at trial not only for his personal injuries but also damages for his family for their bereavement, mental anguish, loss of protection and advice, and the loss of his support and household services which he anticipated they would suffer upon his demise— damages the defendant characterized as part of an anticipatory wrongful death claim.
On appeal, our Supreme Court determined that these additional damages were not recoverable in Natalini’s personal injury action. In doing so, the court noted the strategy Natalini hoped to employ:
“In circumstances like Natalini’s, even if a malpractice plaintiff s premature death is highly likely to be caused by the malpractice, plaintiff s survival for more than 4 years beyond the negligent act means no wrongful death action will ever be possible. K.S.A. 2003 Supp. 60-513(c) and K.S.A. 60-1901 will combine to cut it off before it can accrue, i.e., before the death giving rise to the action has occurred. Although family members of the patient would qualify at the time of death as heirs at law entitled to seek recovery in a wrongful death suit, see K.S.A. 60-1902, they would be prevented from bringing an action because 60-513(c)’s repose language would have barred the injured patient’s own lawsuit before his or her death. [Citations omitted.]” (Emphasis added.) 278 Kan. at 143.
Although the court in Natalini refers to Crockett, it holds contrary to Crockett that an action for wrongful death arises upon the decedent’s death, and not before.
Further, the court in Crockett made no note of the following from Mason, though Mason clearly still is good law:
“This court recognized as early as 1912 in Nesbit v. City of Topeka, 87 Kan. 394, 124 Pac. 166, that a cause of action for personal injuries accrues to the injured party when he is injured, and a cause of action for wrongful death accrues to the heirs at the death of the injured party.
“However, this does not eliminate the qualifying condition in 60-1901 that the wrongful death action may be brought if the decedent might have maintained the action had he or she lived.” (Emphasis added.) Mason, 231 Kan. at 722.
Thus, once the wrongful death condition precedent is met (the decedent’s right to sue had he or she lived), the statute of limitations for the decedent’s personal injury action has no further effect on the wrongful death cause of action, which has its own statute of limitations and which begins to run on the date of death.
Earlier we discussed Davidson, 259 Kan. 659, regarding when the statute of limitations period begins to run on a personal injury claim when the fact of injury is not reasonably ascertainable to the injured party. We now return to Davidson regarding the separate issue of the commencement date for the statute of limitations in a wrongful death action.
The court in Davidson cites the same language from Nesbit v. City of Topeka, 87 Kan. 394, 124 P. 166 (1912), cited by the court in Mason, which we quoted two paragraphs earlier in this opinion: “ ‘[A] cause of action for wrongful death accrues to the heirs at the death of the injured party.’ ” Davidson, 259 Kan. at 670. While the Davidson court held that the heirs were dilatory in bringing their wrongful death actions, the court observed: “The phrase ‘reasonably ascertainable’ means that a plaintiff has the obligation to reasonably investigate available sources that contain the facts of the death and its wrongful causation. Those facts appear to have been available ... as of the date of death, more than 2 years before the actions were filed.” 259 Kan. at 678-79.
The court in Davidson declared the fact of death should be a “ ‘starting point for inquiry.’ ” 259 Kan. at 666. In Davidson, the wrongful death actions were filed more than 2 years after death. The court noted:
“We have not established a ‘bright line’ rule that the wrongful death limitations period may never be extended beyond 2 years from the date of death. Here, there were no circumstances present justifying an extension, such as concealment of the fact of death or of medical records nor a misrepresentation, alteration, inaccuracy, or falsification of any type.” 259 Kan. at 679.
The Davidson court recognized the possibility of extending the commencement date for the limitation period after death, not the possibility of causing the hmitation period to commence before the decedent dies and before the cause of action comes into being. See Dreiling v. Davis, 38 Kan. App. 2d 997, 176 P.3d 197 (2008); Bonura v. Sifers, 39 Kan. App. 2d 617, 181 P.3d 1277 (2008).
We conclude that Martin’s wrongful death action came into being at the time of Curley’s death. Because this action was commenced within 2 years thereafter, the claim Martin asserts for herself and Curley’s other heirs is timely. Naik and the Hospital were not entitled to summary judgment on this claim.
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Leben, J.:
After Paul Weilert was charged with felony driving under the influence of alcohol, the district court ruled inadmissible two key items of the evidence against him — -blood-test results obtained at a hospital treating him for medical purposes and Weilert’s statement to the medical personnel about his alcohol consumption. The district court held (1) that after a driver refuses consent to law enforcement for a blood or breath test, the State can’t get other test results; (2) that disclosure of a patient’s medical information was prohibited under federal law; and (3) that a Kansas statute limiting the application of the physician-patient privilege was unconstitutional.
The State has appealed, and we have jurisdiction over its interlocutory appeal. See K.S.A. 22-3601(a). We find no support for the district court’s rulings that disclosure of Weilert’s blood-test results would violate federal law or that the Kansas Legislature may not limit the application of the statutorily created physician-patient privilege in felony and DUI cases. Nor does the State’s implied-consent law forbid the admission of independent test results of a driver’s blood or breath. Having cleared those hurdles, the admis sibility of this evidence is relatively straightforward. The evidence is clearly relevant: the State asserts that the blood-test results showed that Weilert was above legal limits and Weilert admitted to medical personnel that he had drunk six hard-liquor drinks before he crashed his motorcycle. Under Kansas law, all relevant evidence is admissible unless some statute precludes its admission. K.S.A. 60-407(f). The Kansas physician-patient privilege doesn’t apply in felony and DUI cases, K.S.A. 60-427, so there’s no statutoiy basis to exclude this evidence. It is therefore admissible.
Factual Background
Weilert crashed and totaled his motorcycle on U.S. 24 highway in Rooks County. Kansas Highway Patrol troopers responding to the scene noted that the highway at the crash location was straight and level. One trooper interviewed Weilert, who was standing in the roadway covered in dirt and grass. Weilert’s hands were scraped, but he said he didn’t want any medical treatment.
The trooper thought Weilert appeared intoxicated based on his facial expression, particularly his eyes. Weilert initially said he had struck a deer with his motorcycle, but officers didn’t find any evidence to suggest the presence of a deer. Weilert only said he wasn’t sure he’d hit the deer after the officer pointed out that no evidence suggested he’d hit a deer. As their conversation continued, the trooper smelled a strong odor of alcoholic beverages, coming from Weilert.
A second trooper on the scene testified that Weilert had slurred speech and a strong odor of alcohol. Weilert initially told that trooper that he hadn’t been drinking but changed his response after the trooper said he would give Weilert a preliminary breath test. The results of that test showed a result over the legal limit; the trooper arrested Weilert and took him to the courthouse.
On arrival there, Weilert asked that medical personnel look at his injured hands. A trooper took him to the local hospital, and the trooper read required legal notices for the purposes of obtaining a blood test for law-enforcement purposes. Weilert refused to consent to such a test. The trooper then turned Weilert over to medical personnel for treatment while the trooper filled out paperwork in the hallway. The trooper overheard Weilert give permission to medical personnel to obtain a blood sample for medical purposes only, and the trooper also overheard Weilert say that he’d consumed six hard-alcohol drinks before the accident. Weilert told medical personnel that they could have a sample of his blood but that he didn’t want to provide one to the trooper. The State ultimately obtained the blood-test result under a court order.
District Court Ruling and Standard of Review
The district court held that both the test results and Weilert’s statement to medical personnel were inadmissible. The court found that since Weilert had refused to give his blood to law enforcement for testing the State couldn’t use the test results obtained during medical treatment:
“As to the blood test, I agree with [Weilert’s attorney that] he refused. That ends it. He — the evidence I heard was that he said if the doctor needs the blood, I’ll give it to the doctor to treat me, but not to give [it] to the trooper. So that’s tantamount to a refusal. I don’t think the law contemplates using blood in that manner.”
The court separately ruled that the State could not present evidence of the statement that Weilert made to medical personnel about his liquor consumption. The court recognized that the Kansas Legislature had statutorily provided that the physician-patient privilege would not be available in felony DUI cases. K.S.A. 60-427(b). But the court concluded that Weilert had an expectation of privacy for medical information he provided for treatment purposes and that the limitation in K.S.A. 60-427(b) that makes the physician-patient privilege inapplicable to felony DUI cases was unconstitutional:
“As to overhearing the conversation about the drinks, that was totally innocuous. The officer was out in the hall, writing up his report. Mr. Weilert apparently was speaking loud enough to be heard. On the other hand, he had an expectation of privacy. . . .
“. . . I don’t think matters related to the doctors and nurses verbally by the defendant with an expectation of privacy are [admissible], . . . [L]ogically the patient has a right to a physician/patient privilege. I don’t think the legislature can do what it did. . . . [W]hen it comes down to medical consultation, if the doctor needed to know how much you ve had to drink in order for him to properly treat [the patient], that would not be admissible.”
Asked by the State to clarify the ruling, the district court said it was finding that K.S.A. 60-427(b)’s limitation of the physician-patient privilege was unconstitutional. The judge also said that this limitation of privilege “conflicts with the HIPAA laws. They won’t even talk to my wife unless I in a writing allow her to speak to them. It’s gotten very restrictive.”
On review of a district court’s ruling on a motion to suppress evidence, we review the factual basis of the ruling to determine whether substantial evidence supports it. We then review the district court’s legal conclusions independently, without any required deference to the district court. State v. Morlock, 289 Kan. 980, Syl. ¶ 1, 218 P.3d 801 (2009). Neither party contends that any of the significant facts are in dispute in Weilert’s case so we proceed to an independent review of the district court’s legal conclusions.
I. The District Court’s Conclusion that K.S.A. 60-427(b) Is Unconstitutional Is Erroneous.
We begin with the district court’s conclusion that K.S.A. 60-427(b) is unconstitutional. When considering the constitutionality of a statute, we must be respectful of the other branches of government. Courts thus must resolve all doubts in favor of a statute’s validity and must interpret the statute in a manner that makes it constitutional if there is any reasonable way to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
The statute at issue is K.S.A. 60-427(b), which spells out the legal principles that are traditionally recognized as physician-patient privilege. Because common-law privileges from disclosing information are not recognized in Kansas, the statutory language— as chosen by our legislature — determines the scope of the physician-patient privilege. State v. Clovis, 248 Kan. 313, 323, 807 P.2d 127 (1991).
Before 1988, the physician-patient privilege under K.S.A. 60-427(b) applied fully in misdemeanor cases but was not available to preclude the admission of evidence in felony prosecutions. Thus, in 1978, the Kansas Supreme Court held that a physician could not testify about information acquired in the examination of a patient given a medical examination after a misdemeanor DUI arrest. State v. George, 223 Kan. 507, 575 P.2d 511 (1978). But K.S.A. 60-427(b) was amended in 1988 to add misdemeanor DUI prosecutions to those in which the privilege may not be asserted. L. 1988, ch. 210, sec. 1. K.S.A. 60-427(b) now precludes the assertion of the physician-patient privilege in felony cases and in all DUI cases:
“[A] person, whether or not a party, has a privilege in a civil action or in a prosecution for a misdemeanor, other than a prosecution for a violation ofK. S.A. 8-1567 [the DUI statute] and amendments thereto or an ordinance which prohibits the acts prohibited by that statute, to refuse to disclose, and to prevent a witness . from disclosing, a communication, if the person claims the privilege and the judge finds that: (I) The communication was a confidential communication between patient and physician; (2) the patient or the physician reasonably believed tire communication necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor; (3) the witness (i) is the holder of the privilege, (ii) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted or (iii) is any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician’s duty of nondisclosure by the physician or the physician’s agent or servant; and (4) the claimant is the holder of the privilege or a person authorized to claim the privilege for the holder of the privilege.” (Emphasis added.)
Thus, two portions of the statute preclude its application to a felony DUI case. First, the privilege has always applied by statute only in civil cases and misdemeanor cases. The Kansas Supreme Court noted in State v. Parson, 226 Kan. 491, 492-93, 601 P.2d 680 (1979), that the physician-patient privilege “may not be invoked” in felony cases based on the statutory language. See also State v. Humphrey, 217 Kan. 352, Syl. ¶ 8, 537 P.2d 155 (1975) (under the statutory language, the physician-patient privilege “does not exist in felony cases”); State v. Campbell, 210 Kan. 265, 281, 500 P.2d 21 (1972) (same). Second, even if the charge against Weilert had been a misdemeanor, language added to the statute in 1988 (“other than a prosecution for a violation of K.S.A. 8-1567”) has eliminated the application of the privilege in misdemeanor DUI prosecutions.
The district court provided no authority for its conclusion that K.S.A. 60-427(b)’s bright-line rule making the physician-patient privilege inapplicable in felony and DUI cases is unconstitutional. Nor has Weilert provided any.
To be sure, a constitutional right to privacy has been recognized in some circumstances, and this right has been applied by some courts to the right to obtain health care confidentially. See Alpha Med. Clinic v. Anderson, 280 Kan. 903, 919-21, 128 P.3d 364 (2006) (citing cases). Accordingly, even in criminal cases, the courts have sometimes limited the discovery of an individual’s medical records. See Alpha Med. Clinic, 280 Kan. at 923-25 (requiring the redaction of medical records in an abortion case to avoid identifying patients). Yet we have found no case suggesting that there is an individual constitutional right to be afforded a physician-patient privilege in all circumstances. Further, the patients in the Alpha Medical Clinic case were not the targets of an investigation.
The Kansas Legislature has provided that the statutorily created physician-patient privilege may not be used in felony or DUI cases. Weilert has not claimed a constitutional right to the confidentiality of his medical records, and he has not provided any legal argument on appeal in support of the district court’s ruling. In light of our duty to uphold statutes whenever possible, we certainly cannot hold that K.S.A. 60~227(b)’s hmitations on the physician-patient privilege are unconstitutional on the showing made here.
II. The District Court’s Conclusion that HIPAA Precludes Admitting Weilert’s Statement to Medical Personnel Is Erroneous.
The district court separately determined that the admission of Weilert’s statement to medical personnel was precluded by federal law, specifically the Health Insurance Portability and Accountability Act of 1996, commonly referred to as HIPAA. See Pub. L. 104-191, 110 Stat. 1936 (codified in various sections of 18, 29, and 42 U.S.C.) (1996). Under HIPAA, the United States Department of Health and Human Services has adopted a regulation that limits the disclosure of information about a patient’s medical care. 45 C.F.R. § 164.512.
But the district court’s ruling is wrong for two reasons. First, HIPAA does not prohibit the disclosure of information by court order, as was done here. Second, even if HIPAA prohibited the disclosure of Weilert’s blood-test results, Kansas courts do not apply the exclusionary rule to preclude admitting the information into evidence.
HIPAA’s privacy regulation specifically provides that information may be disclosed “in the course of any judicial or administrative proceeding” under court order. 45 C.F.R. § 164.512(e)(l)(i). In addition, the regulation provides that information may be disclosed specifically for law-enforcement purposes pursuant to a court order. 45 C.F.R. § 164.512(i)(l)(ii)(A). HIPAA disclosure orders are routinely entered even in civil cases. E.g., Pratt v. Petelin, 2010 WL 446474, at *4 (D. Kan. 2010) (unpublished opinion) (approving order for disclosing plaintiffs medical records over plaintiff s objection). Courts elsewhere have accordingly ruled that HIPAA does not preclude the disclosure of a patient’s blood-test results pursuant to subpoena or court order. E.g., Armstrong v. Com., 205 S.W.3d 230, 231-32 (Ky. App. 2006); State v. Eichhorst, 879 N.E.2d 1144, 1154-55 (Ind. App. 2008); Kennemur v. State, 280 S.W.3d 305, 312 (Tex. App. 2008), cert. denied 129 S. Ct. 2005 (2009).
Even if HIPAA prohibited disclosure of Weilert’s blood-test results under court order, that prohibition would not lead to the exclusion of those results in a criminal trial. Our court held in State v. Yenzer, 40 Kan. App. 2d 710, Syl. ¶ 1, 195 P.3d 271 (2008), rev. denied 288 Kan. 836 (2009), that Kansas does not apply the exclusionary doctrine to exclude evidence when the evidence has been obtained in violation of HIPAA.
The district court wrongly concluded that HIPAA prohibited the admission into evidence of Weilert’s blood-test results.
III. Evidence of Weilert’s Blood-Test Results Done for Medical Treatment and Obtained by the State Under Court Order Is Admissible.
Like other states, Kansas has an implied-consent law under which motorists are deemed to have given consent to breath or blood testing for alcohol by driving on Kansas roads. But that implied consent is not absolute: although a driver may face license suspension as a sanction, he or she still retains the right to refuse a breath or blood test when stopped by police.
Weilert argues that because a driver has the legal right to refuse forced testing by law-enforcement officers, the State may not otherwise obtain breath- or blood-test results. In support, Weilert cites State v. Adee, 241 Kan. 825, 740 P.2d 611 (1987), which held that the State could not use a search warrant to obtain a blood test after the driver had refused a breath test. The State responds that while Aclee properly stands for the proposition that the State may not force a person to obtain testing after refusal, Adee doesn’t hold that the State may not obtain test results the driver obtains independently for medical purposes. We agree.
Weilert has cited no provision of the Kansas Implied Consent Law that either prevents the State from obtaining test results that were produced for medical purposes or from introducing such results into evidence. We certainly cannot infer an intent to do so from the language the legislature has used; the legislature specifically directed in K.S.A. 2009 Supp. 8-1001(v) that the implied-consent law should be liberally construed to promote public safety. Moreover, inferring the intent Weilert seeks to superimpose on this statute would run counter to the clear intent of the legislature’s limitation of the physician-patient privilege that has made it inapplicable in all DUI cases. As we noted at the front of this opinion, if evidence is relevant, it’s admissible unless some statute provides otherwise. By ehminating the physician-patient privilege in DUI cases, the legislature has indicated its intention to leave no hurdle to admitting test results that provide evidence of a driver’s alcohol consumption.
Weilert also cites State v. Befort, 2005 WL 81499 (Kan. App. 2005) (unpublished opinion), and a 2002 Kansas Attorney General Opinion, Att’y Gen. Op. No. 2002-26. Befort merely notes the Adee holding that the State may not use a search warrant to force a blood test after a driver has refused testing, and the Attorney General’s opinion similarly concludes that law-enforcement officers may not force further testing once a driver has refused it. Neither stands for the proposition Weilert argues here — that the State may not introduce into evidence test results the driver obtains independently for medical purposes.
With no hurdle to the admission of this evidence in the implied-consent law, the admissibility of Weilert’s test result is an easy matter. The evidence is certainly relevant, and no statute precludes its admissibility. Our court so held in State v. Mendoza, 20 Kan. App. 2d 541, Syl. ¶ 1, 889 P.2d 1147, rev. denied 257 Kan. 1095 (1995) (the result of a blood test performed in a hospital at the driver’s request was not subject to physician-patient privilege and was properly admitted into evidence in the DUI case). Weilert argues that Mendoza is factually distinguishable. He’s correct that there was no test refusal in Mendoza before medical treatment occurred; the driver in Mendoza was tested in an emergency room while being treated for injuries suffered in an accident. We find no significance, however, to this factual distinction because we have concluded, for the reasons already stated, that the Kansas implied-consent statute does not contain any provision that limits the admissibility of test results obtained for medical purposes and not at the direction of law-enforcement personnel. The district court wrongly concluded that the blood-test results obtained at the hospital were inadmissible.
IV. Evidence of Weilert’s Statements Made to Physicians During Medical Treatment Is Admissible in a Felony DUI Prosecution.
The district court separately ruled that Weilert’s statements to medical personnel were inadmissible. That ruling was based on the district court’s erroneous conclusion that the inability to claim a physician-patient privilege in felony DUI cases was unconstitutional. Weilert has not argued any other basis on appeal for upholding the district court’s exclusion from evidence of statements Weilert made to medical personnel. We therefore conclude that the district court wrongly concluded that statements Weilert made to medical personnel were inadmissible.
The judgment of the district court is reversed, and the case is remanded for further proceedings. | [
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Leben, J.:
Almost all appellate opinions include a section detailing the standard of review that applies to the decision under review. Many readers just skip over that discussion and move on to the substantive issue at hand. But the case now before us illus trates the importance of the standard of review both in its effect on the outcome of the case and its ability to keep our legal system one in which the rule of law prevails.
This case involves no factual disputes. Kansas Highway Patrol Trooper Jason Edie arrived on the scene of an auto accident shortly after the car’s driver, Doris Poteet, had been put into a helicopter for transport to a hospital. Looking over the scene, Edie saw a car lying on its passenger side that looked as if it had been driven through a field and a barbed-wire fence before it rolled. Medical personnel told Edie that they smelled alcohol on Poteet and that she had admitted to drinking a couple of glasses of wine, but Edie had no direct contact with Poteet.
Edie had the Highway Patrol send another trooper to the hospital to obtain a blood sample from Poteet once she arrived there. That trooper got Poteet’s consent, and the blood test showed her blood-alcohol concentration was 0.17, above the 0.08 legal limit for drivers. Edie said that he decided to test Poteet’s blood because the Highway Patrol always takes a blood sample when a serious accident occurs. He testified that he suspected that she was driving under the influence of alcohol based solely on the medical personnel’s statements. He also signed a certification that documented the grounds for believing that Poteet was driving under the influence of alcohol as the “odor of alcoholic beverages.”
Two statutes are at issue here, and we apply them as they existed on the date of Poteet’s accident, August 9, 2007. The first statute, K.S.A. 2007 Supp. 8-1001(b), provides that a law enforcement officer shall request a blood, breath, or other test if the officer has reasonable grounds to believe the person was driving under the influence of alcohol and one of several other factors is also present. The factor relied upon by the State in this case was that the person has been involved in a vehicle accident resulting in personal injury or death.
The second statute, K.S.A. 2007 Supp. 8-1002, requires an officer to document certain facts when a blood or breath test shows an alcohol concentration above legal limits. Among other things, the officer must certify that reasonable grounds existed to believe the person was driving under the influence of alcohol. The form issued for this purpose by the Kansas Department of Revenue, called a DC-27 form, contains a spot where the officer can identify the factual basis for this conclusion, which is where Edie checked a box for “odor of alcoholic beverages.”
Based on the blood-test result, die Kansas Department of Revenue suspended Poteet’s driver’s license for a year. She lost an administrative hearing and appealed to the district court, which ruled in her favor. Poteet raised only two issues before the district court. She lost one of those issues there — whether the person who drew her blood was properly authorized to do so — and that issue has not been presented to us on appeal. So her only challenge to the license suspension is her claim that Edie didn’t have reasonable grounds to believe she was under the influence of alcohol; the district court accepted that challenge.
The district court heard testimony from two troopers and Poteet. The court then concluded that “Edie did not have reasonable grounds for believing that [Poteet] was under the influence of alcohol.” The district court noted that the officer’s certification referenced odor of alcohol as the only factual basis for believing Poteet was under the influence of alcohol and that odor of alcohol by itself doesn’t constitute reasonable grounds. The Department of Revenue has appealed the district court’s decision.
We turn then to the standard of review. When the district court has a trial on appeal of an administrative suspension of a driver’s license, we generally review the district court’s decision under a substantial-evidence standard. Under that standard, we determine whether substantial evidence supports the district court’s decision. If so, we affirm it. See Martin v. Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 5, 163 P.3d 313 (2006). Also, under that standard, we do not consider other evidence that might support a different result as long as sufficient evidence supports the district court’s decision. See In re Estate of Antonopoulos, 268 Kan. 178, 193, 993 P.2d 637 (1999) (under substantial-evidence review, appellate court disregards evidence that might have supported a different conclusion than tire district court made).
If we were to apply only the substantial-evidence standard of review here, it would seem that we’d be called upon to affirm the district court’s judgment. Edie testified that he only relied upon the odor of alcohol when he requested the breath test, and our court held in City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 1101, 54 P.3d 532 (2002), that an odor of alcohol by itself didn’t provide reasonable suspicion that a person was too intoxicated to drive safely.
But there’s more to Poteet’s case than an odor of alcohol. Edie also observed that her car had gone through a field and a barbed-wire fence before it rolled onto its side. In addition, a helicopter took Poteet to a hospital based on her injuries.
We are not required to ignore those undisputed facts because of additional aspects of the standard of review that apply in Poteet’s case. When an issue involves a legal determination based upon undisputed facts, our review must consider those facts and be made without deference to the district court’s conclusion. State v. Jones, 270 Kan. 526, 527, 17 P.3d 359 (2001); Prewett v. Kansas Dept. of Revenue, 2004 WL 1041355, at *1 (Kan. App. 2004) (unpublished opinion). Put another way, the determination of whether an officer has reasonable grounds for a particular action involves a mixed question of law and fact. In such cases, we must review the ultimate legal conclusion — whether reasonable grounds existed — independently, even though we must defer to the district court’s factual findings. See Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). Here no facts are disputed so we move directly to the legal question.
The independent review of the ultimate conclusion of whether reasonable suspicion, probable cause, or the like exists is “necessary if appellate courts are to maintain control of, and to clarify, the legal principles” at stake. Ornelas v. United States, 517 U.S. 690, 697, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). Otherwise, one trial judge might determine, as occurred here, that Edie didn’t have reasonable grounds based solely on the odor of alcohol. We would review only to see whether substantial evidence supported that conclusion. Finding that there was, we’d affirm. But another trial judge might determine that Edie had reasonable grounds based on both the odor of alcohol and the facts of the accident. We’d then affirm the opposite conclusion because it too had evidence sup porting it. But neither the public nor law enforcement officers would have rules to guide their conduct, and such varied results would be inconsistent with the rule of law. See Ornelas, 517 U.S. at 697.
We have independently considered whether Edie had the required “reasonable grounds” to believe Poteet was under the influence of alcohol when she had her accident, and we conclude that he did. In addition to the odor of alcohol, Poteet drove through a field and a barbed-wire fence; she so lost control of the car that it rolled onto its side. These facts certainly suggest an impaired driver.
Under K.S.A. 2007 Supp. 8-1001(b), Edie was required to seek a blood or breath test if he had reasonable grounds to believe that Poteet was driving under the influence and an accident causing personal injury or death occurred — only the reasonable grounds to believe Poteet was under the influence of alcohol is at issue here. The determination of reasonable grounds is similar to a determination of probable cause to make an arrest. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775, 148 P.3d 538 (2006). Probable cause to arrest is reached when a reasonably prudent police officer would believe that guilt is “more than a mere possibility.” Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998). That standard was met here.
Poteet argues in her brief that the facts of the accident may not be considered because the officer didn’t cite them on the DC-27 certification form. But our court recognized in Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 768, 758 P.2d 226, rev. denied 243 Kan. 777 (1988), that the facts contained in the certificate may be supplemented by testimony and that all of the factual information available to officers when the test was requested may be considered when determining whether the officers had a sufficient basis for the request. See also K.S.A. 2007 Supp. 8-1001(b) (collective knowledge of all officers may be considered when requesting test for alcohol). Edie was well aware of the facts we’ve noted when he requested the test — he’d observed them with his own eyes. Poteet also argues that Edie never talked directly to Poteet and didn’t even know the names of the medical personnel who told him about the odor of alcohol. But probable-cause determinations may be made based upon reliable hearsay information, and information provided by on-the-scene emergency personnel is sufficiently rehable. See State v. Landis, 37 Kan. App. 2d 409, 418-19, 156 P.3d 675, rev. denied 284 Kan. 949 (2007).
We also note that the legislature has indicated that an officer has probable cause to believe a person is under the influence of alcohol whenever the person operates a vehicle in such a manner as to cause serious injury to anyone, including the driver. K.S.A. 2007 Supp. 8-1001(k). Certainly the combination of the facts of Poteet’s accident plus the reported odor of alcohol about her was sufficient.
We note briefly one other aspect of Edie’s testimony that may have led in part to the district court’s ruling. Edie maintained in his testimony that the only factor he had relied upon to support reasonable grounds was the odor of alcohol; he never cited the facts of the accident as a basis for his suspicion. The apparent reason for this appears to be that the Highway Patrol has a policy to take a blood sample in any case involving a serious accident, as Edie separately testified. We don’t know whether that’s an accurate statement of Highway Patrol policy since the statute requires both a serious accident and reasonable grounds to believe the person was operating the vehicle under the influence of alcohol. See K.S.A. 2007 Supp. 8-1001(b). Given Edie’s understanding of the policy, however, it’s not surprising on a practical level that Edie didn’t think of the facts of the accident as a reason for his suspicion that Poteet was under the influence of alcohol — the policy essentially caused Edie to set those facts aside. But there’s no question that Poteet drove through a field and a barbed-wire fence before the car rolled on its side, and there’s also no doubt that Edie knew it. Edie’s failure to cite the facts of the accident as a ground for his suspicion, either on the DC-27 form or in his testimony, does not eliminate those facts from proper consideration.
The judgment of the district court is reversed. The case is remanded with directions to enter judgment affirming the administrative suspension of Poteet’s license. | [
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Rulon, C.J.:
The petitioner, Dr. Ruth J. Heflin, appeals the due process hearing officer s decision upholding respondent Kansas City Kansas Community College’s (KCKCC) decision to terminate petitioner’s employment. We affirm.
Underlying Facts
When the events giving rise to this action occurred, petitioner had been employed as an associate professor of English at KCKCC for about 10 years. KCKCC has a main campus in Kansas City, Kansas, and a satellite campus in Leavenworth, Kansas, and offers on-line courses in which the teaching is all done via a computer.
In the 5 years leading up to the fall 2007 semester, petitioner had taught primarily on-line courses. To the extent petitioner taught “on-ground” classes, i.e., in a classroom on campus, petitioner taught exclusively at the Leavenworth campus. At the start of the spring 2006 semester there was an agreement reached among petitioner, her supervising dean, and the director of the Leavenworth campus that petitioner’s office would be located at the Leavenworth campus. Because of petitioner’s office designation, she requested mileage reimbursement for her trips between Leavenworth and the main campus in Kansas City, Kansas, for committee meetings and curriculum preparation. Leota Marks, KCKCC’s Dean of Human Resources, denied petitioner’s requested mileage reimbursement because, at the time, petitioner was teaching all ón-line classes and the requested reimbursement did not fall within the provost’s administrative procedures. Specifically, Marks referred to the following prohibition: “ ‘Full time faculty are not paid to drive from their home to their designated work site.’ ” Petitioner objected to Marks’ refusal to approve petitioner’s mileage reimbursement request because petitioner’s understanding was that petitioner’s designated work site was the Leavenworth campus. Petitioner contended she should be paid mileage for her trips between the Leavenworth campus, as her designated work site, and the main campus in Kansas City, Kansas.
Through a series of e-mails sent in September and October 2006, the disagreement between petitioner and Marks over the mileage reimbursement escalated. Marks continued to refuse to pay the mileage on the ground petitioner’s travel was not between work destinations. Petitioner complained of bias against the Leavenworth campus as the “poor sister” and against on-line faculty, and ultimately threatened to file a grievance over the mileage issue unless her mileage request was paid and the mileage policy was revised to allow for reimbursement to faculty who drove to the ■Kansas City campus from the Leavenworth campus to attend meetings.
According to petitioner, Marks eventually approved petitioner’s reimbursement request in an amount close to $234. In July 2006, a new master contract between the Board of Trustees and faculty of KCKCC went into effect, covering the period of July 1, 2006, to June 30, 2009. A significant new requirement in this contract was the following provision related to professional work load:
“No work load will exceed thirty (30) semester hours for the two-semester academic year. The load will consist usually of between thirteen (13) and seventeen (17) hours of instruction per semester, together with at least 10 clock hours per week of regularly scheduled office hours for student conferences, paper checking, supervision and preparation.
“Professional Employees who teach at off-campus sites may keep office hours where they meet students. Such office hours should be for the benefit of the off-campus students. For those Professional Employees who teach online courses, no less than 50% of the required office hours shall be held on campus. Office hours of Professional Employees shall not interfere with the responsibilities of Professional Employees to participate in campus-based activities. Faculty will malee arrangements with supervisors for participation in campus-based activities, including but not necessarily limited to division meetings and in-services.”
On December 13, 2006, KCKCC Provost Morteza Ardebili notified petitioner via e-mail that petitioner’s assigned work destination and office location, effective January 8, 2007, would be at the main campus in Kansas City, Kansas.
On January 9, 2007, petitioner filed a grievance challenging the provost’s action in changing petitioner’s work destination and office to the main campus. Petitioner’s grievance was forwarded from Level Three (Faculty Unit Grievance Committee) to Level Four (College President), where petitioner’s remedy sought: “To restore the Grievant’s work destination’ and office as the Leavenworth campus, as per the agreement made between the former Dean of Humanities, the Executive Director of the Leavenworth Center, and the Grievant in January 2006.”
Petitioners grievance was denied at Level Four in February 2007 and petitioner appealed to Level Five (Board of Trustees). Although the Board of Trustees ultimately issued a final determination sustaining the Level Four denial of petitioner’s grievance, the issuance of the determination occurred after the deadline for such determination, and petitioner claimed to have won the grievance based on the untimeliness of the Board of Trustees’ determination. Petitioner claimed she won her grievance and was entitled to have her office officially located at the Leavenworth campus.
In late June 2007, petitioner sent the Board of Trustees a memorandum stating petitioner’s understanding that the Board of Trustees had failed to respond to the grievance within the proper time limit and petitioner’s remedy should be granted. Petitioner stated: “Therefore, I will continue to maintain my office at the Leavenworth campus, as per the agreement made between the former Dean of Humanities, the Executive Director of the Leavenworth Center and myself in January 2006.”
The Board of Trustees responded with a letter disagreeing with petitioner’s interpretation, maintaining petitioner’s grievance was properly and timely denied, and informed petitioner her “primary place of duty will be the main campus in Kansas City, Kansas, not the Leavenworth facility.” Eventually, petitioner’s contract was renewed for the July 1, 2007 — June 30, 2008, contract year in accordance with the terms and conditions of the master contract.
For the fall 2007 semester, petitioner was assigned to teach four on-line courses and one course at the main campus in Kansas City, Kansas. Petitioner was not assigned to teach any courses at the Leavenworth campus. Before classes started for the fall 2007 semester, petitioner’s new supervising dean, Tamara Agha-Jaffar, learned petitioner had turned in her office key for the Kansas City campus and intended not to hold office hours on the Kansas City campus during the semester. Agha-Jaffar e-mailed petitioner on August 9 to confirm petitioner’s intentions. Petitioner replied her office was located at Leavenworth, per petitioner’s grievance rem edy, where she would be holding part of her on-ground office hours. Petitioner stated she would arrange office hours in or near the classroom, before or after class, for students in her class on the Kansas City campus.
Agha-Jaffar responded that petitioner’s office hours arrangement did not make sense, because petitioner was not teaching any courses at the Leavenworth campus that semester. Agha-Jaffar expressed concern petitioner would not be serving her Kansas City students well by meeting “in the hallway” before or after class, noting petitioner’s classroom hosted another class immediately following petitioner’s class. Agha-Jaffar noted the master contract required 5 hours of on-ground office hours for the purpose of meeting with on-ground students. Agha-Jaffar directed petitioner to hold office hours at the Kansas City campus and suggested petitioner could do so before and after petitioner’s class to minimize any burden on petitioner.
Petitioner told Agha-Jaffar to reconsider the order directing petitioner to hold office hours at the main campus in light of petitioner’s grievance victory, or else the issue would “go directly to court.” Petitioner told Agha-Jaffar to contact petitioner’s attorney before “attempting any such Breach.” Petitioner then told Agha-Jaffar that petitioner only had to hold 17% of her on-ground office hours at the Kansas City campus, which represented the equivalent percentage of her on-ground class to petitioner’s total teaching load. Agha-Jaffar informed petitioner, “You have left me no choice but to forward your decision to the Provost, Dr. Morteza Ardebili,” and petitioner again responded, “[Y]ou should contact my attorney.”
On August 13, 2007, Provost Ardebili e-mailed petitioner to inform petitioner he had received copies of petitioner’s e-mail correspondence with Dean Agha-Jaffar. The provost reiterated that, per the master contract, petitioner was required to hold 5 office hours per week on campus. The provost continued:
“Furthermore, since your station has been designated as the KCKCC main campus, you are not permitted to have an office at the Leavenworth Center. You are hereby directed to hold your five office hours per the KCKCC Master Contract on the main campus.
“If I am not informed in writing by noon Tuesday, August 14, 2007, that you have complied with this directive, I will immediately, recommend your termination to President Tom Burke and the KCKCC Board of Trustees.”
On August 14, petitioner replied: “As I told Dean Agha-Jaffar, and as I have been instructed to tell everyone who questions my winning of my grievance about this very issue (of where my office is located), you may contact my attomey[.]” The same day, Dean Leota Marks mailed petitioner a letter informing petitioner her employment with KCKCC had been suspended without pay, pending termination, due to petitioner s refusal to comply with the expectations and directives of her dean and the provost.
Petitioner requested a review of her suspension by the Board of Trustees, stating petitioner s belief the directives regarding petitioner s office hours were in violation of the remedy petitioner had received via her grievance.
On October 11,2007, the Board of Trustees adopted a resolution of intent to terminate petitioner s employment, setting forth the following reasons for termination:
“a) That Ruth J. Heflin was insubordinate by refusing to accept the reasonable and proper work assignment from her supervisor concerning the location of her office.
“b) Her office had been assigned at the main campus of Kansas City Kansas Community College, and according to the Master Contract, ‘For those Professional Employees who teach online courses, no less that [sic] 50% of the required office hours (i.e. five hours per week) shall be held on campus.’
“c) In spite of repeated attempts on behalf of the Dean of Humanities and Fine Arts and the Provost to resolve the issue, Ruth Heflin blocked the channel of communication.”
Petitioner was provided with notice of the resolution and was informed of her opportunity to request a hearing before a hearing officer. Eventually petitioner requested a due process hearing.
The hearing was held on January 25 and 29,2008. The witnesses at the hearing included Agha-Jaffar, Marks, Ardebili, and the petitioner. KCKCC provided 100 exhibits and petitioner provided nearly 30 exhibits. Most of the exhibits consisted of letters and emails between the parties and minutes of various Board of Trustees meetings.
On March 25, 2008, the due process hearing officer issued his decision. The hearing officer set forth 12 relevant facts before engaging in a detailed discussion of the case. The hearing officer found “neither party comes to this case with clean hands,” citing petitioner s history of conflict and confrontation and KCKCC’s failure to timely respond to petitioner’s grievance.
While recognizing petitioner achieved a “technical win” as to her grievance, the hearing officer found the win was limited in scope to petitioner’s contract for the fall 2006-spring 2007 school year, when petitioner was teaching all courses on-line or at the Leavenworth campus. The hearing officer found the college’s provost retained the sole authority to assign class schedules and office locations, and therefore to “infer from [the grievance remedy that] KCKCC is now bar[r]ed from ever making changes in class assignments or office assignments is an error.”
The hearing officer found the reason for petitioner’s termination articulated by the Board of Trustees was made in good faith; was rational, reasonable, and relevant to the Board’s task; was supported by substantial evidence; and constituted good cause for termination. The hearing officer accordingly affirmed petitioner’s termination.
Petitionér timely filed a notice of appeal and petition for judicial review. Following the submission of briefs and oral argument, the district court denied the petition for judicial review in an order filed December 30, 2008. The district court held the hearing officer’s finding that petitioner was insubordinate in refusing to perform office hours at the Kansas City campus was reasonable and supported by substantial evidence.
Standard of Review
This court’s review of a hearing officer’s decision pursuant to K.S.A. 72-5436 et seq. is made as if the appeal had been taken directly to this court. See In re Due Process Hearing of McReynolds, 273 Kan. 514, 517, 44 P.3d 391 (2002).
Review of the hearing officer’s decision is limited to deciding if: (1) the decision was within the scope of the hearing officer’s authority; (2) the decision was supported by substantial evidence; and (3) the hearing officer did not act fraudulently, arbitrarily, or capriciously. 273 Kan. at 517. The reviewing court may not reweigh the evidence and substitute its judgment for that of the hearing officer. U.S.D. No. 500 v. Robinson, 262 Kan. 357, 361, 940 P.2d 1 (1997).
In making his or her decision, the hearing officer should be guided by three factors: (1) the school board has the burden of proof, (2) the board’s reasons for termination must constitute good cause, and (3) the decision must be supported by substantial evidence. 262 Kan. at 361.
Substantial Evidence
On appeal, petitioner first argues the hearing officer’s decision was not supported by substantial evidence. Specifically, petitioner asserts there was not substantial evidence supporting the following findings made by the hearing officer:
• petitioner’s grievance remedy was limited to the 2006-2007 contract year;
• the provost’s order to hold office hours on the Wyandotte campus was reasonable under the circumstances;
• petitioner refused to comply with the provost’s order and was therefore insubordinate; and
• petitioner engaged in conflict instead of interacting as a professional.
Respondent contends the hearing officer’s finding of good cause for termination based upon petitioner’s insubordination in refusing to hold 5 office hours per week at the Kansas City campus during the fall 2007 semester was supported by substantial evidence.
“Substantial evidence” is evidence possessing both relevance and substance and which provides a substantial basis of fact from which the issues can reasonably be determined. Evenson Trucking Co. v. Aranda, 280 Kan. 821, 836, 127 P.3d 292 (2006). Put another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Williams v. Lawton, 288 Kan. 768, 803, 207 P.3d 1027 (2009).
Ultimately, petitioner’s contention is that because petitioner won her grievance, she was entitled to keep her office location in Leav enworth until some point in the future when petitioner and KC-KCC may mutually decide to relocate petitioner’s office.
KCKCC contends the provost has sole authority for determining faculty office location; the master contract required petitioner to provide 5 hours of on-ground office hours at the campus where petitioner taught; and the provost accordingly issued a reasonable order for petitioner to locate her office and conduct office hours at the Kansas City campus for the fall 2007 semester. Respondent further contends petitioner was insubordinate and thus her termination was justified.
Helpful to our analysis is to restate the grounds provided by the Board of Trustees for petitioner’s termination:
“a) That Ruth J. Heflin was insubordinate by refusing to accept the reasonable and proper work assignment from her supervisor concerning the location of her office.
“b) Her office had been assigned at the main campus of Kansas City Kansas Community College, and according to the Master Contract, ‘For those Professional Employees who teach online courses, no less that [sic] 50% of the required office hours (i.e. five hours per week) shall be held on campus.’
“c) In spite of repeated attempts on behalf of the Dean of Humanities and Fine Arts and the Provost to resolve the issue, Ruth Heflin blocked the channel of communication.”
Reasonableness of Provost’s Order
Although the hearing officer found the petitioner’s remedy was limited to the fall 2006-spring 2007 contract year, there is no indication in the master contract or the grievance that petitioner’s remedy was actually limited to this period. However, while this finding by the hearing officer may have been technically incorrect, it does not necessarily undermine the hearing officer’s findings supporting petitioner’s termination. Although the petitioner’s grievance remedy was not necessarily limited to one contract year, the grievance remedy did not establish that petitioner’s office location was to be set at the Leavenworth campus in perpetuity, never to be changed. The hearing officer found: “To infer from [the grievance remedy that] KCKCC is now bar[r]ed from ever making changes in class assignment or office assignments is an error.”
The KCKCC provost has the ultimate authority to assign faculty members to work locations. This authority is recognized by the KCKCC faculty association. At the hearing, petitioner was unable to cite any rule or provision supporting her belief that work locations could be changed only with the faculty member’s consent.
KCKCC deans cannot assign faculty members to work locations, although they can send recommendations, or a faculty member’s request as to work location, to the attention of the provost for consideration. In considering a requested work location, the provost examines the college-wide impact of the assignment, both financially and in relation to other faculty members. Clearly the purported agreement as to the Leavenworth office location underlying petitioner’s grievance was made only between petitioner, her dean, and the Leavenworth campus director. We conclude the KCKCC provost had the authority to assign petitioner’s work locations, even in light of petitioner’s successful grievance.
Provost Ardebili determined that, in his best judgment, it was not necessary “at this point or in the near future to station any full-time faculty at Leavenworth center.” Ardebili provided various reasons supporting this determination: The Leavenworth center is a single building with one-fifth of the students of the Kansas City campus; there are a variety of satellite facilities similar to the Leavenworth center; once a faculty member is stationed at the Leavenworth center, other faculty will want to be stationed at satellite centers close to their homes; all faculty activities, committees, assessment, in-services, and divisions are on the Kansas City campus; and full-time faculty are needed on the Kansas City campus. In light of these considerations, the provost determined he could not station petitioner at the Leavenworth center.
Importantly, the terms of the master contract require faculty who teach on-line courses to hold at least 5 office hours per week on campus. The hearing officer actually interpreted this provision to require faculty to hold 10 office hours unless they only teach on-line courses. However, the master contract does not include language limiting the required office hours this way, and the mutual understanding of the parties appears to be that the contract requires only 5 on-ground office hours if a faculty member teaches any on-line course during a semester. As the hearing officer noted, this difference in interpretation does not really impact the resolution of the issues in this case, as the petitioner refused to hold even 5 office hours at the Kansas City campus per week. Under either interpretation of the master contract, because petitioner s only on-ground teaching assignment for the fall 2007 semester was at the Kansas City campus, it was “reasonable for the provost to direct petitioner serve the on-ground office hours required by the master contract at the Kansas City campus.
The evidence supports the hearing officer s determination the provost’s order as to petitioner’s office hours and office location was reasonable. There were reasonable grounds for the order, even in light of petitioner’s successful grievance. The next question is whether there was substantial evidence supporting the finding petitioner refused to comply with the provost’s order and was therefore insubordinate.
Petitioner’s Insubordination
Petitioner asserts she did not refuse to hold office hours at the main campus, but rather only refused to move petitioner’s office to the main campus per her grievance remedy. Petitioner argues she reasonably offered to hold some of her office hours at the Kansas Ciiy campus.
“Insubordination” is defined as: “1. A willful disregard of an employer’s instructions, esp. behavior that gives the employer cause to terminate a worker’s employment. 2. An act of disobedience to proper authority; esp., a refusal to obey an order that a superior officer is authorized to give.” Black’s Law Dictionary 870 (9th ed. 2009). A single act of disobedience can constitute insubordination. See Leaming v. U.S.D. No. 214, 242 Kan. 743, 750 P.2d 1041 (1988); Gaylord v. U.S.D. No. 218, 14 Kan. App. 2d 462, 465-66, 794 P.2d 307 (1990).
Having concluded there was sufficient evidence the provost’s order was reasonable, we further conclude there was sufficient evidence petitioner refused to comply with this order and so was insubordinate.
Petitioner freely admits she refused to move her office to the main campus, in compliance with the provost’s order. As to petitioner’s required on-ground office hours, petitioner contends she was in compliance with the master contract by offering to split these hours between the Kansas City and Leavenworth facilities, resulting in less than an hour of office hours per week at the Kansas City campus. Petitioner justified this offer as consistent with “past practice,” but admitted such practice was not necessarily supported by the terms of the master contract.
More relevant for our analysis, however, is that petitioner’s “offer” was contraiy to the provost’s directive to hold all on-ground office hours at the Kansas City campus. Petitioner’s only on-ground class was at the Kansas City campus. Clearly, it was reasonable to expect petitioner to conduct her on-ground office hours at the Kansas City campus in order to be accessible to the students there.
We are firmly convinced there is substantial evidence petitioner directly refused to comply with the provost’s reasonable order. Petitioner’s refusal constituted insubordination.
Petitioner’s Professionalism
Finally, petitioner argues there was not substantial evidence supporting the hearing officer’s finding that petitioner “decided to engage in a conflict rather than interact as a professional.” According to petitioner, she was just attempting to uphold her grievance remedy in the face of KCKCC’s refusal to acknowledge her victory. Petitioner maintains she requested the dean and the provost contact her attorney in an “attempt to open discussions.”
Respondent contends the hearing officer’s finding of petitioner’s insubordination was supported by petitioner’s e-mail correspondence with KCKCC’s administration.
Having already determined there was substantial evidence petitioner was insubordinate in refusing the provost’s reasonable order regarding office hours and office location, our analysis suggests this isolated statement from the hearing officer’s decision bears little significance for the resolution of this case. Whatever the petitioner’s specific, subjective intent in refusing to comply with the provost’s order, the end result was that petitioner was insubordinate.
Nevertheless, the record reflects petitioner acted in an antagonistic manner toward her dean and the provost throughout the period in question. When Dean Agha-Jaffar requested that petitioner hold her office hours at the Kansas City campus, asking petitioner to think of the students’ interests and showing there would be no additional burden, petitioner replied by implying the dean’s order was a “direct Breach of Contract, which means we go directly to court.” Petitioner then supplied her attorney’s name and phone number. Petitioner’s two subsequent responses to the dean and the provost were essentially, “Call my attorney.”
As the hearing officer recognized, KCKCC did not help matters by its casual handling of petitioner’s grievance and by then denying petitioner had prevailed on her grievance. However, petitioner’s grievance victory did not provide petitioner with the authority to decide whether or not to follow her superior’s orders. Rather than engaging in discussion and attempting to resolve the disagreement over her fall 2007 office location and office hours through dialogue with the administration, petitioner chose to stake her employment with KCKCC on her interpretations of the grievance and the nature of her remedy.
We are convinced there was substantial evidence supporting the hearing officer’s finding that petitioner was insubordinate by refusing to comply with die provost’s reasonable order.
Arbitrary or Capricious
Petitioner next argues the hearing officer’s decision was arbitrary and capricious because the hearing officer found petitioner was insubordinate for reasons other than those given by the Board of Trustees in the notice of intent to terminate. The petitioner further argues the hearing officer’s decision was arbitrary and capricious because the findings of insubordination were not supported by substantial evidence.
In the context of administrative law, an agency action is arbitrary and capricious if it is unreasonable or without foundation in fact. See Chesbro v. Board of Douglas County Comm’rs, 39 Kan. App. 2d 954, 970, 186 P.3d 829, rev. denied 286 Kan. 1176 (2008).
Petitioner s argument here is that the hearing officer’s decision was unreasonable because the decision violated due process by relying on grounds other than those given by the Board of Trustees in the termination resolution. See Haddock v. U.S.D. No. 462, 233 Kan. 66, 78, 661 P.2d 368 (1983) (school board could not base decision to nonrenew teacher, made in the board’s quasi-judicial capacity, on reasons differing from those given in notice to teacher); see also Robinson, 262 Kan. at 370-71 (due process requires teacher be given sufficient notice of reasons for nonrenewal so that teacher has a fair opportunity to respond at hearing).
Petitioner contends the "only expressed reason” given by the Board for terminating her contract was for refusing the order concerning the location of her office and, possibly, “allegedly blocking channels of communication.” Petitioner contends the hearing officer instead relied on petitioner’s refusal to hold office hours on the Kansas City campus.
Petitioner’s argument is not supported by the record or by the hearing officer’s decision. The communications between the parties leading to petitioner’s termination and the three paragraphs set out by the Board of Trustees as its reasons for termination made clear one of the issues was petitioner’s refusal to hold 5 office hours per week on the Kansas City campus. The hearing officer was not arbitrary or capricious in considering this issue.
Further, the hearing officer’s decision clearly discussed the other two reasons for termination given by the Board of Trustees. The decision addressed petitioner’s office location issue when the decision discussed the limits of petitioner’s grievance as to this issue, and the decision addressed the blocking communication issue when finding petitioner’s history of conflict, defiant attitude, and “refusal to even discuss the new circumstances.”
The hearing officer found “that the reason for termination articulated by the Board of Trustees was made in good faith and is rational, reasonable and relevant to the Board’s task of building up and maintaining an efficient school system.” (Emphasis added.) The hearing officer then found “that the reason for termination is supported by substantial evidence and constitutes good cause for termination of a tenured teacher.”
The hearing officer properly reviewed and based his decision on the reasons for termination set forth by the Board of Trustees. We conclude the hearing officer s decision was not arbitrary or capricious.
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Pierron, J.:
Andrew Johnson appeals his conviction for misdemeanor driving under the influence of alcohol (DUI). Johnson had a blood-alcohol concentration exceeding the legal limit after being stopped at a sobriety check point in Wichita. Johnson chai lenges the district court’s failure to dismiss the proceedings based on the destruction of the arresting officer’s field notes and failure to preserve a breath sample stored in the Intoxilyzer 5000. He also argues the trial court erroneously denied his motion to suppress based on insufficient probable cause to request a breath test, the State’s failure to lay sufficient foundation of calibrating the Intoxilyzer 5000, and his right of confrontation, which was violated by the admission of the certification of the Intoxilyzer 5000 by the sheriff s department and the individual deputy. We affirm.
On July 28 and 29, 2007, officers of the Sedgwick County Sheriff s Department conducted a DUI sobriety check point in Wichita. Johnson pulled into the check point around 1:25 a.m. Officer Kenneth Kooser testified that Johnson’s vehicle almost struck another vehicle as it merged into one of the check lanes and then slowed up for the reflecting cones “as if it kind of snuck up on him.” When asked if he had been drinking, Johnson told Officer Kooser that he had two beers. Officer Kooser testified there was an odor of alcoholic beverages coming from Johnson, his speech was not clear, and his eyes appeared to be bloodshot and watery. There was also an open 12-pack of beer on the floorboard behind the driver’s seat. Officer Kooser asked Johnson to get out of the car and accompany him to an area designated for field sobriety testing. Officer Kooser alleged that Johnson swayed from side to side as they walked.
Johnson’s performance on the field sobriety tests was captured on police video but unfortunately the video did not show Johnson walking to the testing area. In the video, Officer Kooser asked Johnson to perform field sobriety tests based on the odor of alcohol beverages coming from Johnson. Officer Kooser had Johnson perform the walk and turn test and the one-legged stand test. Johnson exhibited three clues of intoxication during the walk and turn test. He allegedly exhibited two clues of intoxication during the one-legged stand test. Officer Kooser believed Johnson was intoxicated and read him the implied consent advisories before requesting a breath test. Johnson consented to a breath test and blew a .084 blood-alcohol concentration in the Intoxilyzer 5000.
Johnson was charged with misdemeanor driving under the influence of alcohol with a blood-alcohol concentration of .08 or higher and alternatively with driving under the influence of alcohol to the extent that he could not safely operate a motor vehicle. Prior to trial, Johnson filed a motion to suppress the evidence of the warrantless search, a motion to dismiss based on the destruction of Officer Kooser’s field notes, and the failure to save the breath sample contained in the tox trap in the Intoxilyzer. He also filed a motion in hmine to exclude evidence of the breath test based on improper calibration of the Intoxilyzer. The district court conducted' a pretrial evidentiary hearing on the motions and declined to grant any of the requested relief.
The district court granted Johnson’s request for a jury trial. The jury found Johnson guilty of driving with a blood-alcohol concentration higher than .08 but acquitted him of the alternative charge of driving under the influence of alcohol to the extent he was incapable of safely operating a motor vehicle. The court denied Johnson’s motion for a new trial and sentenced him to 48 hours’ confinement and 1 year of probation.
First, Johnson first argues the district court erred in denying his motion to dismiss based on the destruction of Officer Kooser’s field notes.
“Common sense suggests that when reviewing a trial court’s denial of a motion to dismiss criminal charges, the applicable standard of review is determined by the ground on which dismissal was sought rather than a blanket standard for motions to dismiss.” State v. Garcia, 282 Kan. 252, 259, 144 P.3d 684 (2006).
Johnson cites K.S.A. 22-3213 for authority that the State was required to produce all statements by the officers, including the field notes used by Officer Kooser in preparing his report. K.S.A. 22-3213(2) provides that in any criminal proceeding:
“After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.”
At the close of the evidence at trial, the district court conducted an evidentiary hearing on Johnson’s motion to dismiss for the destruction of Officer Kooser’s field notes.
Officer Kooser testified that eveiything contained in his field notes was transferred to his alcohol influence report or narrative report. He testified that he was unaware of any department policy concerning the retention of field notes and he had destroyed the notes concerning Johnson’s DUI stop only because he had totally and accurately transferred them to the official reports.
In denying the motion to dismiss, the district court concluded: (1) There was no evidence of a department policy concerning maintenance of field notes and Officer Kooser was not aware of one; (2) Officer Kooser’s destruction of the field notes was for “benign purposes, certainly not malignant purposes or detrimental by intent to the defense”; (3) Officer Kooser fully and accurately transferred his shorthand field notes into a more understandable account in the alcohol influence report or narrative report; (4) all reports had been made available to prosecution and defense; and (5) there was no evidence to support a finding that Officer Kooser knowingly destroyed the field notes because it was helpful to or potentially exculpatory for the defense.
“In cases where the State fails to preserve potentially useful evidence, there is no due process violation unless the defendant shows bad faith on the part of the State. Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988); Taylor v. State, 251 Kan. 272, 278, 834 P.2d 1325 (1992)[, disapproved on other grounds State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997)].” State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106 (2000). The question of whether the State acted in bad faith is a question of fact. 268 Kan. at 551. On appeal, this court reviews the district court’s findings of fact to determine if they are supported by substantial competent evidence. Also, this court reviews the findings to determine if they are sufficient to support the district court’s conclusions of law. State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002).
Substantial evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence is legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594-95, 153 P.3d 1257 (2007).
The United States Supreme Court has held that due process only requires the preservation of evidence which might play a significant role in the defendant’s defense. California v. Trombetta, 467 U.S. 479, 485, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984). The Court has also held that under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, good or bad faith on the part of the State is irrelevant when the State fails to disclose exculpatory and material evidence. However, the standard is different when the State fails to preserve evidence for which no more can be said than that the evidence could be subjected to tests and the results might exonerate the defendant. Arizona v. Youngblood, 488 U.S. 51, 57, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), reh. denied 488 U.S. 1059 (1989).
The Court in Youngblood held that the Trombetta decision refused to impose an absolute duty on its policy to retain and preserve all material that might be of evidentiary significance in the prosecution of a defendant. 488 U.S. at 58. Moreover, the Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58. Kansas has adopted the ruling and reasoning of Youngblood. See, e.g., State v. Torres, 280 Kan. 309, 321, 121 P.3d 429 (2005); State v. Kleypas, 272 Kan. 894, 936, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002).
We are not persuaded by Johnson’s argument that the field notes contain a more contemporaneous and, therefore, presumably more accurate account of what happened at the time of his arrest. Officer Kooser’s notes were in shorthand and were taken in rapid fashion during the events of Johnson’s stop and arrest. From his shorthand notes, Officer Kooser prepared the alcohol influence report within hours of Johnson’s arrest. Johnson entered the checkpoint at 1:25 a.m. Officer Kooser testified that he had completed his alcohol influence report by 4 a.m. It is difficult to argue that either Johnson’s field notes or his reports are “more contemporaneous” than one another.
This case does not involve the complete destruction or a complete loss of evidence. Rather, it involved the transcription of notes into a more readable format. In light of the fact that Johnson’s field sobriety tests were captured on video, we are hard pressed to find Officer Kooser’s field notes would have included any evidence that defense counsel would not have covered in his cross-examination of Officer Kooser. Consequently, we cannot find a violation of Johnson’s right to confront the witnesses against him. See, e.g., State v. Noah, 284 Kan. 608, 616, 162 P.3d 799 (2007) (the Confrontation Clause guarantees an opportunity for effective cross-examination). We agree with the State that the only thing that can be said was that the field notes may have contained something that may have exonerated Johnson and that does not translate into evidence that was exculpatory.
There was substantial competent evidence to support the district court’s findings that there was no bad faith on Officer Kooser’s part. Here, as noted by the court, there was no evidence of bad faith presented by the defense and Officer Kooser testified he fully and accurately transcribed his entire field notes into either the alcohol influence report or the narrative report. The defense was able to fully explore all reports during cross-examination. Johnson was not denied a fair trial, and there was sufficient evidence to support the trial court’s denial of his motion to dismiss for destruction of the field notes.
Along the same lines as the prior issue, Johnson also argues the district court erred in denying his motion to dismiss based on the failure of the police officers to preserve a breath sample in the Intoxilyzer. Johnson contends the failure to preserve the sample for further testing violated his right to effectively confront the witnesses and denied him a fair trial.
We have previous discussed California v. Trombetta, 467 U.S. 479, and Arizona v. Youngblood, 488 U.S. 51. The facts in Trombetta are very similar to the case at bar. The Supreme Court con sidered what might be an appropriate sanction where an intoxicated driver s breath sample was not preserved for use by the defense. In determining the materiality of destroyed evidence, the Court reasoned that Trombetta could not demonstrate: (1) a reasonable likelihood that the destroyed evidence contained any exculpatory value and (2) the inability to obtain comparable evidence by reasonable alternative means. 467 U.S. at 489. Youngblood extended Trombetta and concluded that in cases involving the failure to preserve “potentially useful” evidence, i.e. evidentiary material of which no more can be said that it could have been subjected to tests which might have exonerated the defendant, due process is not violated unless the defendant can show that law enforcement acted in bad faith in destroying the evidence. 488 U.S. at 57-58. The holding in Youngblood is applicable here again since there was not even a suggestion of bad faith on the part of the officers in disposing of the breath sample, and the Supreme Court concluded that the failure to preserve potentially useful evidence did not violate due process. 488 U.S. at 58.
Johnson acknowledges Trombetta and Youngblood. However, the crux of his argument is that in cases where a defendant’s blood-alcohol concentration is without a doubt over the legal limit, the due process concerns of preserving a breath sample are not imperative. A second test will most likely demonstrate a high level of intoxication. See Trombetta, 467 U.S. at 489 (“In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer’s determination that the defendant had a high level of blood-alcohol concentration at the time of the test.”). However, here, Johnson states he was a mere .004 over the legal limit and the due process concerns are paramount. In Trombetta, the defendant’s blood-alcohol concentration was “substantially higher than 0.10 percent.” 467 U.S. at 482. This issue is a substantial one.
The starting point in our analysis is the language of the pertinent statutes. Kansas law states that “[a]ny person who operates or attempts to operate a vehicle within this state is deemed to have given consent ... to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.” K.S.A. 2009 Supp. 8-1001(a). If you drive a vehicle in Kansas, you have consented to a blood-alcohol test given the police have sufficient grounds to request one. We have previously held that the results from a single breath test are scientifically reliable and, therefore, should be admitted into evidence. See Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 192-94, 959 P.2d 940, rev. denied 365 Kan. 885 (1998). In denying Johnson’s motion to dismiss, the trial court held that it would be unduly burdensome upon the State to maintain all samples without any actual evidence they would be beneficial.
Of great importance, the district court noted drat the Kansas statutes contain provisions for separate testing if requested by the defendant. Here, Johnson did not request the opportunity for additional testing.
The question we must again address is whether Johnson showed that the State believed the breath sample was exculpatory evidence at the time it was destroyed. See Finley, 273 Kan. at 241-42; LaMae, 268 Kan. at 551. Evidence is exculpatoxy “if it tends to disprove a fact in issue which is material to guilt or punishment.” State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 (1986); see Trombetta, 467 U.S. at 485 (exculpatory evidence raises reasonable doubt as to the defendant’s guilt). Material evidence must possess apparent exculpatory value before destruction and must be of such a nature that a defendant is unable to obtain comparable evidence by other reasonable and available means. 467 U.S. at 489.
We are not unsympathetic to Johnson’s position that being just over the legal limit for driving under the influence of alcohol makes this a more difficult than usual case. However, we believe the legislature contemplated these close cases in allowing a right for independent analysis. A factor weighing against Johnson’s argument is that under the informed consent statutes, the licensee is advised he or she has the right to secure additional alcohol testing on his or her own. K.S.A. 2009 Supp. 8-1001(k)(10). There is no contention raised by either side that Johnson requested an independent test.
We again find no deprivation of Johnson’s constitutional rights. The United States Supreme Court has disagreed with Johnson’s argument. See Trombetta, 467 U.S. 479. Johnson is asking us to establish a sliding scale of due process deprivation based on the severity of a driver’s intoxication. We decline Johnson’s invitation and instead decide there is no evidence that the destroyed breath sample was exculpatory outside of wishful thinking on Johnson’s part. We agree with the district court’s analysis and find substantial •evidence supports the court’s decision.
Next, Johnson argues there was insufficient evidence for Officer Kooser to request a breath test and his motion to suppress the results should have been granted. Johnson also claims that in light of all the preparation and the detail that went into the DUI checkpoint, a warrantless search was unreasonable.
In a DUI case, the officer’s factual basis for concluding that the defendant was intoxicated at the time of arrest determines whether the officer had probable cause to arrest. City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997). “Thus, an appellate court’s review of the trial court’s determination of whether an officer had probable cause to make a warrantless arrest in a DUI case is a mixed question of law and fact.” 262 Kan. at 203. Here, the facts are not in dispute; therefore, whether to suppress the evidence obtained after the arrest is a question of law over which this court has unlimited review. See State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). “Probable cause to arrest is that quantum of evidence that would lead a reasonably prudent police officer to believe that guilt is more than a mere possibility.” Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998) (citing City of Dodge City, 262 Kan. at 203-04).
Officer Kooser observed Johnson nearly crash as he merged for the DUI check lane and then appear to be surprised by the traffic cones. Officer Kooser noted an odor of alcohol, Johnson admitted he had been drinking, his eyes were blood shot and watery, and he exhibited multiple indications of intoxication in the walk and turn and the one-legged tests. These facts are not unlike those in Campbell, 25 Kan. App. 2d 430. Johnson was not severely over the legal limit when he failed the breath test. Johnson relies heavily on the fact that if you examine the video there is litde evidence to show he was impaired.
A slightly intoxicated driver is not going to demonstrate the exaggerated actions of a severely drunk driver. The slightly intoxicated driver is only going to have minor imperfections in his or her performance, but that does not negate the failure of the test. No matter how well the driver can walk a straight line or balance on one foot, if the driver’s blood-alcohol concentration is .08 or higher, he or she can no longer legally drive a vehicle in the state of Kansas. Accordingly, we have no difficulty in finding that the officer could reasonably have concluded that guilt was more than a mere possibility. Thus, under these facts, the officer had probable cause to arrest.
We also reject Johnson’s arguments challenging the constitutionality of a warrantless breath test in a sobriety checkpoint. Sobriety checkpoints have been found to be constitutional under the Fourth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights § 15. See Davis v. Kansas Dept. of Revenue, 252 Kan. 224, Syl. ¶ 1, 843 P.2d 260 (1992).
Given the great lengths the officers took in setting up the checkpoint, Johnson argues a magistrate judge could have been ready and available for the period during which the check point was conducted. He contends the officers could have used the vehicle computers or instant messaging capabilities to “take the probable cause decision from the hands of the arresting officer and place it in the hands of a neutral and detached magistrate as required by the constitution.” While an interesting suggestion, we see no need for an “instant” magistrate. A reviewing court has sufficient tools even at a later time to make a valid judgment. While advances in technology could lead to something like that being suggested by Johnson, we do not see it as necessary now.
Johnson attempts to circumvent the principles of the Kansas implied consent law. We see no evidence the Kansas law is headed in the direction of Johnson’s argument. See K.S.A. 2009 Supp. 8-1001; Cuthbertson v. Kansas Dept. of Revenue, 42 Kan. App. 2d 1049, 1055, 220 P.3d 379 (2009) (“The purpose of the implied consent law is to coerce submission to chemical testing by the threat of statutory penalties of license suspension and the admission into evidence in a DUI proceeding of the fact of refusal.”) (citing Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, Syl. ¶ 1, 888 P.2d 832 [1995]). As long as the defendant has the benefit of judicial review and independent blood testing, we presently need nothing further in the way of constitutional protection for accused drivers.
Next, Johnson raises a very brief argument that the trial court abused its discretion in allowing the State to produce evidence of the breath test where there were serious concerns with the temperature of the simulator solution in the Intoxilyzer 5000.
K.S.A. 2009 Supp. 8-1002(a)(3) requires that an officer certify for any breath-test failure that the testing equipment was properly certified by Kansas Department of Health and Environment (KDHE), that the equipment operator was certified by KDHE, and that the testing procedures were done in accordance with KDHE requirements. Citing this statute, the Kansas Supreme Court has noted that “[t]he legislature has enacted provisions . . . in which breath tests are directed to be conducted under the KDHE protocols.” Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 88-89, 11 P.3d 1165 (2000). When testimony establishes that the requirements referenced in K.S.A. 2009 Supp. 8-1002(a)(3) have been met, i.e., that both the machine and its operator were certified by KDHE and the testing was conducted in accordance with KDHE’s testing protocols, the test result is admissible. City of Overland Park v. Cunningham, 253 Kan. 765, 772-73, 861 P.2d 1316 (1993).
According to this clear fine of cases, the legislature has deemed alcohol breath tests admissible if the certification requirements are met and if the machine was operated in the manner provided by KDHE. A licensee can challenge, factually, whether the certifications were proper and whether the machine was operated in the manner required by the operations manual. Thus, a licensee can raise inconsistencies in the certification records or whether the testing officer actually followed all operational protocols. However, it is legislatively established that the results are admissible as a matter of law when the requisite foundation is laid under K.S.A. 2009 Supp. 8-1002(a)(3). Such a presumption is appropriate.
Officer Kooser testified that the temperature of the solution in the Intoxilyzer was 34 degrees Celsius. He testified the temperature was within the acceptable range of 33.8 degrees and 34.2 degrees Celsius as required by the KDHE protocol. Officer Kooser was authorized, trained, and certified to operate the Intoxilyzer 5000. Johnson argues the State failed to ascertain whether the thermometer used to ascertain the temperature was accurate. We agree with the trial court that Johnson’s claim goes to the weight of the evidence, not the admissibility. At some point the foundation is sufficient. Should we follow Johnson’s argument, we might then be asked that the third thermometer also be certified. This could go on forever.
Last, Johnson argues the trial court violated his right of confrontation by admitting certification documents of the sheriff s department, the administering deputy, and KDHE regulations relating to the Intoxilyzer 5000 without calling the witnesses who handled the calibration and certification process.
Johnson recognizes this issue has been decided directly against him in State v. Dukes, 38 Kan. App. 2d 958, Syl. ¶ 1, 174 P.3d 914 (2008), aff'd 290 Kan. 485, 231 P.3d 558 (2010):
“Documents showing certification or calibration of a breath-test machine or certification of the machine operator do not constitute testimonial evidence under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and, if otherwise admissible, may be offered without an accompanying witness for cross-examination.”
We find the analysis in Dukes to be sound and hold that to be our position absent alternative direction from the Kansas Supreme Court. See Dukes, 290 Kan. at 488-89 (issue not preserved). Johnson encourages us to grant his claim based on the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009). We do not find the facts in Melendez-Diaz to be comparable, where the evidence there was a certificate of a state laboratory analysis stating that drugs seized by the police were cocaine of a certain quantity. That dealt with an element of the crime and not just the certification of a machine.
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Rulon, C.J.:
Claimant, Jonathan Z. Tyler, appeals the Kansas Division of Workers Compensation Board’s (Board) decision limiting his compensation to functional impairment and denying Claimant work disability compensation. Claimant contends the Board erred in denying compensation based on the finding there was no nexus between his injury and subsequent wage loss. According to Claimant, no such nexus is required under the rules of statutory construction applied by our Supreme Court in Casco v. Armour-Swift Eckrich, 283 Kan. 508, 154 P.3d 494 (2007), and its progeny.
We reverse and remand with directions.
The facts of this case are not in dispute. Tyler is employed at the Goodyear tire plant in Topeka. On January 29, 2007, Claimant was preparing to hoist a tire mold out of the curing vessel when a chain hoist fell from above striking him in the head. The falling hoist knocked Claimant to the ground and he was taken to the hospital. Claimant had a cut on the top of his head and suffered neck pain as a result of the accident.
Claimant was treated and returned to work the following day. Claimant continued to see a physician at Goodyear until he was referred to another physician, Dr. Michael Smith, because of continued pain and discomfort. Dr. Smith ordered an MRI, which indicated Claimant had bulging disks in his neck. On September 25, 2007, Dr. Smith released Claimant at maximum medical improvement.
Claimant maintained his position at Goodyear while undergoing treatment for his injury after his physician’s release. He was under no direct work restrictions. Although his neck pain did cause some difficulty, Claimant performed his normal job duties.
Claimant’s pay remained the same until July 2008 when, as the result of a new union contract, Goodyear restructured its production week to increase production. This contract was nationally negotiated and affected all union Goodyear employees. As a result of this restructuring, Goodyear added an additional shift and changed the way workers were offered overtime work. After this restructuring, Claimant’s workweek was reduced from 7 to 5 days, and his average weekly pay fell from $1,654 to $940.57. Claimant stated much of his wage ioss was due to reduced overtime, even though he did not always accept overtime when such work was available.
Claimant filed an application for workers compensation on January 10, 2008. Independent medical examiner, Dr. Joseph Huston, rated Claimant’s impairment at 6%, with 4% preexisting, and found Claimant required no work restrictions. Claimant’s medical examiner, Dr. Daniel Zimmerman, found Claimant had range of motion limitations in his neck and determined Claimant had an 11% permanent partial impairment as a result of the accident. Zimmerman noted Claimant reported a 40% task loss based upon his recommendation that Claimant lift 50 pounds occasionally and only 25 pounds frequently. A medical evaluator hired by Goodyear found Claimant had no permanent impairment.
Subsequently the administrative law judge (ALJ) first found Claimant’s functional impairment to be 6.5%. The ALJ further found Claimant’s wages dropped dramatically as a result of Goodyear’s addition of a new shift and redistribution of overtime, and Claimant’s injury bore no direct relationship to that wage decline. However, the ALJ found “the right to work disability is not necessarily triggered by a causative link between the injury and the loss of wages.” The ALJ found Kansas statutory law did not require a causal connection between the injury and wage loss and, because Claimant had suffered a wage loss greater than 10% Claimant was eligible to receive work disability compensation. Furthermore, the ALJ found Claimant’s permanent partial disability to be 41.5% and awarded Claimant work disability compensation at the rate of $483 per week for 172.23 weeks for a total award of $83,187.09.
Goodyear filed an application for review by the Board and argued the ALJ erred in granting Claimant work disability because his wage loss was caused by Goodyear’s union contract, not his injury. Citing Hernandez v. Monfort, Inc., 30 Kan. App. 2d 309, 41 P.3d 886, rev. denied 274 Kan. 1112 (2002), Goodyear argued there must be a causal nexus between an injury and a loss in pay for that injury to be compensable.
The Board agreed with Goodyear and found Claimant was not eligible for work disability. The Board noted K.S.A. 44-510e does not require a direct causal connection between injury and wage loss; however, the nexus requirement expressed in Hernandez had not been expressly overruled. Noting the purpose of the Workers Compensation Act is to compensate workers for their injuries, not for any wage loss, the Board reversed the award of work disability and granted Claimant 26.98 weeks of permanent partial disability compensation at $483 per week for a total award of $13,031.34 for a 6.5% functional disability.
Claimant filed a timely petition for judicial review with this court.
Claimant argues on appeal the plain and unambiguous language of K.S.A. 44-510e does not require a causal relationship between an injury and wage loss and Casco effectively overruled Hernandez’s nexus requirement. Goodyear maintains the Board properly applied Hernandez and an award of work disability would run counter to the intent of the Workers Compensation Act in this case.
When the facts in a workers compensation case are not disputed, the question is whether the Board correctly applied those facts to the law, which the appellate court reviews de novo. Martinez v. Excel Corp., 32 Kan. App. 2d 139, 142, 79 P.3d 230 (2003). Furthermore, the sole issue in this case involves the interpretation of the language of K.S.A. 44-510e, which is a question of law. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Under the doctrine of operative construction, the Board’s interpretation of the law is entitled to judicial deference. If there is a rational basis for the Board’s interpretation, the Board should be affirmed upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. Casco, 283 Kan. at 521; see also Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007) (relying on doctrine of operative construction in context of question of law on undisputed facts). The party challenging the Board’s interpretation bears the burden of proving its invalidity. Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004).
The calculation of compensation for permanent partial disabilities under the Workers Compensation Act is governed by K.S.A. 44-510e. In relevant part, K.S.A. 44-5l0e(a) states:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. ... An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”
Claimant contends the rules of statutory construction announced by our Supreme Court in Casco and Graham should be applied here. According to Claimant because there is no language requiring a relationship between an injury and wage loss in the above statute, no such requirement should be read into the statute. Analysis of this argument must therefore begin with an overview of the rules expressed in Casco, Graham, and their progeny.
In Casco, our Supreme Court overturned the long-standing parallel injury rule in workers compensation cases that was established in Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931). Casco, 283 Kan. at 527. The court found the Honn court considered statutory language which was specifically applicable to permanent total disability and erroneously applied such interpretation to permanent partial disability. 283 Kan. at 525. Applying the canon of statutory construction “courts cannot add something to a statute that is not readily found in the statute,” the Casco court overturned Honn. 283 Kan. at 525, 527.
Our Supreme Court applied a similar canon of construction in the analogous circumstance presented by Graham,. The Graham court reversed this court’s holding that a physician’s testimony was required to support a finding of wage loss for purposes of calculating wage loss under K.S.A. 44-510e(a). According to Graham, while a physician’s testimony was required under plain statutory language to prove task loss, the statute plainly established wage loss was calculated simply by comparing a Claimant’s pre and postinjury wages. The Graham court concluded under the plain language of the statute there was no requirement wage loss be supported by a physician’s testimony. 284 Kan. at 554-57.
Recently our Supreme Court has continued the course set in Casco and Graham in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009). The Bergstrom court overturned the requirement, first expressed in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), that a workers compensation Claimant must make a good-faith effort to find alternate employment after an injury. Bergstrom, 289 Kan. at 610. In Foulk the court concluded an implied good-faith requirement was necessary to preserve the legislature’s presumed intent that able workers should work and not be compensated for sitting idle. Foulk, 20 Kan. App. 2d at 284. The Bergstrom court concluded there was no such good-faith requirement in the plain language of K.S.A. 44-510e(a). Bergstrom, 289 Kan. at 609. Applying Graham, the Bergstrom court held Foulk and its progeny suffered from the same defect in statutory interpretation by failing to “give effect only to express statutory language, rather than spec ulating on what the law should or should not be, and [adding] something to a statute not readily found in it.” 289 Kan. at 610.
Here, while the Board’s reasoning is arguably sound regarding the purpose of die Workers Compensation Act, the Board’s decision nonetheless is foreclosed by our Supreme Court’s rulings in Casco, Graham, and Bergstrom. These cases make a number of points clear:
• K.S.A. 44-510e(a) is a simple mathematical calculation;
• Judicial notions regarding the legislature’s intent in the enactment of K.S.A. 44-510e(a) are not favored; and
• Judicial blacksmithing will be rejected even if such judicial interpretations have been judicially implied to further the perceived legislative intent.
Our reading of Casco, Graham, and Bergstrom suggests this court’s decision in Hernandez is no longer good law. Our Supreme Court’s direction in Bergstrom could not be clearer. Absent a specific statutoiy provision requiring a nexus between the wage loss and the injury, this court is not to read into the statute such a requirement. 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).
Reversed and remanded to the Workers Compensation Board with directions to reinstate the ALJ’s award of work disability. | [
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Pierron, J.:
The Boeing Company and Insurance Company of the State of Pennsylvania (Boeing) appeal the March 30, 2009, order of the Workers Compensation Board (Board). Boeing argues that the Board erred in ordering a final award of $106,339.65 in medical compensation to Karen C. Roles. In addition, Boeing argues that the Board erred in awarding Roles post-award medical benefits for expenses incurred outside of the 6-month relation back period delineated in K.S.A. 2009 Supp. 44-510k.
Roles began working for Boeing on January 21, 1975. While working for Boeing, Roles has had a long history of respiratory problems. In 1979, she was diagnosed with bronchiectasis. Surgery was required, and Roles underwent a left lower lobectomy. Despite the surgery, Roles required numerous inpatient and outpatient medical treatments for respiratory problems throughout the 1980’s and 1990’s. As a result of these continuing problems, Roles was taken off work from 1991-1996.
On February 22, 1995, Roles settled a claim for workers compensation benefits against Boeing. As a result of this settlement, premised upon an allegation of occupationally induced asthma, Boeing paid Roles a lump sum of $61,500, as well as $63,494 in temporary total disability benefits (228 weeks). In addition, Boeing paid Roles’ medical expenses in the amount of $76,680.34. Under the terms of the settlement agreement, Roles waived her right to any future medical compensation.
While Roles was off work, her respiratory symptoms improved. As a consequence of these improvements, she was released to work in a smoke-, chemical-, and odor-free environment not involving physical labor. On May 10, 1996, Roles returned to work with Boeing as a lead person in Industrial Park Building-3 (IPB-3).
In 1997, Roles moved to a different area of IPB-3, where she was exposed to chemicals contained in cleaning solvents and fumes from mini-riveters. In 2000, she was moved to Industrial Park Building-1 (IPB-1), which lacked air conditioning and was overcrowded with employees and machines.
In 1999, Roles started developing upper respiratory problems, with irritation in her throat and upper chest area. After seeking medical treatment, Roles was tentatively diagnosed with vocal cord dysfunction as well as asthma, gastroesophageal reflux, and rhino sinusitis. Roles continued to receive medical treatment until at least 2001.
On June 30, 2001, Roles took a medical leave of absence from Boeing to obtain carpal tunnel release surgery. She returned on July 16, 2001, and worked until July 18, 2001. On July 18, 2001, Roles again began having breathing problems. Roles’ last day of work was July 18, 2001. She was unable to return because of her respiratory problems. After July 18, 2001, Roles continued to require hospitalization and medical treatment for these respiratory problems. Ultimately, she was diagnosed with interstitial lung disease and has significant fibrosis of the lungs. As a consequence, Roles is completely disabled from work and has lung function of approximately 20%.
In September 2001, Roles filed an application for a preliminary hearing to determine the compensability of her exposure to chemicals and contaminants in her work environment at Boeing as of July 16, 2001, and each day worked thereafter. In April 2002, the administrative law judge (ALJ) held a prehminary hearing to consider Roles’ claim for workers compensation benefits. The ALJ denied Roles’ claim after finding that her vocal cord dysfunction was a new injury that arose after her 1995 setdement with Boeing but that the injury was not compensable because there was no toxological link between Roles’ injury and her work environment. After the denial of her claim, Roles timely filed an application for review.
In October 2002, the Board reversed the ALJ’s preliminaiy hearing order. The Board agreed that Roles suffered a new and separate injury of vocal cord dysfunction after her February 1995 settlement agreement. However, contrary to the ALJ, the Board found that the vocal cord dysfunction was caused by Roles’ exposure to chemical irritants in the workplace. As a consequence, the Board ordered Boeing to “pay as authorized medical treatment all reasonable and necessary medical expenses, in accordance with the medical fee schedule, incurred since July 18, 2001, for the treatment of Roles’ work-related respiratory injuries.” Pursuant to the Board’s preliminary order, Boeing paid Roles’ medical expenses in the amount of $106,339.65.
After lengthy prehminary proceedings, the ALJ held a final award hearing in November 2005. At the hearing, Roles testified regarding her employment with Boeing as well as her medical history. However, she never testified or introduced evidence regarding the bills submitted under the prehminary hearing order or their relation to her ihness. Deposition testimony of Dr. Allen J. Parmet, who independently evaluated Roles’ medical records, also confirmed that a few medical expenses submitted for payment by Boeing were unrelated to her occupational exposure at Boeing.
On October 30, 2006, the ALJ entered its final award finding that Roles had suffered a new chemical exposure through her last day worked at Boeing, July 18, 2001. As a result of that exposure, the ALJ found that she was permanently and totally disabled. Although the ALJ’s award noted that Boeing had paid Roles’ medical expenses in the amount of $106,339.65, for some unknown reason the ALJ made no further ruling regarding the compensability of these expenses. As to Roles’ eligibility for future medical expenses, the ALJ ordered that Roles could only be awarded future medical benefits “upon proper application to and approval by the Director of the Division of Workers Compensation.”
After the ALJ’s final award, both Roles and Boeing timely filed applications for review to the Board. In April 2007, the Board issued an order confirming that Roles was permanently and totally disabled from any type of employment. As to the compensability of Roles’ medical expenses, the Board remanded the matter to the ALJ for consideration of “whether the incurred medical bills are related to any chemical exposure, and more specifically, whether the bills were reasonable and necessary to cure and reheve claimant from the effects of her injuries suffered while in respondent’s employment.”
Pursuant to the Board’s directive, the ALJ held a remand hearing in July 2007. Although the Board’s order only permitted the ALJ to consider the record presented at the final award hearing, the ALJ permitted Roles, over Boeing’s objection, to testify regarding tire submitted medical expenses.
During this hearing, Roles testified that most of the bills submitted to Boeing for payment were related to her lung and respiratory exposure. However, she had not brought the medical bills to the hearing for examination and, therefore, could not conclusively testify that the bills submitted to Boeing did not include bills for unrelated medical expenses. During the course of her testimony, Roles admitted with certainty that at least one bill, a charge for a pap smear, was unrelated to her occupational exposure and agreed to remove it from consideration. At the end of die remand hearing, the ALJ took the matter under advisement but never issued a final order regarding the compensability of these medical bills. We do not know why.
On July 6, 2007, shortly after the remand hearing, Roles filed an application for post-award medical expenses. The application sought reimbursement for post-award medical treatment incurred after Roles’ February 1, 2006, terminal date (the deadline after which her medical expenses would no longer be considered for purposes of the final award hearing).
In November 2007, the parties filed a joint stipulation for the purpose of the post-award medical hearing. In the stipulation, the parties agreed solely for the purposes of the November 29, 2007, post-award medical hearing that if the ALJ found Roles had properly submitted medical expenses within the requisite time period, then the submitted expenses were reasonable and customary charges related to Roles’ work-related occupational disease. As a consequence of the stipulation, the only issue for consideration by the ALJ was whether Roles timely submitted her application for post-award medicals within the 6-month relation back period.
On June 2, 2008, the ALJ denied Roles’ application for post-award medical compensation, finding that it was not timely filed because all of the bills contained in the post-award record related back more than 6 months from the time of filing. In addition, the ALJ also made findings in relation to the issues presented at the remand hearing.
On March 30, 2009, the Board issued an order reviewing the ALJ’s June 2, 2008, post-award medical award. In the order, the Board considered the following issues: (1) Did the ALJ err in finding that the $106,339.65 in previously paid medical benefits were necessary and reasonable based on the evidence in the record? and (2) Did the ALJ err in denying payment of the post-award medical expenses contained in the parties’ stipulation?
As to the first of these issues (relating to the $106,339.65 in previously paid medical benefits), the Board found that although the ALJ failed to issue a specific order on these medical expenses, judicial economy required that the Board issue a decision without an additional remand. As a consequence, the Board, citing K.S.A. 44-510j, found that although Boeing argued it was forced to pay many of the bills “under the gun” by threats of civil penalties and statutory interest, the fact that many of the medical expenses paid by Boeing were reduced from the original charges (from $146,234.85 to $106,339.65) meant that Boeing had sufficient time for negotiations. By extension, the Board reasoned that Boeing also had time to challenge the compensability of the medical bills. Consequently, the Board found that Boeing’s failure to contest the bills under the statutory framework delineated in K.S.A. 44-5lOj made its argument disingenuous. For this reason, the Board affirmed the ALJ’s order.
As for the second issue — the compensability of the expenses contained in the post-award medical award — the Board found that the ALJ erred in denying Roles’ application for post-award medical expenses. Deferring to K.S.A. 2009 Supp. 44-510k, the Board found that although the statute prohibits a post-award medical award for expenses incurred more than 6 months before the filing of the post-award application, Roles was not applying for medical treatment. Instead, she was seeking payment for medical treatment provided under the supervision of her authorized treating physician. Therefore, the Board found that K.S.A. 2009 Supp. 44-510k did not impose a 6-month bar for medical treatment with the authorized treating physician. After making this finding, the Board ordered Boeing to pay the bills delineated in the parties’ stipulation with two exceptions.
After the Board’s March 30, 2009, order, Boeing timely filed a petition for judicial review.
Boeing’s first argument on appeal is that the Board erred in declining to reimburse Boeing the $106,339.65 in medical compensation paid under the preliminary order. To this end, Boeing advances two arguments. First, Boeing argues that Roles failed to meet her burden in proving her entitlement to the requested medical payments. Second, Boeing argues that the Board erred in interpreting K.S.A. 44-510j as precluding the subsequent reimbursement of medical bills not initially disputed to the medical provider.
Under the Workers Compensation Act (Act), if an employee suffers personal injury by accident arising out of and in the course of employment, the employer shall be liable to pay compensation to the employee in accordance with the statutory framework. K.S.A. 2009 Supp. 44-501(a); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005). This includes provision of “services of a health care provider, and such medical, surgical and hospital treatment... as may be reasonably necessary to cure and reheve the employee from the effects of the injury.” K.S.A. 2009 Supp. 44-510h(a).
In order to fall within these statutory protections, the burden of proof lies with the claimant to establish his or her right to compensation by proving various conditions on which that right de pends. K.S.A. 2009 Supp. 44-501(a); Schmidtlien Electric, 278 Kan. at 819-20. “ ‘Burden of proof means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party’s position on an issue is more probably true than not true on the basis of the whole record.” K.S.A. 2009 Supp. 44-508(g). “Once the claimant has met his or her burden of proving a right to compensation, the employer has the burden of proving relief from that liability through [a statutory defense or exception].” Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004).
In determining whether the parties have sustained their requisite burdens of proof, an appellate court reviews the Board’s determinations of facts to verify if such findings are “supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as whole, which includes the agency record for judicial review.” K.S.A. 2009 Supp. 77-621(c)(7). Within this context:
“ ‘[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 fight 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, compiled 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.” K.S.A. 2009 Supp. 77-621(d).
Although the statute does not define substantial evidence, case law has long held that it is “such evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009). This new evidentiary standard of review is similar to the old workers compensation standard of review, except that K.S.A. 2009 Supp. 77-621(d) now permits us to look more completely at the record in determining whether substantial evidence supports the agency decision, including evidence both supporting and detracting from an agency’s findings. 42 Kan. App. 2d at 362-63. As always, the party challenging the agency action bears the burden of proving its invalidity. K.S.A. 2009 Supp. 77-621(a).
In order to invoke the compensation available under the Act, an employee must file an application for a prehminary hearing in accordance with K.S.A. 44-534a. During the prehminary hearing, the ALJ will summarily determine whether medical treatment should be furnished to the employee and whether the employee is entitled to payment of temporary total disability payments. K.S.A. 44-534a. The findings from this prehminary hearing are subject to a full hearing on the claim. K.S.A. 44-534a(a)(2).
When authorized by a prehminary award, a health care provider often then bills an employer and its insurance carrier for die medical costs of treating an injured employee. If the employer challenges the compensability of any of the medical bihs prehminary paid to medical providers, it may seek subsequent reimbursement from the workers compensation fund:
“If compensation in the form of medical benefits or temporary total disability benefits has been paid by the employer or the employer’s insurance carrier either voluntarily or pursuant to an award entered under this section and, upon a full hearing on the claim, the amount of compensation to which the employee is entitled is found to be less than the amount of compensation paid or is totally disallowed, the employer and the employer’s insurance carrier shall be reimbursed from the workers compensation fund established in K.S.A. 44-566a and amendments thereto, for all amounts of compensation so paid which are in excess of the amount of compensation the employee is entitled to less any amount deducted from additional disability benefits due the employee pursuant to subsection (c) of K.S.A. 44-525, and amendments thereto, as determined in the full hearing on the claim.” K.S.A. 44-534a(b).
Therefore, at the prehminary hearing stage, the Act “provides no effective method of litigating the question of whether the medical expenses being billed and paid are necessary and reasonable until after the claim has been disposed of.” Beisel v. Boeing Co., 23 Kan. App. 2d 572, 575, 932 P.2d 1050 (1997). This framework is designed “to assure that in the first instance treatment for an injured worker takes priority while the claim is in progress.” 23 Kan. App. 2d at 575. The preliminary hearing framework “temporarily secure[s] prompt compensation while the parties proceed with a more thorough exposition of the evidence. [Citation omit ted.]” Butera v. Fluor Daniel Constr. Corp., 28 Kan. App. 2d 542, 544, 18 P.3d 278, rev. denied 271 Kan. 1035 (2001).
The summary and preliminary nature of this framework sometimes requires an employer to pay medical benefits that are not related to an employee’s occupational injury. In this scenario, the Workers Compensation Fund (Fund) is statutorily required to reimburse the employer for medical benefits paid “ ‘in excess of the amount of compensation the employee is entitled to as determined in the full hearing on the claim.’ ” Beisel, 23 Kan. App. 2d at 575 (quoting K.S.A. 44-534a[b]). Stated another way, under K.S.A. 44-534a(b), the Fund is required to reimburse an employer for medical benefits provided to an employee that are deemed to be unreasonable or unnecessary to treatment of the occupational injury as determined at a full hearing on the claim. 23 Kan. App. 2d at 575-76. Within this context, a full hearing “means an exploration of the issues resulting in the ultimate decision.” Schmidtlien, 278 Kan. at 825. This is normally the hearing held after the prefiminary hearing. See Sawyer v. Oldham’s Farm Sausage Co., 246 Kan. 327, 333, 787 P.2d 697 (1990).
Although it is clear that an employer is entitled to reimbursement for payment of unreasonable or unnecessary medical compensation, the procedure for recovering such wrongfully paid compensation is less settled. In Beisel, this court held that until the Act established a system of utilization review for medical charges, K.S.A. 44-534a was the only procedure for an employer challenging the compensability of an employee’s medical expenses:
“In summary, we have an employer and its insurance carrier who appear to have the absolute right to be reimbursed for unnecessary medical expenditures. K.S.A. 44-534a at present provides the only practical method by which this issue can be tried and put to rest. The procedure the Board concluded should have been used does not exist. Under the circumstances, we hold that 44-534a is controlling and may be utilized by an employer and its insurance carrier to recover medical benefits paid on behalf of a claimant which have been determined to be unnecessary and unreasonable. The Board’s order to the contrary is reversed.” Beisel, 23 Kan. App. 2d at 579.
Beisel was decided in 1997. The Act still contains no utilization procedure for challenging provided medical benefits. Although the legislature has passed an amended statute, K.S.A. 44-510j(d), which outlines a utilization framework, the statute still awaits the workers compensation director s efforts to “develop and implement, or contract with a qualified entity to develop and implement, utilization review procedures relating to the services rendered by providers and facility, which services are paid for in whole or in part pursuant to the workers compensation act.” Because the needed utilization review procedures have still not been made workable, K.S.A. 44-534a(b) still provides the sole means by which an employer can seek reimbursement for excess payments of compensation. We do not know why this has not been done. See Kimber v. U.S.D. No. 418, 24 Kan. App. 2d 280, 283, 944 P.2d 169, rev. denied 263 Kan. 886 (1997); Beisel, 23 Kan. App. 2d at 579. Within this framework, the employer is entitled to a full hearing on the merits to challenge the provided medical compensation paid pursuant to a prehminary order. See K.S.A. 44-534a(b); Schmidtlien, 278 Kan. at 825; Sawyer, 246 Kan. at 333.
After the prehminary hearing stage, the determination of the employee’s rights under the Act proceeds to a final evidentiary hearing. K.S.A. 2009 Supp. 44-523. Prior to this hearing, the ALJ is required to set á terminal date for the parties to submit evidence in support of their respective positions. K.S.A. 2009 Supp. 44-523(b). Any evidence submitted after this terminal date cannot be considered as part of the final evidentiary record. See Hargett v W.A. Dunbar, Docket No. 173,294, 1998 WL 100151, at *1-2 (Kan. Work. Comp. App. Bd. 1998); Waterhouse v. Pechin Construction, Inc., Docket No. 172,404, 1997 WL 762964, at *1 (Kan. Work. Comp. App. Bd. 1997).
In the case at bar, Roles filed an application for preliminary hearing in September 2001. Ultimately, the Board found her injury compensable and ordered Boeing to pay all of her reasonable and necessary medical expenses. Under this order, Boeing paid medical expenses in the amount of $106,339.65.
At the first full hearing after the prehminary hearing (the final evidentiary award hearing), Boeing denied that Roles suffered an accident out of the course of her employment and requested reimbursement for the medical expenses paid under the preliminary hearing order. At this final award hearing, Roles testified regarding her employment with Boeing as well as her medical history. However, she never testified or introduced evidence regarding the submitted medical bills or their relation to her illness. In addition, Dr. Allen J. Parmet, who independently evaluated Roles’ medical records, testified that certain medical expenses submitted for payment by Boeing were unrelated to her occupational exposure at Boeing. As a result of the lack of conclusive evidence relating to the necessity and compensability of the submitted medical expenses, Boeing objected to being ordered to pay such expenses.
On October 30, 2006, the ALJ entered its final award. In the award, the ALJ found that Roles had suffered a new chemical exposure through her last day worked at Boeing (July 18, 2001). As a result of that exposure, the ALJ found that Roles was permanently and totally disabled and awarded her compensation accordingly. Although the ALJ’s award noted that Boeing paid Roles’ medical expenses in the amount of $106,339.65, it made no further ruling regarding the compensability of these expenses. In April 2007, the Board remanded the issue of the compensability of Roles’ medical expenses back to the ALJ for consideration of the evidentiary record:
“Respondent disputes claimant’s entitlement to past and current medical benefits. The Award of the ALJ fails to discuss these issues, even though respondent raised the issues at the regular hearing with the admission of an exhibit showing a total paid for past medical treatment to be $106,339.65 and memorialized the disputed issues in respondent’s submission letter, dated May 12, 2006, filed with the Kansas Division of Workers Compensation on May 12, 2006. Respondent disputes that claimant has carried her burden of proof of entitlement to payment of specific medical bills, whether the incurred medical bills are related to any chemical exposure, and more specifically, whether the bills were reasonable and necessary to cure and relieve claimant from the effects of her injuries suffered while in respondent’s employment. The Board is limited under K.S.A. 2006 Supp. 44-551 to reviewing issues presented to and decided by an administrative law judge. As the ALJ failed to address these issues in the Award, a remand of the matter to the ALJ for a determination of these medically related issues is necessary. The Board, therefore, remands this matter to the ALJ for a determination of the necessity and reasonableness of the medically related expenses as claimed in this matter and based on the exhibits and evidence contained in the record.”
Pursuant to the Board’s directive, the ALJ held a remand hearing in July 2007 to consider the compensability of Roles’ medical expenses based on a review of the exhibits and evidence contained in the final evidentiary record. Although the Board’s order only permitted the ALJ to consider the record presented at the final award hearing, the ALJ permitted Roles, over Boeing’s objection, to testify regarding the submitted medical expenses. This evidence was taken after Roles’ terminal date of February 2006.
At the remand hearing, Roles testified that most of the bills submitted to Boeing for payment were related to her lung and respiratory exposure. However, Roles did not bring the medical bills to the hearing for examination and, therefore, could not conclusively testify that the bills submitted to Boeing did not include bills for unrelated medical expenses. During the course of her testimony, Roles admitted with certainty that at least one bill, a charge for a pap smear, was unrelated to her occupational exposure and agreed to remove it from consideration. At die end of die remand hearing, the ALJ took the matter under advisement but never issued a final order regarding the issue of medical expense compensability. Later, during the post-award hearing, the ALJ found that Roles met her burden in providing that “the medical treatment she has incurred [is] necessary and reasonable based on the evidence contained in the record and finds no reason to reimburse Respondent for any of the $106,339.65 previously paid in this matter.”
After the ALJ’s decision, both Boeing and Roles filed timely applications for review to the Board. The Board reviewed the ALJ’s decision, first considering whether the ALJ erred in finding that the $106,339.65 in previously paid medical benefits were necessary and reasonable based on the evidentiary record. In doing so, the Board noted that although the ALJ failed to issue a specific order on these medical expenses, judicial economy required that the Board issue a decision without an additional remand. In doing so, the Board never considered whether Roles fulfilled her burden in proving the compensability of her medical expenses, instead finding that Boeing’s failure to challenge the medical bills within the framework delineated in K.S.A. 44-510j barred its subsequent re quest for reimbursement. Therefore, the Board affirmed the ALJ’s order barring Boeing’s reimbursement of the $106,339.65 in previously paid medical benefits.
Under K.S.A. 44-534a(b), Boeing was entitled to a full hearing after the preliminary hearing to litigate the issue of whether the $106,339.65 it paid for Roles’ medical expenses was subject to reimbursement from the Fund. If a portion of the medical benefits paid were unnecessaiy and not related to Roles’ occupational injury, Boeing was not responsible for their payment under the Act. Roles had the burden of proving her entitlement to the medical benefits paid by Boeing under the preliminary order. See K.S.A. 2009 Supp. 44-501(a); Schmidtlien Electric, 278 Kan. at 819-20.
Despite Boeing’s continual objection to the compensability of Roles’ medical expenses, the ALJ never inquired into the reasonableness and relation of these expenses to Roles’ occupational injury. Even after the Board remanded the case to the ALJ for a hearing on this matter, the ALJ failed to enter a final order on this issue, instead combining the remand hearing with Roles’ post-award medical hearing. At the post-award medical hearing, the ALJ impermissibly considered evidence beyond the case’s terminal date (Roles’ testimony) and thereby outside of the final award evidentiary record. However, even after considering this improper evidence, the ALJ still failed to require Roles to introduce into evidence or explain the medical bills in controversy.
In the Board’s final judgment in this case, the Board recognized that the ALJ never properly considered the compensability of the medical expenses paid under the preliminary hearing order. Nonetheless, the Board never examined the sufficiency of the evidence in the record relating to these medical expenses. Instead, the Board summarily denied Boeing’s request for reimbursement on the premise that Boeing’s failure to dispute the bills with the medical providers barred its subsequent request for reimbursement.
At every stage of the administrative proceedings in this case, the ALJ and the Board failed to require Roles to produce evidence of the compensability of medical expenses paid by Boeing under the preliminary order. Boeing never received its required full hearing on the issue. Because it did not, this court cannot inquire as to whether Roles sustained her burden of proof on the compensability issue. Consequently, we cannot consider whether substantial evidence supports the Board’s findings. Therefore, we must either remand the case to the Board to make adequate findings on the compensability of these expenses or determine based upon the record whether Roles fulfilled her burden in proving her entitlement to the medical compensation paid under the preliminary hearing order.
However, prior to doing so, we will first consider whether Boeing’s failure to challenge the bills in accordance with K.S.A. 44-510j renders these inquiries moot by precluding Boeing’s subsequent request for reimbursement.
Boeing argues that the Board erred in finding that the failure to dispute Roles’ medical expenses during the prehminary proceedings bars their reimbursement because K.S.A. 44-5lOj is not intended to adjudicate the compensability of medical bills as between the employee or employer. Instead, Boeing argues that K.S.A. 44-510j only provides a dispute resolution procedure between an employer and a medical service provider.
Boeing’s challenge requires this court to interpret K.S.A. 44-510j. Statutory interpretation is a question of law over which an appellate court has unlimited review. Bergstrom v. Spears Mfg. Co., 289 Kan. 605, 607, 214 P.3d 678 (2009); State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Hall, 286 Kan. at 785. Therefore, an appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
Within the context of workers compensation, the Kansas Supreme Court has emphasized that when a workers compensation statute is plain and unambiguous, an appellate court must give effect to the statute’s express language rather than determine what the law should or should not be. An appellate court should not “speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction. [Citation omitted.]” Bergstrom, 289 Kan. at 607-08.
On the other hand, under the doctrine of operative construction, the Board’s interpretation of workers compensation statutes is entitled to judicial deference. Under this principle, “[i]f there is a rational basis for the Board’s interpretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on a court.” Higgins v. Abilene Machine, Inc., 38 Kan. App. 2d 735, 737, 172 P.3d 1201 (2008), aff'd on other ground 288 Kan. 359, 204 P.3d 1156 (2009). The party challenging the Board’s interpretation bears the burden of proving its invalidity. 38 Kan. App. 2d at 737.
K.S.A. 44-510j provides a framework wherein an employer who “disputes all or a portion of a bill for services rendered for the care and treatment of an employee” may dispute the bill. Pursuant to K.S.A. 44-510j(a), within 30 days of receipt of a bill, the employer shall inform the provider of the specific reason for refusing payment or adjusting the bill. In relevant part, K.S.A. 44-510j provides the following dispute resolution framework:
“(a) (1) The employer or carrier shall notify the service provider within 30 days of receipt of the bill of the specific reason for refusing payment or adjusting the bill. Such notice shall inform the service provider that additional information may be submitted with the bill and reconsideration of the bill may be requested. The provider shall send any request for reconsideration within 30 days of receiving written notice of the bill dispute. If the employer or carrier continues to dispute all or a portion of the bill after receiving additional information from the provider, the employer, carrier or provider may apply for an informal hearing before the director.
“(2) If a provider sends a bill to such employer or carrier and receives no response within 30 days as allowed in subsection (a) and if a provider sends a second bill and receives no response within 60 days of the date the provider sent the first bill, the provider may apply for an informal hearing before the director.
“(3) Payments shall not be delayed beyond 60 days for any amounts not in dispute. Acceptance by any provider of a payment amount which is less than the full amount charged for the services shall not affect the right to have a review of the claim for the outstanding or remaining amounts.”
As the plain language of K.S.A. 44-510j indicates, the statute provides a framework for resolving medical bill disputes as between employers and medical providers. The statute does not provide an explicit framework for medical bill disputes as between employers and employees. Daniels v. Americold Corporation, Docket No. 189,238, 2007 WL 2586152, at *6 (Kan. Work. Comp. App. Bd. 2007); Snow v. USD 261, Docket No. 253, 300, 2005 WL 3030731, at *2 (Kan. Work. Comp. App. Bd. 2005); Palmer v. DCCCA, Docket No. 248,202, 2003 WL 1918540, at *1-2 (Kan. Work. Comp. App. Bd. 2003). This is likely because the determination of whether treatment is reasonable and necessary to cure or reheve the effects of the accidental injury comprising the underlying award lies within the firm jurisdiction of the ALJ. Daniels, 2007 WL 25861521, at *5-6.
Moreover, in Beisel, 23 Kan. App. 2d at 579, this court found that until the Act contains a workable procedure for utilization review of medical bills, K.S.A. 44-534a(b) is the only procedural vehicle for challenging preliminary medical compensation as unreasonable and unnecessary. Since Beisel was decided in 1997, the Act still contains no utilization procedure for challenging provided medical benefits. See K.S.A. 44-510j(d). Therefore, for now, K.S.A. 44-534a(b) provides the sole means by which an employer can seek reimbursement for excess payments of compensation. See Kimber, 24 Kan. App. 2d at 283; Beisel, 23 Kan. App. 2d at 579. In seeking reimbursement within this framework, the employer is entitled to a full hearing on the merits to challenge the medical compensation paid under a preliminary order. See K.S.A. 44-534a(b); Schmidtlien, 278 Kan. at 825; Sawyer, 246 Kan. at 333.
A plain reading of K.S.A. 44-5lOj and Beisel’s interpretation of K.S.A. 44-534a(b) requires us to find, contrary to the Board, that Boeing’s failure to challenge the medical expenses ordered at the prehminary hearing does not preclude its subsequent reimbursement for any unnecessary or unreasonable expenses. In fact, as Beisel determined, K.S.A. 44-534a(b) is the proper procedural vehicle for contesting such expenses and requires a full hearing on the issue of compensability. It was the province of the ALJ and the Board to conduct the required full hearing to determine compensability. Because neither did so, we may remand the case for the Board to make adequate findings on this issue.
However, that does not appear to be necessary. Based on the final evidentiary record (which necessarily excludes Roles’ testimony at the remand hearing), Roles failed to meet her burden in proving the compensability of the expenses paid under the preliminary order. We should, therefore, award Boeing compensation in the amount of $106,339.65. At the final award evidentiary hearing, Roles never testified or introduced evidence regarding the bills or their relation to her illness. During that hearing, other deposition testimony established that certain medical expenses paid under the preliminary hearing order were indeed unrelated to her occupational exposure at Boeing. For these reasons, we can bypass yet another remand to the Board and enter a finding that Roles failed to fulfill her burden in demonstrating the compensability of the medical compensation paid under the preliminary hearing order, and we do so.
Since this rather complex matter may be reviewed by our Supreme Court, we will also deal with Boeing’s second argument that the Board erred in its interpretation and application of K.S.A. 2009 Supp. 44-510k and in its consequent reversal of the ALJ’s decision denying Roles’ application for post-award medical benefits. Boeing’s argument requires us to interpret the post-award medical compensation statute, K.S.A. 2009 Supp. 44-510k. This is an issue of statutory interpretation, a matter of law over which appellate courts exercise unlimited review in accordance with the principles of statutory construction delineated above. See Bergstrom, 289 Kan. at 607-08.
On appeal, Boeing argues the Board had no jurisdiction to award Roles post-award medical benefits because all the bills she submitted were for treatment incurred prior to January 6, 2007, 6 months prior to her July 6, 2007, application for post-award medical benefits. As a consequence, Boeing argues that Roles was statutorily barred from receiving post-award medical compensation for these bills because they were incurred outside of the 6-month relation back period delineated in K.S.A. 2009 Supp. 44-510k.
Under K.S.A. 2009 Supp. 44-510k(a), at anytime after an award for compensation, the employee may make application for a hearing for an award for further medical care if the ALJ “finds that the care is necessary to cure or relieve the effects of the accidental injury which was the subject of the underlying award.” After receiving such an application, the ALJ “shall have authority to award medical treatment relating back to the entry of the underlying award, but in no event shall such medical treatment relate back more than six months following the filing of such application for post-award medical treatment.” K.S.A. 2009 Supp. 44-510k(b).
In interpreting 44-510k(b), the ALJ found that Roles’ application for post-award medical benefits was not timely filed because all of the bills contained in the post-award record related back more than 6 months from the time of fifing. The Board reversed the ALJ’s order. Initially, the Board acknowledged that 44-510k(b) prohibits an award of medical treatment relating back more than 6 months before the fifing of the post-award medical compensation application. However, the Board distinguished that scenario from the case at bar, where Roles was not applying for medical treatment, but rather “requesting payment for medical treatment provided under the supervision of the authorized treating physician, Dr. Brodnan,” who was appointed as Roles’ authorized physician since at least February 15, 2005.
While not citing to any authority, the Board made the following finding regarding Roles’ right to post-award medical compensation:
“The Board finds respondent’s position on this issue and the ruling of the ALJ are misplaced. There is no six-month rule under K.S.A. 44-510k for ongoing medical treatment with the authorized treating physician. The language of that statute applies to a claimant’s request for newly authorized medical treatment, post-award. There was no need for claimant to request medical treatment here, as it was already being furnished by the physician designated as the treater by respondent. As such, the Board finds the medical bills listed in the Stipulation are the responsibility of respondent and its insurance company, with the exception of the December 27, 2006, bill from the Florida Institute of Health for $93.76 and the Wuesthoff Home Medical Equipment bill for $498.16, as claimant failed to satisfy her burden of proving a relationship between those and her work-related occupational disease. . . . The decision of the ALJ on this issue is reversed.”
There appears to be a split of authority as to whether K.S.A. 2009 Supp. 44-510k(b) permits a post-award medical award for treatment incurred more than 6 months before the fifing of the application for post-award medical benefits. In Meeks v. Essex Group, Docket No. 170,265, 2002 WL 1491810, at *5 (Kan. Work. Comp. App. Bd. 2002), the Board similarly permitted a claimant to recover post-award medical benefits even though such expenses were incurred more than 6 months prior to the filing of the application for post-award medical compensation because the treatment was ordered by the authorized physician. As the Board did in this case, the Board in Meeks found that since the treatment was ordered by the authorized physician, the 6-month bar in 44-510k(b) was inapplicable. 2002 WL 1491810, at *5.
However, in several other cases decided by the Board, it seems that treatment incurred more than 6 months prior to the filing of the application for post-award medical benefits was held to be barred by 44-510k(b). See Thomas v. Thomas Sign Company, Docket No. 1,1001,120, 2005 WL 831901, at *4 (Kan. Work. Comp. App. Bd. 2005) (denying a claimant’s reimbursement for post-award medical expenses for surgery because the surgeiy occurred more than 6 months before the claimant filed their application for post-award medical); Eichem v. Stoneybrook Retirement Community, Docket No. 236, 960, 2002 WL 1838736, at *5 (Kan. Work. Comp. App. Bd. 2002) (ordering respondent to pay claimant a post-award medical award for all medical expenses incurred within 6 months of the claimant’s application for post-award medical); Newton v. Swan Manor, Inc., Docket No. 213,225, 2002 WL 1838729, at *5-6 (Kan. Work. Comp. App. Bd. 2002) (hmiting claimant’s post-award medical award to medical expenses incurred within 6 months of the claimant’s application for post-award medical compensation).
In her first settlement with Boeing in 1995, Roles waived her right to future medical expenses. In the controversy at bar, the ALJ’s final award did not order Boeing to pay any of Roles’ future medical expenses. In fact, the award specifically ordered that “[fjuture medical benefits will be awarded only upon proper application to and approval by the Director of tire Division of Workers Compensation.” The subsequent orders in this case never modified this portion of the ALJ’s order. Consequently, Roles is only entitled to future medical compensation if she properly sought relief under the post-award medical statute.
In this case, Roles filed an application for post-award medical benefits on July 6, 2007, shortly after the remand hearing. The application sought reimbursement for post-award medical treatment incurred after Roles’ February 1, 2006, terminal date (the deadline after which Roles’ medical expenses would no longer be considered for purposes of the final award hearing). All of the expenses claimed in the post-award application were incurred more than 6 months prior to the July 6, 2007, application (or prior to January 6, 2007).
As aforementioned, aside from the Board’s decision in the case at bar, there is at least one other case holding the K.S.A. 2009 Supp. 44-510k(b) bar inapplicable to treatment ordered by the authorizing physician. However, there are at least three cases holding to the contrary. The situation is further complicated by the lack of authority from the Kansas Supreme Court on this issue. Therefore, we must decide between competing principles of statutory interpretation. Under the doctrine of operative construction, we should give deference to the Board’s interpretation of workers compensation statutes. See Higgins, 38 Kan. App. 2d at 737. On the other hand, the Kansas Supreme Court has emphasized that where a workers compensation statute is plain and unambiguous, an appellate court must not speculate as to the legislative intent behind it but instead give effect to the statute’s express language. Bergstrom, 289 Kan. at 607-08.
We defer to the principles of statutory interpretation enunciated in Bergstrom and choose to attach ordinary meaning to the legislative terms in K.S.A. 2009 Supp. 44-510k(b). In doing so, we find that the Board’s order granting Roles post-award medical benefits must be reversed. K.S.A. 2009 Supp. 44-510k(b) makes it clear that an ALJ is without authority to award a claimant benefits for medical treatment incurred more than 6 months prior to an application for post-award medical compensation. The statute includes no explicit exception for medical expenses ordered or performed by the authorized physician. Therefore, the Board erred in awarding Roles post-award medical compensation.
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Bukaty, J.:
Jason Brinegar (Brinegar) appeals the trial court’s award of attorney fees against him in favor of Mercy Regional Health Center, Inc. (Mercy). We affirm.
This case began in October 2006, as a debt collection proceeding under Chapter 61 of the Kansas Code of Civil Procedure. Mercy sued Jason and Jennifer Brinegar to collect for services rendered in connection with a minor surgical procedure that was performed on their daughter at Mercy. Brinegar, who is an attorney, filed an answer on behalf of his wife and himself disputing the debt. He included with his answer a counterclaim on behalf of Jennifer and himself alleging Mercy violated the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., and the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 (2006) etseq. Eventually, the Brinegars voluntarily dismissed their KCPA and FDCPA claims. Then just prior to the scheduled trial, they agreed to a judgment against them for $1,230.57, the amount of the original hospital bill. Mercy sought to recover attorney fees against Brinegar only, and the parties went to trial on that sole issue. After holding a lengthy evidentiary hearing during which over 30 exhibits were admitted into evidence, the trial court prepared and filed a detailed journal entiy awarding a judgment for attorney fees to Mercy under K.S.A. 50-634(e) and K.S.A. 60-211 against Brinegar. He appeals from that judgment.
Essential Facts
One of Brinegar5s arguments that we address in this appeal requires a scrutiny of his intent at the time he filed the counterclaim with the court. Consequently, a somewhat detailed recitation of the facts leading up to and following that filing is necessary for an understanding of the issues.
On October 20, 2005, the Brinegars’ daughter underwent a scheduled minor surgery at Mercy. Jennifer took her daughter to Mercy for the surgeiy and signed the admissions documents. The admission documents contained the following statement relating to the agreement to pay for services:
TO. AGREEMENT TO PAY FOR SERVICES AND ASSIGNMENT OF INSURANCE BENEFITS. In consideration of the admission, care, and treatment provided to the patient, the undersigned . . . agrees to pay Mercy Regional Health Center all charges for services rendered in accordance with its regular rates on this date. . . .
“I hereby assign to Mercy Regional Health Center any and all medical benefits payable from any policy of insurance insuring the patient or person responsible for the patient’s care ... to be paid directly to Mercy to be applied to the charges for services rendered. I understand I am responsible for co-insurance payments, deductibles and/or any remaining balance.”
The Brinegar family had a health insurance policy through Blue Cross Blue Shield of Kansas (BCBS). The relevant portion of the Brinegars’ policy relating to the allowable charges for covered services from a contracting provider stated as follows:
“A. Contracting Providers of Blue Cross and Blue Shield of Kansas or another entity on behalf of Blue Cross and Blue Shield of Kansas or another entity on behalf of Blue Cross and Blue Shield of Kansas for other than Prescription Drugs or Sleep Studies.
“The Contracting Provider Agreement between the provider and the Company or the provider and the other entity sets out the method the Company or other entity will use to determine allowable charges for covered services. Contracting Providers have agreed to accept the Company’s or other entity’s determination of Your benefits as payment in full for covered services, except that You are responsible for payment of: Deductible, Coinsurance, Copayment/Copay amounts, shared payment amounts, non-covered services, private room charges in excess of the allowable amount stated in Your Certificate, and amounts in excess of any other benefit limitations of Your Certificate.”
The total amount of the bill from Mercy for the services provided to the Brinegars’ daughter came to $2,351.00. Apparently, this bill would have been the same amount for the particular services received, regardless of whether the patient was covered by Medicaid, private insurance, or was uninsured.
Mercy submitted the bill to BCBS. Based on its agreement with BCBS, Mercy was required to write off $1,120.43 of the charges. The remaining amount of $1,230.57 applied towards the Brinegars’ deductible and became the Brinegars’ responsibility to pay.
On November 21, 2005, Mercy sent the Brinegars a bill for this balance of $1,230.57. The following month, Mercy sent a second bill to the Brinegars. Mercy later received a handwritten note from Brinegar. In the note, Brinegar wrote as follows:
“If you really want me to pay this bill you are going to have to do much better than simply send such a general & undetailed statement. Further, I demand to be informed of the amount Medicaid pays for this procedure/service.
“In the alternative I will send you $600.00 to settle this account in full.”
Upon receiving Brinegars letter, a Mercy account representative checked Medicaid eligibility. Apparendy, the Brinegars’ daughter did not qualify for Medicaid coverage. The account representative called Brinegar and left a number with his receptionist.
Between January and April 2006, Mercy sent several notices to the Brinegars for the amount owing. At one point during this time, Brinegar called an account representative with Mercy and was very demeaning and rude. He demanded an itemized statement, demanded to know what Medicaid paid, and stated he was only going to pay Medicaid’s amount even though his daughter did not qualify for Medicaid. When the representative stated she did not know and did not have that information without submitting the bill to Medicaid, Brinegar called her a liar. He also stated that Mercy would have to sue him to collect and that he had been down that road before.
In April 2006, Mercy turned over the Brinegars’ account to Kansas Counselors, Inc. (KCI), for collections. Brinegar then responded in a letter to KCI in which he disputed the debt and requested a verification of it. Brinegar is an attorney with the firm Galloway, Wiegers, and Heeney, P.A. He sent the letter in his capacity as his and his wife’s attorney. At the end of his letter, he wrote: “[I]f your client insists on pursuing this matter by filing suit, we will demand depositions of ALL attending physicians as well as an administrator.”
KCI forwarded Brinegars letter to Mercy, and the matter was referred to Grant Bannister, an attorney in Manhattan, Kansas. Bannister sent Brinegar a letter, along with an itemized hospital bill from Mercy, a remittance from BCBS, and patient claim details from BCBS. In the letter, Bannister told Brinegar that Mercy had declined his offer of $600.
In a May 15, 2006, letter to Bannister, Brinegar wrote that he had not received verification of the hospital bill and that Bannister’s letters had not been responsive to his requests for information. Brinegar further wrote:
“You can pass along to your client that in the event that suit is filed, or even if the claim is reported to a credit bureau that they will be in for protracted litigation. It will be necessary to procure the depositions of the medical professionals involved in the procedure as well as administrative personnel.
“In the alternative, I have repeatedly offered to settle the matter. However, your client appears unresponsive to such. Settlement would only malee sense as a collection agency will take forty percent. Why not simply settle this matter for sixty percent and ensure the collection without the effort and expense of the litigation described above.”
Mercy authorized the fifing of suit against the Brinegars, and it sent the case to attorney Kurt Holmes. Before fifing suit, Holmes sent a demand letter to the Brinegars. Brinegar then sent a letter to Holmes disputing the debt and demanding verification of the hospital bill. In addition, Brinegar invited Mercy to file suit against him so that he could pursue his FDCPA counterclaim:
“I have in the past made two offers to settle this account, both of which have been ignored. I have concluded that your client would rather litigate the matter than settle. Therefore, please file suit to move this matter along and then I can move forward with my counterclaim for failure to comply with the FDCPA and set up the Dr. and administrator for a deposition. If your client is amenable to settlement, please review my offer of 60% or $738.34 made on May 15, 2006.”
On September 21, 2006, Holmes responded to Brinegar s letter and sent him a verification of the debt. Holmes wrote that he had forwarded Brinegar s settlement offer to Mercy and would advise him as to Mercy’s response. The verification was signed by Mercy’s business office manager but was not notarized.
In October 2006, Mercy sued the Brinegars for $1,230.57, plus interest and costs, in a Chapter 61 debt collection proceeding. The Brinegars filed an answer and counterclaim to Mercy’s petition. The defenses included in the answer were waiver, failure to mitigate, accord and satisfaction, estoppel, and laches. In addition, the answer alleged that Mercy had failed to adequately and competently perform services as promised and that the Brinegars had received no value from the services provided by Mercy. In their counterclaim, the Brinegars alleged that Mercy had violated the KCPA and FDCPA and asked for an award of actual and statutory damages, costs, and attorney fees. In addition, the Brinegars requested a jury trial. Brinegar, in his capacity as an attorney, signed the answer and counterclaim.
On October 31, 2006, Brinegar faxed the answer and counterclaim from his law firm to Holmes. “GAME ON!” was written in the comments section on the fax cover sheet.
On November 15, 2006, attorney Matthew Hesse wrote Brine-gar and offered to settle the account for $1,000. Hesse was in-house counsel for Via Christi Health System, of which Mercy was an affiliate member. In his letter, Hesse stated that Mercy’s decision not to accept his earlier offers would not rise to the level of a KCPA violation. Hesse further stated: “You are probably aware that the [KCPA] cuts both ways on attorney’s fees. See, K.S.A. 50-634. The prevailing party can request reimbursement of fees. Before this enters the ‘protracted litigation stage,’ it behooves both parties to discuss this matter.”
In response to Hesse’s letter, Brinegar left Hesse a voicemail in which he stated that the “$1,000” offer was unacceptable and “let’s just have some fun with it.”
At that point, Hesse hired Jay Fowler, a partner at Foulston Siefkin, to defend the counterclaims and prosecute the debt collection. Hesse had previously hired attorney Curt Loub to enter an appearance in the case and to request a 10-day extension to respond to the Brinegars’ counterclaim. Fowler filed a reply to the Brinegars’ counterclaim and maintained that Mercy was entitled to attorney fees and expenses under K.S.A. 60-211, K.S.A. 50-634 of the KCPA, and 15 U.S.C. § 1692k(a)(3) (2006) of the FDCPA.
Brinegars law firm had an associate named Elizabeth Hiltgen. She had signed several documents on behalf of the Brinegars that were related to discovery and filed with the court. After filing answers to the Brinegars’ interrogatories, Fowler wrote to Hiltgen and stated that there was no basis for either a KCPA claim or an FDCPA claim and reminded her that the Brinegars could end up being responsible for Mercy’s attorney fees. Fowler urged Hiltgen to read a 2001 annotation article entitled “What Constitutes ‘Debt Collector’ for Purposes of Fair Debt Collection Practices Act” at 173 A.L.R. Fed. 223. Finally, Fowler offered to settle the case for $1,230.57, plus the $53 filing fee.
Hiltgen responded to Fowler’s letter saying she would be filing an amended petition to include Holmes and KCI in order to preserve the FDCPA claim. She reminded Fowler that he had yet to provide her with answers to production for documents. Further, she told Fowler that his offer to settle the case was denied and that she would need to depose the treating physician, admission coordinator, and billing clerk at Mercy.
Fowler wrote back to Hiltgen and enclosed responses to the Brinegars’ requests for production. Moreover, Fowler pointed out that based on the promise to pay and the Brinegars’ contract with BCBS, there was no viable KCPA claim. Finally, on the matter of depositions, Fowler stated that “K.S.A. 61-3105 limits the use of depositions in Chapter 61 cases to only those instances where the deposition is necessary to preserve testimony for trial and the use of the deposition as appropriate pursuant to the criteria set out in K.S.A. 61-3105(b).”
Hiltgen then communicated an offer to settle the case for $850 to Fowler. Mercy declined the offer. In a letter dated January 18, 2007, Fowler again explained the reasonableness of Mercy’s charges, pointed out the risk to the Brinegars for an adverse judgment for attorney fees and costs, and again offered to settle for $1,230.57, the amount of the original claim, plus the $53 filing fee.
In January 2007, Hiltgen, on behalf of the Brinegars, moved for leave to amend their counterclaim to add defendants KCI and Holmes and to “omit” the FDCPA counterclaim against Mercy. The trial court granted the motion to withdraw the counterclaim against Mercy but denied the motion to amend it. The Brinegars appealed that decision. Mercy objected to the notice of appeal and argued that a ruling on a motion to amend is not appealable in a Chapter 61 proceeding. Brinegar eventually withdrew his notice of appeal.
In January 2008, attorney William O’Keefe entered an appearance for the Brinegars and soon thereafter notified the trial court that the Brinegars were dropping the demand for a jury trial.
In February 2008, O’Keefe, on behalf of the Brinegars, moved to amend the pleadings. The motion stated that the Brinegars would drop all counterclaims against Mercy and stipulate that they owed $1,230.57 to Mercy. Moreover, the Brinegars requested to change their defenses of accord and satisfaction, estoppel, laches, and waiver to the defense of clean hands. The trial court granted the motion to amend the pleadings and entered judgment in favor of Mercy for $1,230.57, plus prejudgment interest at the rate of 10%.
The case then went to trial on the remaining issue of Mercy’s request for attorney fees under K.S.A. 60-211, K.S.A. 50-634, and 15 U.S.C. § 1692k(a)(3). Mercy sought attorney fees in the amount of $17,095.95, plus costs, including statutory witness fees and mileage. Amy Lemley, of Foulston Siefkin, represented Mercy during the trial. At the beginning of trial, Lemley reiterated that the attorney fee request was against Jason Brinegar, and the trial court excused Jennifer Brinegar from attending the trial.
Shortly thereafter the trial court issued its journal entry granting judgment in favor of Mercy against the Brinegars, jointly and severally, for $1,230.57, plus interest and costs. Additionally, it entered judgment against Jason Brinegar alone in the amount of $8,318.50 for attorney fees under K.S.A. 60-211 and K.S.A. 50-634. The court determined that Mercy was not entitled to attorney fees under 15 U.S.C. § 1692k(a)(3) of the FDCPA.
Brinegar moved for a new trial or to alter or amend the judgment under K.S.A. 60-259, which was denied.
Attorney Fees Under KS. A. 60-211
Brinegar offers two reasons why the trial court erred in awarding attorney fees under K.S.A. 60-211: (1) The trial court failed to identify any pleading that violated K.S.A. 60-211(c); and (2) there was no factual basis to support a determination that any pie was done for an improper purpose.
A court may not award attorney fees absent statutory authority or an agreement by the parties. Brennan v. Kunzle, 37 Kan. App. 2d 365, 392-93, 154 P.3d 1094, rev. denied 284 Kan. 945 (2007). Whether the requisite authority exists is a question of law over which appellate review is unlimited. Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 490, 173 P.3d 642 (2007).
Brinegar s arguments on this issue require interpretation of K.S.A. 60-211. This interpretation of a statute also presents a question of law over which appellate courts have unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). 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). An appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
In addition to the statutory interpretation questions involved here, Brinegar’s arguments require an examination of the findings of fact made by the trial court. The court issued a lengthy journal entry containing those findings and its legal conclusions. We review the court’s findings of fact to determine if they are supported by substantial competent evidence and are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). An appellate court has unlimited review of the trial court’s conclusions of law. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
K.S.A. 60-211 provides as follows:
“(a) Every pleading, motion and other paper provided for by this article of a party represented by an attorney shall be signed by at least one attorney of record in the attorney s individual name, and the attorney’s address and telephone number shall be stated. A pleading, motion or other paper provided for by this article of a party who is not represented by an attorney shall be signed by the party and shall state the party’s address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by an affidavit.
“(b) The signature of a person constitutes a certificate by the person that the person has read the pleading, motion or other paper and that to the best of the person’s knowledge, information and belief formed after an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
“(c) If a pleading, motion or other paper provided for by this article is not signed it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees. A motion for sanctions under this section may be served and filed at any time during the pen dency of the action but not later than 10 days after the entry of judgment.” (Emphasis added.)
We first address Brinegar s argument that the trial court failed to identify any pleading that violated K.S.A. 60-211. The argument lacks any merit. It is abundantly clear from a reading of the trial court’s journal entry of judgment that it was the fihng of the counterclaim and subsequent prosecution of it that brought on the sanctions. The decision mentions no other pleading that caught the court’s ire.
In conjunction with the above argument, Brinegar contends there is no statutory or case law authority that supports a finding that a pleading that was proper at the time it was filed can later result in sanctions under K.S.A. 60-211(c) because of conduct of the signer after the fifing. We agree.
The plain language of K.S.A. 60-211(c) allows a trial court to impose appropriate sanctions, which may include attorney fees, against a party or an attorney for signing pleadings, motions, and other papers filed with the court in violation of the statute. Under K.S.A. 60-211(c), it is this act of signing an improper pleading, motion, or other paper filed with the court that subjects the offender to sanctions. In determining whether sanctions should be awarded under this section, a court must focus its inquiry on whether the pleadings, motions, or other papers were in violation of the statute when they were signed and filed with the court. Federal court case law interpreting Rule 11 of the Federal Rules of Civil Procedure, upon which K.S.A. 60-211 is modeled, supports this interpretation. See Jones v. International Riding Helmets, Ltd., 49 F.3d 692, 695 (11th Cir. 1995) (In considering whether to award sanctions under Rule 11, the court’s inquiry focuses only on the merits of the pleading gleaned from the facts and law known or available to the attorney at the time of filing.); Souran v. Travelers Ins. Co., 982 F.2d 1497, 1507 n.12 (11th Cir. 1993) (quoting Fed. R. Civ. Proc. 11, Advisory Committee Note) (“ ‘The court is expected to avoid using tire wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.’ ”); Jack son v. Law Firm of O’Hara, Ruberg, et al., 875 F.2d 1224, 1229 (6th Cir. 1989).
We note that Rule 11 of the Federal Rules of Civil Procedure was amended in 1993 to change the triggering action for sanctions from “signing” to “presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it.” Those amendments, however, are irrelevant to the issues here since K.S.A. 60-211 has no such language.
To the extent then that the trial court here may have imposed sanctions on Brinegar under K.S.A. 60-211 for his conduct in prosecuting his counterclaim after he filed it, the court applied a wrong standard. The court appears to have done so since it discusses in detail the fact Brinegar continued to pursue his counterclaims for violation of the KCPA up until just before the scheduled trial. It appears the court may have imposed sanctions as a result of both the signing and the prosecution of the counterclaim.
However, if the trial court reached the right result in determining that attorney fees are appropriate here under K.S.A. 60-211(c), we will uphold the decision even though the trial court assigned an erroneous reason or reasons for its decision. The reason given by the trial court for its ruling is immaterial if the result was correct. City of Arkansas City v. Bruton, 284 Kan. 815, 848-49, 166 P.3d 992 (2007).
Despite the trial court’s repeated language critical of the way Brinegar prosecuted his counterclaim, the opinion also contains language indicating the court clearly understood the focus must be on the signing of the pleading before sanctions are authorized under K.S.A. 60-211. In discussing Brinegar’s counterclaim for KCPA violations, the court stated:
“Based on the plain language in [K.S.A. 60-211](c), sanctions, of at least some type, are mandatory when a pleading is signed in violation of the statute and/or an attorney violated the statue willfully, knowingly, and in bad faith. [Citation omitted.] In making that determination, the court should consider whether the evidence indicates that a claim asserted was without reasonable basis in fact and the claim was not asserted in good faith. [Citation omitted.] Trial courts retain discretion as to the type and degree of sanctions appropriate and are subject to and abuse of discretion standard. [Citations omitted.]”
Then in referring again to the counterclaim for violation of the KCPA, the trial court appears to have applied this proper standard in rendering its finding that Brinegar brought the claim for an improper purpose when it stated:
“The only logical justification in either presenting it or maintaining it was to attempt to leverage defendant’s position against the original debt claim. While such ploys are unfortunately not always uncommon, they are an abuse of the legal system and a serious abuse when they are maintained for an extended period of time. Mr. Brinegar’s gamble seriously raised the stakes of this otherwise straight forward debt case.”
The uncontroverted evidence presented to the trial court amply supports this finding that Brinegar brought his counterclaim for an improper purpose. First, there was the rude and demeaning attitude he displayed with employees and agents of Mercy who had contacted him about the bill. This is not unusual or sanctionable by itself. But then there were the letters from Brinegar threatening “protracted litigation” and threatening to depose hospital personnel so as to disrupt the functioning of the hospital, as well as the “GAME ON!” challenge to Mercy. Combined, all these facts provide ample evidence the counterclaims were brought for the improper purpose of economically intimidating Mercy and pressuring it to compromise its billing or face significant legal costs. As set forth previously, a pleading, motion, or paper is in violation of K.S.A. 60-211(b)(l) if it is “presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The evidence here suggests that is exactly what Brinegar intended and, in fact, accomplished.
The trial court awarded Mercy the judgment for attorney fees under both K.S.A. 60-211 and the KCPA, more specifically K.S.A. 50-634. It then ordered the two awards to run concurrent with each other. Since we have concluded that the award was proper under K.S.A. 60-211, Brinegar s argument that the court erred in ordering fees under K.S.A. 50-634 is now moot. We need not consider it.
Factors To Be Considered in Determining the Amount of Attorney Fees
Brinegar next contends that the trial court failed to properly consider the relevant factors for determining attorney fees. The argument has no merit.
KRPC 1.5(a) (2009 Kan. Ct. R. Annot. 460) of the Kansas Rules of Professional Conduct outlines the eight relevant factors to be considered in determining the reasonableness of an attorney fee. The trial judge specifically identified and then considered six of those factors that .he thought pertained to the facts in this case. The court also identified other factors it considered and then outlined evidence it thought pertained to those factors.
Further, we note the trial court apparently attempted to award attorney fees only for the time Mercy spent defending Brinegar’s claim under the KCPA and not award attorney fees for time attributed solely to defense of the FDCPA claim. However, the court awarded attorney fees for time that could not be attributable to a specific claim because the claims were so intermingled in the litigation that a separation of the time attributable to each could not be accomplished. This is certainly appropriate. See DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, Syl. ¶ 2, 947 P.2d 1039 (1997).
Brinegar further argues the trial court erroneously awarded attorney fees to Mercy for time spent Htigating the attorney fees award. However, our Supreme Court stated in Moore v. St. Paul Fire Mercury Ins. Co., 269 Kan. 272, Syl. ¶ 2, 3 P.3d 81 (2000):
“The primary purpose of the Kansas fee-shifting statute is to benefit the insured. Fees incurred litigating the amount of attorney fees to be awarded are recoverable under K.S.A. 40-256. The fact that the award of such fees ultimately rests in the insured’s attorney being paid to litigate the fees is collateral and incidental to the primary purpose of indemnifying an insured for the cost of counsel in an action against the insurer.”
Although we are dealing with different attorney fees statutes here, the rationale expressed in Moore is applicable. While the award of attorney fees in this case results in Mercy’s attorneys being paid to litigate the attorney fees issue, it is incidental to the primary purpose of the fee sanction which is to indemnify Mercy for a reasonable amount of attorney fees it incurred in defending against Brinegar s filing of a counterclaim for an improper purpose.
Importantly, Mercy sought more than twice the amount of attorney fees than the trial court awarded. In reducing the judgment, the court very adequately set forth its reasons. The trial court is an expert regarding the award of attorney fees and can apply its own expertise in determining the reasonable value of those fees. An appellate court is also an expert on the reasonableness of attorney fees. However, an appellate court does not substitute its judgment for that of the district court on the amount of the attorney fees award unless in the interest of justice the appellate court disagrees with the trial court. Davis v. Miller, 269 Kan. 732, 750-51, 7 P.3d 1223 (2000). We find no basis to disagree in this case.
Brinegars Motion to Compel Discovery
Brinegar argues the trial court erred in denying or failing to rule on his motion to compel discovery. The Brinegars moved to compel Mercy to respond to one of their interrogatories requesting information relative to the Medicaid reimbursement rate for the procedures performed on the Brinegars’ daughter. Apparently, Mercy had responded to the interrogatory by stating that the information was not relevant and was not likely to lead to discoverable information. The record before us contains no order in which the trial court specifically ruled on this motion.
However, even had the trial court denied the motion, that denial would not be reversible error under the facts before us. In this appeal, Brinegar is requesting only that we reverse the award of attorney fees entered by the trial court. We fail to see how the specific amount that Medicaid would have paid for services would have affected that award. At trial, Brinegar was able to present his argument to the court that he pursued his KCPA claim based on his belief that the reasonable charges for the services provided to his daughter would be the lower amount that Medicaid would have paid. For purposes of the attorney fees issue, the exact amount of Medicaid reimbursement would not have significantly enhanced his argument.
Attorney Fees on Appeal
Lastly, we note that Mercy has filed motions requesting attorney fees and other expenses incurred in this appeal in the total amount of $16,636.75. Of this amount, $16,160 is for attorney fees and $476.75 is for assorted expenses for transcripts, copying, printing, court clerk fees, mileage, and tolls. Brinegar has filed no response. He has never questioned the time spent by Mercy’s attorneys, the amount charged for it, or the other expenses listed.
An appellate court has authority to award attorney fees under Supreme Court Rule 7.07(b) (2009 Kan. Ct. R. Annot. 61) on appeal in cases where the trial court had authority to award attorney fees. See Hodges v. Johnson, 288 Kan. 56, 74, 199 P.3d 1251 (2009). Mercy has requested an award of attorney fees on appeal under K.S.A. 60-211 and K.S.A. 50-634(e).
A couple of significant points compel us to conclude it would not be appropriate to award of all of the attorney fees and expenses that Mercy requests on appeal. First, we note again at this point that the trial court awarded the amount of $8,318.50 to Mercy, roughly one half of the amount Mercy is requesting on appeal. The award was for attorney fees incurred during 1 year of protracted litigation. It-included a trial which is recorded in a 210-page transcript. Second, we also note that while we are affirming the trial court’s ruling that awarded attorney fees to Mercy based upon Brinegar’s filing of a counterclaim for an improper purpose, Brine-gar’s appeal was not completely frivolous, particularly in light of die continuous reference by the trial judge in his opinion to the manner in which Brinegar prosecuted his counterclaim after he had signed and filed it with the court. As we stated, such activity is not sanctionable under K.S.A. 60-211.
At the same time, this appeal stemmed from Brinegar’s original abuse of the legal system. The costs incurred by Mercy on appeal are a part of the continuum of unfortunate and otherwise avoidable events caused by that improper conduct. Sanctions in some amount for the attorney fees expended by Mercy on appeal are certainly appropriate.
We have examined the affidavits accompanying Mercy’s motion and conclude that a proper fee to be awarded Mercy for its attorney fees and expenses incurred in this appeal is $8,300.
Conclusion
The district court’s judgment in favor of Mercy Regional Health Center, Inc., against Jason Brinegar for attorney fees in the amount of $8,318.50 is affirmed. Mercy’s motion for attorney fees in connection with this appeal is granted, and Mercy is awarded an additional amount of $8,300.
Affirmed.
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Green, J.:
Karl Bowlin appeals from his bench trial conviction and sentence for involuntary manslaughter in violation of K.S.A. 21-3404. In addition, Bowlin appeals from the trial court’s judgment denying his ineffective assistance of counsel claims after an evidentiary hearing. Bowlin first argues that his trial counsel was ineffective in not moving to suppress his statements made during a police interrogation. We agree with Bowlin’s argument. The appellate record in this case establishes that there were two good bases for suppressing Bowlin’s interrogation statements — that Bowlin’s statements were involuntary based on overreaching police conduct and based on Bowlin’s assertion of his right to counsel under the Fifth Amendment to the United States Constitution. Because the suppression of Bowlin’s interrogation statements would have dealt a serious, if not fatal, blow to the State’s case against Bowlin, we are unable to dismiss the decision by defense counsel to not seek suppression of Bowlin’s statements as trial strategy. We determine that defense counsel’s conduct in not moving for suppression of Bowlin’s interrogation statements, and in actually stipulating to the admission of the interrogation tape into evidence at trial, was deficient and that Bowlin was prejudiced by such conduct.
Bowlin also contends that the State presented insufficient evidence for the trial court to convict him of involuntary manslaughter. Although we are reversing and remanding for a new trial, we must also address Bowlin’s sufficiency of the evidence argument to determine whether retrial is permissible under the Double Jeopardy Clause. After reviewing all of the evidence, in the light most favorable to the State, we are convinced that a rational factfinder could have found Bowlin guilty beyond a reasonable doubt.
Because we are reversing and remanding for a new trial, we need not address Bowlin’s other arguments concerning his ineffective assistance of counsel claims and the trial court’s use of criminal history to increase his sentence. Accordingly, we reverse Bowlin’s conviction for involuntary manslaughter and remand for a new trial.
Bowlin’s conviction in this case is based on the death of an 8-year-old girl, Jewell Morse, who died as a result of a house fire on the evening of July 2, 2006. Two fire investigators, who conducted independent investigations, were able to eliminate several accidental causes of fire, including a gas fire and an electrical fire, but they were unable to determine the actual cause of the fire. The fire investigators were able to determine that the fire had started in the basement of the house around a table where paint thinner had spilled, and had quickly spread upstairs to the rest of the house.
During the fire investigations, a Black Cat wrapper was found in a back bedroom of the DeMotte house. Nevertheless, according to fire investigator John Paul Jones, the residents of the DeMotte house said they had run out of fireworks, and the boy who lived in that bedroom was in a juvenile detention facility when the fire occurred.
On July 4, 2006, 2 days after the fire, Detective Michaels, along with Detective Randy Slater, fire investigator Jones, and fire investigator Jim Long, interrogated Bowlin. According to Long, when they met with Bowlin, they had received reports from other people in the neighborhood that Bowlin had been throwing M-80’s on the evening in question. During the 3-hour and 11-minute interview, Bowlin stated that one of his bottle rockets might have gotten away from him and started the fire.
At the end of the interview, Bowlin stated that he had shot a rocket on a thicker stick that had hit the house and might have gone down and landed inside the house. Bowlin stated that he drought the rocket might have been what went inside the house and started the fire. Bowlin stated that they might have been throwing M-80’s before or right after he shot the rocket.
The State charged Bowlin with first-degree felony murder under K.S.A. 21-3401 based on the underlying felony of aggravated arson. Alternatively, the State charged Bowlin with second-degree reckless murder in violation of K.S.A. 21-3402. The State also charged Bowlin with aggravated arson in violation of K.S.A. 21-3719. After prehminary hearing, the trial court bound Bowlin over for trial on all of the charged counts.
At a pretrial motions hearing, Bowlin’s attorney stated that he was not going to move to suppress Bowlin’s statements from the police interrogation on July 4, 2006, and he stipulated to the voluntariness of the statements.
The State amended the complaint to charge Bowlin with second-degree reckless murder. The first-degree felony murder and ag gravated arson charges were dismissed. The State’s original theory had been that Bowlin had thrown an M-80 towards the DeMotte house and that it had entered the house and started the fire. Nevertheless, after prehminary hearing, the State changed its theory to argue that Bowlin had thrown a dangerous illegal rocket in a residential area, that such conduct showed a disregard for the value of the human fives in that location, and that the illegal firework had gone in the DeMotte house and started the fire.
Bowlin waived his right to a jury trial, and the case proceeded to a bench trial. At trial, Tina Hodge, who was Bowlin’s girlfriend and roommate, testified that she had been with Bowlin before the house fire started on July 2, 2006. According to Tina, several people, including Bowlin, Terry Miller, Nino Morse, Bowlin’s niece Gina, and Gina’s children, were shooting off fireworks in the alley outside her house that evening. Tina testified that there were bottle rockets (maybe larger ones), Saturn missiles, and firecrackers there that evening. Tina testified that Marcus Morse, Terry Morse, and Jeff Miller were also there that evening, but Terry Morse left at some point in the evening. Tina testified that there were people all over the alley, at the nearby park, and also throughout the neighborhood shooting off fireworks that evening. Tina further testified that she heard bottle rockets, M-80’s, and firecrackers throughout the evening.
Matthew Morse, who was one of Dawn DeMotte’s sons, also testified that many fireworks, including bottle rockets and little dynamites, were being set off in the neighborhood on the night of July 2, 2006.
Tina testified that before the fire started that evening, Bowlin and his group ran out of fireworks, and she and Gina left to get more. According to Tina, Bowlin’s group was sitting around and not shooting off any fireworks when she left. Tina did not arrive back at the scene until after the fire had started.
Terry Miller, who was Tina’s uncle, testified that no one in their group had any M-80’s or larger bottle rockets. Miller further testified that no one shot anything towards the DeMotte house. According to Miller, they had shot off all of their fireworks and were waiting for Tina and Gina to bring them more fireworks when the DeMotte house went up in flames.
Jewell’s mother, Dawn DeMotte, testified that Robert Garrison, who was living in the garage behind her house, woke her up on the evening of July 2, 2006, and got her out of the house fire. Garrison and all of DeMotte’s other children, except for Jewell, were able to get out of the house safely.
DeMotte testified that before she had moved into the house, it had previously caught on fire, but Bowlin and her previous boyfriend, Adam, had helped fix it up. DeMotte testified that after Adam had moved out of her house, she and Bowlin were not friends and there had been some hard feelings between them. Nevertheless, DeMotte testified her children would play with Bowlin, and they had been shooting bottle rockets at each other across the alley on the Friday before the fire. According to DeMotte, although the boys were mad when they were initially shooting bottle rockets at each other, it turned into a “ha-ha kind of’ situation.
Two days after the fire, while at the hospital, Robert Garrison told a detective and a fire investigator that Bowlin had been throwing M-80’s and had been yelling statements like, “I’ll show you guys,” and, “I’m gonna get you guys,” on the evening of July 2, 2006. Nevertheless, at preliminary hearing, Garrison testified that he did not see Bowlin throwing any fireworks or igniting them towards the house directly. Moreover, when questioned by the prosecutor whether Bowlin had said anything, Garrison testified, “[N]ot that I recall.”
At trial, however, Garrison changed his story again and testified that he could see Bowlin shooting some sort of rockets towards DeMotte’s house on the evening of July 2, 2006. According to Garrison, he heard a loud explosion that evening when he was in Dawn’s house. Garrison testified that when he got up and looked outside, he saw Bowlin and other people shooting off fireworks. According to Garrison, a short time later, he saw smoke coming out of the basement. Garrison further testified that there were a lot of fireworks going off that night, including M-80’s, bottle rockets, and firecrackers, but he did not see anyone else shooting fireworks in the direction of DeMotte’s house.
Terry Morse testified that when he talked with his nephew, Nino Morse, shortly after the fire, Nino told him that Terry Miller was saying that Nino had started the fire. Nino then told Terry Morse that Bowlin had caused the fire. Nino told Terry Morse that Bowlin lit a bottle rocket and said, “[H]ere’s how a professional does it” and then threw it. Nino told Terry Morse that he saw the rocket go inside the DeMotte house. Nino further stated to Terry Morse that he and Bowlin ran over to a tree and watched as the fire started. When questioned at trial about why neither he nor Nino went to the police about Bowlin’s involvement in the house fire, Terry Morse stated that both he and Nino had warrants out for their arrest at that time. Although Terry Morse and Nino Morse told Jewell’s father, Patrick Morse, about Nino’s version of events, Patrick Morse did not go to the police with this information.
Approximately 3 months after the fire and after the preliminary hearing, Dawn DeMotte told fire investigator Jones that she had heard that Nino Morse had told Patrick Morse some information about the fire. Upon being interviewed, Nino initially told Jones that a firework thrown by Bowlin had gone inside the house. Nevertheless, when questioned further about whether it went in the house, Nino told Jones that the firework did not go in the house but that it hit by tire base of the house. Nino then told Jones that he could not really see the firework hit and that it just “kind of went over by the base.” Nino said that he had been smoking marijuana all day on July 2, 2006.
At trial, Nino testified that he had been drinking since he woke up on the morning of July 2, 2006, and that “[t]hose are drunken memories.” Nino further testified that he smoked a quarter of an ounce of marijuana on the morning of July 2, 2006. According to Nino, he could not be very sure about exactly what happened during the incident in question because he was “pretty high and pretty drunk.”
Nino testified that he, Bowlin, and Terry Morse were drinking on the evening of July 2, 2006, and shooting off fireworks, like Black Cats and 9-inch bottle rockets. Nino testified that he had told Terry Morse and Patrick Morse, who was Jewell’s father, that he had seen Bowlin shoot a large bottle rocket, that he had seen the rocket fly towards the left side of the DeMotte home, and that he thought it had caused the fire. During his testimony, Nino denied that Bowlin ever broke the stick off the firework or that Bowlin had said anything like, “this is how a professional does it,” before he shot the firework. According to Nino, when the firework went off, he and Bowlin jumped in the gate of his truck and watched to malee sure that nothing caught on fire. Nino testified that they saw no smoke or fire, so they continued what they were doing.
According to Nino, no more than 10 minutes after Bowlin shot the rocket, they noticed that the DeMotte house was on fire. Nino testified that during those 10 minutes, everyone in the neighborhood was lighting off fireworks and that there were a lot of big explosions.
At the conclusion of the bench trial, the trial court found Bowlin guilty of the lesser offense of involuntary manslaughter. After the bench trial, the trial court allowed Daniel Cahill to withdraw as Bowlin s counsel because Bowlin believed that Cahill had been ineffective. The trial court appointed new counsel for posttrial motions and sentencing.
Bowlin moved for a new trial and argued that his attorney had been ineffective in fading to call witnesses in Bowlin’s behalf and in improperly persuading Bowlin to waive a jury trial. After hearing the parties’ arguments and testimony from Cahill, the trial court denied Bowlin’s ineffective assistance of counsel claims. The trial court then sentenced Bowlin to 57 months in prison.
On appeal, this court remanded the case to die trial court for an additional hearing on Bowlin’s ineffective assistance of counsel claims. By the time of the remand hearing, Cahill had been appointed as a judge in Wyandotte County District Court, the same district court where the remand hearing was being held, and had been assigned to the child in need of care court.
Additional ineffective assistance of counsel claims presented at the remand hearing involved Cahill’s failure to move to suppress Bowlin’s interrogation statements and Cahill’s failure to move for another prehminary hearing after the judge made biased statements. After hearing testimony from both Cahill and Bowlin at the remand hearing, the trial court found that Bowlin had not met the first prong of the test for ineffective assistance of counsel and denied his claims.
Ineffective Assistance of Counsel
On appeal, Bowlin first argues that, by his defense counsel’s conduct, he was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. Bowlin points to the following alleged improper conduct by his defense counsel: (1) introducing Bowlin’s highly prejudicial interrogation statement into evidence and fading to suppress the statement; (2) failing to present witnesses on Bowlin’s behalf, including potential defense witnesses and a fire expert; (3) failing to challenge the trial judge’s ruling from the preliminary hearing when the judge made biased comments before making his ruling; and (4) advising Bowlin to waive his right to a jury trial.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
To merely surmise with the benefit of hindsight, that another attorney may have tried the case differently is insufficient. Rather, before counsel’s assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel’s performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel’s deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential and requires consideration of the totality of the evidence before the judge or jury. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. To establish prejudice, the defendant must show a reasonable probabil ity that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in die outcome. Harris, 288 Kan. at 416.
Admission of Bowlins Interrogation Statements
Bowlin maintains that his defense counsel was deficient in not attempting to suppress his incriminating interrogation statements, in which he took responsibility for starting the fire, and in actually introducing the statements into evidence at trial. Bowlin contends that there were two independent bases for suppressing his statements: (1) Bowlin was denied his right to counsel during the interrogation; and (2) his statements were involuntary.
Assertion of Right to Counsel
Bowlin maintains that during his police interrogation, he asserted his right to an attorney under die Fifth Amendment to the United States Constitution and, therefore, any statements made after that assertion should have been suppressed.
Specifically, after 2 hours of interrogation, Bowlin told the interrogators that he thought he was going to have to get a lawyer:
Bowlin: “I think I’m going to have to get a lawyer.”
Officer: “Get a lawyer. Get a lawyer.”
Bowlin: “What else can I do, I am going to jail anyway?”
Officer: “It doesn’t make a difference if you go to jail. It’s how you’re charged that you need to worry about. And I tell you what, your lawyer — ”
Bowlin: “I don’t know what to do, man.”
Officer: “Okay, let’s slow it down.”
Bowlin’s statement — “I think I’m going to have to get a lawyer”— has been found to be ambiguous or equivocal. See State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997) (“I think I need an attorney.”).
Nevertheless, a moment later, the interviewing officer returned to Bowlin’s earlier request for an attorney and asked Bowlin a clarifying question to determine whether Bowlin desired to have counsel present:
Officer: “Do you need a lawyer?”
Bowlin: “Yeah.”
Officer: “Fucking-A right you need a lawyer.” (Emphasis added.)
The interviewing officer deflected Bowlin’s request for an attorney with this misrepresentation:
Officer: “But you know what your lawyer’s going to tell you to do? Don’t say shit. Fuck ‘em. Don’t say shit. Let’s go to trial. And when we go to trial, this is what you’re looking to fight.”
After stating that Bowlin’s trial would be held approximately 8 or 9 months in the future, the interviewing officer emphasized to Bowlin that he was going to lose his chance to tell his side of the story:
Officer: “When that day comes by, you know what I always take pleasure in telling people. Once I leave the courtroom, I am going to look you in the eye and you will know that I have given you the opportunity to tell your side of the story before we went to all this. Alright.”
Bowlin: ‘What I have been trying to tell you.”
Officer: “Yeah, you have been trying to tell me a pack of lies.”
Bowlin: “That’s what happened.”
Officer: “That’s not what happened. That’s not what happened.”
Several minutes later, Bowlin again told the officers that he needed an attorney:
Officer 1: “Detective Lane wants to know if you’d be willing to take a lie detector test on your testimony?”
Bowlin: “Yeah, as soon as I get my lawyer and all.”
Officer 1: “He wants a lawyer first. But, you’ll take one?”
Bowlin: “Yeah.”
Officer 1: “Okay.”
Officer 2: “Are you saying you want a lawyer right now?”
Bowlin: “I need one, I can’t just sit here. I need a lawyer.”
Officer 2: “Okay, so — ”
Officer 1: (undiscemable)
Bowlin: “... I want one because what am I supposed to do?” (Emphasis added.)
Statements similar to those of Bowlin have been determined by courts to be an unambiguous and unequivocal request for counsel. See Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (“Can I get an attorney right now, man?”); State v. Harris, 741 N.W.2d 1, 7 (Iowa 2007) (“We’re going to do it with a lawyer. That’s the way I got to go.”); Com. v. Hilliard, 613 S.E.2d 579, 586 (Va. 2005) (“Can I get a lawyer in here?”).
Instead of stopping the questioning and allowing Bowlin to call an attorney, the officers continued questioning Bowlin about whether he wanted to stop talking to them:
Officer 2: “So, are we done then? You don’t want me to ask any more questions?”
Officer 1: (undiscemable) “I think we’re going to 10-15 minutes.”
Bowlin: “I don’t mind that. I just — you aren’t believing anything I say.”
Officer 2: “I told you what — I’m sitting here trying to understand your point of view.”
The officers continued questioning Bowlin for several minutes and then leg-shadded him nearly hours into the interview. After leg-shackling him, one of the interviewing officers asked Bowlin to clarify his earlier request for an attorney:
Officer 2: “And we were at the point, at this time, you expressed an interest in wanting a lawyer, is that correct?”
Bowlin: “It boks like I’m going to need one.”
Officer 2: “Well, I understand, you’ll need one. But, at this time, do you want to continue talking or do you want to stop?”
Bowlin: ‘Well, we’re waiting on Jeff to come in, ain’t we?”
Officer 2: “So, you want to put everything on hold until Jeff comes in?”
Bowlin: “Yeah. Hell, I’m shaking. Hell, I don’t even know what to say.”
Officer 2: “I’ve just got to be clear. I just need this cleared up. You still want to talk to us at this time?”
Bowlin: “Yeah.”
Officer 2: “Okay.” (Emphasis added.)
At the remand hearing on his ineffective assistance of counsel claims, Bowlin testified about his requests for an attorney during his interrogation as follows:
“[Bowlin:] I said, well, I think I need an attorney. They’re saying, well they just acted like they didn’t care. It wadn’t I had no rights, you know. It was just like, hey, you’re gonna talk to us.
“[Bowlin’s attorney:] Did they get you an attorney at that time?
“[Bowlin:] No.
“[Bowlin’s attorney:] Did they continue to question you even though you asked for an attorney?
“[Bowlin:] They kept questioning.
“[Bowlin’s attorney:] Why did you keep talking to them, Karl, if you wanted an attorney, but they didn’t give you an attorney?
“[Bowlin:] I was scared. I didn’t know what to do. I’d asked for an attorney three or four times and, you know, if that’s your rights to ask for an attorney, then they didn’t give me one, what was I what was I to think? I mean, I was under their control.”
Bowlin also testified at the remand hearing about how the officers were intimidating and did not honor his request for an attorney:
“[Bowlin’s attorney:] Okay. [Were you] [i]n any way intimidated by the language they were using to you?
“[Bowlin:] Without a doubt.
“[Bowlin’s attorney:] And how did that affect why you continued to talk to them after asking for an attorney?
“[Bowlin:] Yeah. I mean, I tried to ask for an attorney. Theythey didn’t want to honor it. I justyou know, I didn’t know what to do.
“[Bowlin’s attorney:] Did you feel you had any option to stop then even though they hadn’t gotten you an attorney?
“[Bowlin:] No. I justwell, I asked. They didn’t give me one. I’m bound to talk. That was it.”
The State asserts that Bowlin’s right to counsel under the Fifth Amendment to the United States Constitution was not violated because Bowlin never made an unambiguous request to cease the interview and speak with an attorney.
Our Supreme Court in State v. Walker, 276 Kan. 939, 944-45, 80 P.3d 1132 (2003), held that invocation of the Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), “may be asserted at any time and ‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.’ [Citation omitted.]” This assertion of the Fifth Amendment right to counsel has two aspects: (1) the suspect must articulate his or her desire to have an attorney present sufficiently clearly so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney; and (2) the request must be for assistance with the custodial interrogation, not for later hearings or proceedings. Walker, 276 Kan. at 945.
Quoting from McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), our Supreme Court recently stated that once a suspect invokes the Fifth Amendment right to counsel,
“ ‘not only must the current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him” [citation omitted], — which means . . . that counsel must be present [citation omitted]. If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights” [citation omitted].’ ” State v. Appleby, 289 Kan. 1017, 1045, 221 P.3d 525 (2009).
When a defendant argues that he or she requested the assistance of an attorney, the timing and the content and context of a reference to counsel may help determine whether there has been an unambiguous assertion of the right to the assistance of an attorney in dealing with a custodial interrogation by law enforcement officers. Appleby, 289 Kan. 1017, Syl. ¶ 13.
Although under Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994), an officer is not required to ask clarifying questions to ambiguous post -Miranda statements, the Davis Court recognized that it was “good police practice” for interviewing officers to seek clarification of suspects’ ambiguous or equivocal reference to an attorney. Clarifying questions protect the suspects’ rights by ensuring that they get an attorney when they want one and minimizing later judicial second-guessing as to whether the suspects were actually invoking their right to counsel. 512 U.S. at 461.
Once the interviewing officer sought clarification of Bowlin’s equivocal request — “I think I’m going to have to get a lawyer”— the officer could not ignore or deflect Bowlin’s affirmative answer to the officer’s question: “Do you need a lawyer?” At that point, clarification occurred. Nevertheless, instead of acknowledging Bowlin’s affirmative answer to the officer’s question, — “Do you need a lawyer?” — the officer deflected Bowlin’s affirmative answer. Moreover, the officers used this opportunity to tell Bowlin that his chance to cooperate would never be better than it was that day because the next morning, they were going to present all the evidence that they had gathered against him to the district attorney.
In this case, there can be no doubt that the officers understood that Bowlin had made a request for an attorney for assistance with the custodial interrogation. After Bowlin’s equivocal statement, “I think I’m going to have to get a lawyer,” the interviewing officer sought clarification of Bowlin’s statement, received an affirmative response from Bowlin that he did need an attorney, and even went so far as to agree with Bowlin that he needed an attorney. Several minutes later, another interviewing officer further clarified that Bowlin wanted a lawyer “right now” during the custodial interrogation. Nevertheless, the officers did not cease Bowlin’s interrogation and honor his request for counsel. Rather, the officers continued questioning and badgering Bowlin until 23 minutes after his first request for counsel, and after his legs had been shackled, he agreed that he still wanted to talk with the officers.
Because the police officers chose not to honor Bowlin’s assertion of his Fifth Amendment right to counsel, any statements made by Bowlin after his request for an attorney were involuntary and inadmissible at trial. As Bowlin points out, his most damaging statements in which he admitted that his rocket had hit the house and might have gone down inside the house and started the fire were all made after he asserted his Fifth Amendment right to counsel.
Involuntariness of Statement
Bowlin also argues that his trial attorney was ineffective for failing to move for suppression of his statements on the basis that they were involuntary.
In determining whether a statement is voluntary, courts look at the totality of the circumstances. State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007). Our Supreme Court has recently set forth a nonexclusive list of factors to be considered, which include: (1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language. State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009).
In describing the weight to be given to the individual factors, our Supreme Court, citing Green v. Scully, 850 F.2d 894, 902 (2d Cir. 1988), has stated as follows:
“ ‘[T]hese factors are not to be weighed against one another on a balance scale, with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even after analyzing such dilution, if any, a single factor ora combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect’s will was overborne and the confession was not therefore a free and voluntary act. [Citation omitted.]’ [Citation omitted.]” Sharp, 289 Kan. at 81.
Thus, the essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the accused’s free and independent will. State v. Swanigan, 279 Kan. 18, 23-24, 106 P.3d 39 (2005). “ ‘Coercive police activity is a necessary predicate to the finding that a confession is not voluntary.’ Colorado v. Connelly, 479 U.S. 157, 167, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986).” State v. Sharp, 289 Kan. 72, 80-81, 210 P.3d 590 (2009). The United States Supreme Court has used a “coerced confession” interchangeably with an “involuntary” confession. See Arizona v. Fulminante, 499 U.S. 279, 288, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991). As a result, coercion can include inducement by promise, as well as by threat. Sharp, 289 Kan. at 81.
Bowlin maintains that his interrogators unduly pressured him to state that he had started the fire. Bowlin contends that despite his repeated protests of innocence, the two detectives and the two fire investigators repeatedly told him that he was the one responsible for the fire, and he eventually relented to their demands and confessed.
Indeed, the recorded interrogation, which lasted 3 hours and 11 minutes, demonstrates that the officers’ whole intent during the interrogation was to wear Bowlin down until they got him to admit that he had thrown M-80’s towards the DeMotte house and that an M-80 he had thrown had caused the fire.
Early on in the interview, as it became clear to the detectives that Bowlin was not going to confess that he had caused the fire, the detectives centered on a theme that Bowlin would be charged with a much harsher offense unless he went along with their theory in the case:
Michaels: “What I’m tiying to get you to understand, Karl, is you can play this however you want. But what I don’t want you to play it out is this and say hey, you know what, y’all have got me fucked up, that ain’t my work. Because what’s going to happen is now you’re going to be leaving us with litde to no choice at all to say man, ihat’s a cold-blooded mother fucker. And then you’re going to end up being charged with something that I don’t think that you did intentional.”
Bowlin: “I didn’t.”
Later, when Bowlin stated that it would be crazy to throw M-80’s at someone’s house, the interrogating officer told Bowlin that was why he needed to admit it was an accident:
“You know what? You’re right. It’s fucking crazy. But what I’m tiying to get you to understand is that’s how a judge and a jury is going to look at tins, it’s fucking crazy. Now, you know what you need to do? Damage control, and this is how we go about it. Sure, I was back there shooting fireworks. Everybody in the fucking neighborhood knows me.”
As Bowlin continued to deny that his firework had caused the fire, the interviewing officer indicated that he would never believe Bowlin:
“But what I’m trying to get you to understand is not for a moment will I not believe that this is your work. Because I have 7 independent witnesses that corroborate the same story that had no way of getting together and say, hey okay, this is the story.” (Emphasis added.)
The interrogating officer continued to reference the seven witnesses, some of whom were children, that he allegedly had against Bowlin and told Bowlin that if he did not go along with the detectives’ theory, then he could be charged with a higher offense. The interrogating officer went so far as to explain what he needed to hear from Bowlin:
“In the eyes of a jury, I’m just preparing you for this guy. When you put a litde kid on the stand who don’t want to be involved that’s balling his eyes out and is going to have to point at a big motherfucker like you but has still got the balls and the backbone to say what they saw that’s going to be a tough road for you to hold onto. And I’m telling you, if it were me, if these guys were giving me this scenario, I’m telling you what would happen to me, I’d say look, guys, I truly fucked up, it was stupid. I was throwing M-80’s at the house, I didn’t mean for anything to happen. But when one of my shit got in there, I saw that it started smoking. I saw that the fire started. At that point, I didn’t know what to do. I fucking freaked out. Okay. You know what that does? First of all, it at least tells me that you have some heart inside, some backbone, but you have some compassion for what went on here. Cause I’m telling you if you say that everybody here has got me fucked up, this ain’t my work, you know what’s going to happen? You’re going to find yourself over there charged probably with a negligent homicide, okay, rather than maybe involuntary manslaughter, accidental homicide, I don’t know all the fucking rankings of all this shit. But I’m telling you this is not the time to deny what 7 people fucking saw.”
As Bowlin continued to protest his innocence and to deny that he had thrown an M-80 at the house, the detectives increased their coercive practices:
Officer: “Who determines guilt is the 12-person jury but what’s going to happen is when the witnesses all identify you and say what they saw you throwing M-80’s at this house. Then, all of a sudden, an accident turns into well maybe he was pissed off at this cocksucker that, you know, threw an M-80 at his girlfriend two days ago and it’s time for a little payback.”
Bowlin: ‘Well, it sounds like I’m already hung the way you explain.”
Officer: “No, what I’m trying to get you to understand is we’re not there. We’re not there. But you know what, Karl, you’re not talking, you’re not giving your side of the story. You know what I’m hearing? I’m hearing this third-grade school yard bullshit that it wasn’t me, that you’ve got the wrong guy.”
Bowlin: ‘We were lighting fireworks. We were doing it.”
Officer: “Karl, we’re over that.”
Officer: “What I want to hear from you is, okay ... I want you to realize I didn’t mean anything by it, it was an accident, help me, help me through it. Because I know my fucking M-80’s started the fire. That’s what I want to hear because that’s what 7 people told me. That’s what I want to hear. I want your fucking heart of stone to soften up a little bit and say, hey, help me out detective— because it was a fucking accident. It was an accident. I didn’t mean for it to happen. I didn’t mean for anyone to get hurt. But, you know what, I threw an M-80 up there and before I know it, I said aw shit, because people said that you said that, and we know that your M-80 started that fire, Karl. We know that. You did. You did, Karl.”
Officer: “Karl, what I’m trying to get you to understand is you need to man up, balls and backbone and say look, Detective Michaels, you got me but it was a fucking accident. Everybody understands that. Everybody understands it’s an accident. I’m not trying to put you there. I’m telling you what 7 people, all with their own eyes, saw you do.”
Officer: “I’m going to tell you what. You stand in front of a fucking jury and a judge and 7 witnesses and you still deny this, man, they’re going to hammer you . . . I’ll be retired before you get out of the penitentiary.”
Bowlin: “I hear you.”
Officer: “On the flip side of that, I’m, telling you if I was sitting over there and I would be quiet. But once you smell this out and all the evidence points at me. You know what I’d sayP Two words, two words, damage control.” (Emphasis added.)
As the interrogation progressed, the officers continued telling Bowlin that he had thrown the M-80 that had caused the fire, that it had been an accident, and that Bowlin needed to admit these things so he would not be convicted of a harsher crime. The interrogating officers used profanity throughout the interview and even resorted to yelling at Bowlin shortly after he asserted his right to an attorney. The interview was conducted by four people and, despite the fact that Bowlin had been cooperative, the officers decided to leg-shackle him nearly 2Vz hours into the interview.
As discussed previously, although Bowlin repeatedly asserted his right to counsel under the Fifth Amendment to the United States Constitution, the interrogators would not honor his request. Instead, the interrogators indicated to Bowlin that he would not get another opportunity to tell “his side” of the story consistent with the interrogators’ theory of the case. In essence, Bowlin had to choose between getting an attorney and risking being charged and convicted of a severe offense or cooperating with the police and obtaining a more favorable result.
Towards the end of the 3-hour and 11-minute interview, an officer, who allegedly had just met with Jeffrey, one of Tina Hodge’s family members, called in on speakerphone. In continuing with the interrogators’ theme, the officer stated:
Officer: “Jeffrey said that there was you, Terry, and two other guys; that Terry threw one M-80 that was up towards the street; that you threw one in the tall grass by the fence and then you threw one over the fence towards the house. He said it was an accident, that you guys freaked out after the fire started and that you all knew that the M-80 caused the fire. This is your time. I mean, you’ve got your own family telling the truth. You’re either going to screw yourself by lying and then get screwed.”
Bowlin: “I know.”
Officer: “Or you can tell the truth and you’re still going to be in trouble but it’s not going to be as bad. If you lie, it’s going to look a lot worse. Your own people’s telling the truth on you.”
Bowlin: “Well, whatever he says, he was there.”
Officer: “Yeah, well, and we’re going to get with the guy from Wichita. I mean, it’s going to be locked down. You’ve got four or five other witnesses. You need to be a man and step up to the plate and tell the truth. It’s going to be awful damn hard to do, it’s going to be tough for you to do. You need to do it and get this over with. It ain’t going to go away.”
Bowlin: “I hear you.”
Officer: “If you tell the truth, it’s going to be a hell of a lot better on you. I can promise you that. ■ ■ . Tina’s cousin Jeffrey said that it was an accident. It was not intentional. You weren’t saying fuck those people I want their house to bum down. Because we’ve got a person that was saying you was talking shit while you were doing it. One of the witnesses was saying you was cussing and all kinds of shit. This Jeffrey is saying that you wasn’t cussing, you wasn’t drunk, you’d been drinking but he said you wasn’t drunk. And, uh, it was just a fucking accident. That the kid had thrown an M-80 at ijour old lady and you guys were playing around shooting bottle rockets at each other, and you was just fucking around. So, that’s the bottom line.”
Bowlin: “I hear you.”
Officer: “The ball’s in your court. You need to tell these guys the truth, though, and get this over with. I’m telling you, it’s going to be a lot better for you.”
Bowlin: “You just about heard it right there, didn’t you?” (Emphasis added.)
As the interviewing officer was going over Jeffrey s alleged statement with Bowlin, Bowlin stated, “I ain’t going to argue because 1 know if I argue with that, it’s going to be worse on me.” (Emphasis added.)
The unmistakable message by the interrogators was that if Bowlin refused to confess to their theory of the case, the result would be a harsher charge and conviction for Jewell’s death in the house fire. Throughout the interrogation, the officers were not interested in what Bowlin had to say about the events surrounding the house fire. They were intent on getting Bowlin to tell them what they wanted to hear and to confess to his involvement in the house fire. This became even more evident when the interrogators denied Bowlin his Fifth Amendment right to counsel. As their tactics became harsher and the interrogation extended on for 3 hours, the interrogators were able to wear Bowlin down and get him to admit that he had caused the fire. Such tactics were coercive and constituted police overreaching.
A review of the lengthy interrogation that took place in this case leads this court to determine that Bowlin’s will was overborne and the overreaching police conduct was causally related to the confession. When looking at the totality of the circumstances, we find that Bowlin s statements were involuntary. Accordingly, the previously mentioned facts furnish another reason that requires the suppression of Bowlin’s statements on July 2, 2006.
Trial Counsel’s Testimony
At the remand hearing, Bowlin’s defense counsel testified that he had reviewed the interrogation tape numerous times. According to defense counsel, he had considered moving to suppress the interrogation tape and had discussed that with Bowlin. Nevertheless, defense counsel testified that after preliminary hearing, he came to the conclusion that it would be more beneficial to have the tape admitted into evidence.
According to defense counsel, the tape showed how the investigators were pushing a theory for 3 plus hours during the interrogation that the State was willing to abandon after preliminary hearing. Defense counsel pointed out that the State’s theory had been that Bowlin had either intentionally started the fire or recklessly done so in aiming fireworks intentionally at the house. Defense counsel testified that he thought it was very powerful to show that the State was convinced early on that the house fire had occurred a whole different way than what the prosecutor later argued in court.
Defense counsel asserted the admissions made by Bowlin in the interrogation tape were either already present in the evidence or did not contradict what Bowlin would have testified to at trial if he were willing to testily. Defense counsel testified that he thought that Bowlin’s admissions showed that he was not trying to he to the police. Defense counsel further testified that although Bowlin was not “particularly legally savvy,” he insisted that Bowlin make the decision about the admission of the tape.
Based on defense counsel’s testimony at the remand hearing, the State attempts to categorize defense counsel’s failure to move to suppress the interrogation tape as trial strategy.
To some extent, defense counsel’s decisions regarding trial strategy are protected from scrutiny by this court. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. [Citation omitted.]” State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004).
Nevertheless, defense counsel’s assertion that it was “trial strategy” to not move for suppression of Bowlin’s interrogation statements would be a better argument if the case had been tried to a jury. Defense counsel could have made a more effective argument to a jury that the investigators’ confusion as to what caused the fire created a reasonable doubt as to the causation element of the charged crime. The record indicates, however, that weeks before the scheduled trial date, defense counsel began to consider the option of waiving jury trial and later discussed it with Bowlin. Defense counsel should not have stipulated to the admission of Bowlin’s interrogation statements if he was going to advise Bowlin to waive jury trial.
Moreover, contrary to defense counsel’s testimony, the most damaging of Bowlin’s statements occurred after Bowlin had repeatedly invoked his Fifth Amendment right to counsel. In addition, after Bowlin invoked his right to counsel during the interrogation, an officer introduced alleged statements from Jeffrey, who was Bowlin’s girlfriend’s family member, that he had seen Bowlin throw a rocket in the direction of the DeMotte house and that Bowlin knew that his rocket had caused the fire. Such alleged statements were damaging to Bowlin’s defense as they implicated Bowlin as the perpetrator of the crime and were not subject to cross-examination. In addition, as discussed previously, the appellate record indicates that Bowlin’s statements were also involuntary because they were obtained by overreaching police conduct. As a result, defense counsel should have moved to suppress the entire interrogation tape and not just those statements made after Bowlin’s requests for an attorney.
Further, the record demonstrates that defense counsel was able to show, through other evidence, that the fire investigators and the detectives were uncertain about what actually started the fire and had originally been set on their theory that an M-80 had been thrown towards the DeMotte house and had caused the house fire. Specifically, fire investigator Jones testified that their theory early on in the case was that an M-80 had been thrown by Bowlin towards the house. According to Jones, it was not until after preliminary hearing that the focus shifted from an M-80 to a rocket as being the cause of the house fire. In addition, fire investigator Long testified that during Bowlin’s 3-hour interview, Bowlin had been questioned about throwing M-80’s at the house. According to Long, although Bowlin had indicated during the interview that it was a bottle rocket going over the fence, “at that time, it was an M-80 we were talking about." Instead of stipulating to the admission of Bowlin’s interrogation tape, defense counsel could have questioned the investigators further about their pursuit of the theory that an M-80 had caused the fire throughout Bowlin’s interrogation.
At the remand hearing, defense counsel maintained that Bowlin’s interrogation statements were not veiy helpful to the State because the State already had evidence that Bowlin had fired a rocket that went directly into the basement of the DeMotte house and started the fire. Nevertheless, what defense counsel failed to point out was the State had major credibility obstacles to overcome with its evidence.
Specifically, although Garrison testified at trial that he saw Bowlin throwing rockets at the house on the evening of July 2, 2006, his sworn testimony at preliminary hearing was that he had not seen Bowlin throwing any fireworks towards the house directly. Importandy, the trial court did not even reference Garrison’s testimony in finding Bowlin guilty of involuntary manslaughter.
Although the trial court did reference Nino Morse’s testimony and statements to others to support Bowlin’s conviction, Morse admitted that he could not be very sure about exactly what happened during the incident in question because he was “pretty high and pretty drunk.” Moreover, Morse’s testimony indicated that he had not seen Bowlin’s firework go inside the DeMotte house but had seen it fly towards the left side of the DeMotte house. In addition, the evidence showed that Morse had a warrant out for his arrest when the incident in question occurred and that Morse had implicated Bowlin as causing the house fire only after another person pointed to Morse as causing the fire.
Because Garrison’s and Morse’s statements, standing alone, were not enough to create a solid case by the State, Bowlin’s interrogation confession was of vital importance to the State. When faced with serious credibility flaws in the State’s evidence, defense counsel should have moved to suppress the interrogation tape and should not have stipulated to its admission into evidence at trial. As recognized in 1 Goldstein, Trial Techniques, The Criminal Case § 4:30 (3d ed. 2009), “[t]he introduction of a confession . . . will often be one of the hardest burdens for defense counsel to contend with. Therefore, a careful study to determine its admissibility is always important.” Here, based on the rest of the evidence presented by the State, the suppression of Bowlin’s interrogation statements would have dealt a serious, if not fatal, blow to the State’s case against Bowlin.
The importance of Bowlin’s interrogation tape to the State’s case is evident when looking at the trial judge’s statements in finding Bowlin guilty of involuntary manslaughter. After discussing Nino’s statements shortly after the fire and his testimony in court, the trial court focused extensively on Bowlin’s interrogation statements:
“Next we turn to the defendant’s taped statements. Though lengthy, several things remain constant. During this knowing and voluntary confession, the defendant repeatedly taires responsibility for unintentionally causing the fire. His fireworks and his actions caused the fire.
“As the questioning turned, his focus became narrower and more to the point. He was quoted as saying, I shot a rocket, a big rocket with a bigger stick. It was that big around, indicating a gesture. I threw a rocket. It hit the house and came down. It might have went right up on in there. One of my fireworks started the fire. I was holding it waiting for the wick to go down. It was a big thick rocket.
“He also stated during this time, in his visual proximity, there was no one else in the immediate area shooting fireworks. He didn’t see anybody run from the back of the house. He didn’t see any children run or in the backyard. He believed that the rocket did it and maintained that throughout his confession.” (Emphasis added.)
Under the circumstances present in this case, we cannot dismiss as trial strategy defense counsel’s decision to not even attempt to suppress the only statements from Bowlin himself admitting that he thought his rocket caused the house fire. Upon considering the trial court’s heavy reliance on Bowlin’s interrogation confession, we conclude that there is a reasonable probability that, but for defense counsel’s deficient conduct, the result of the proceeding would have been different.
Because we have determined that defense counsel’s decision to not move for suppression of the interrogation tape constituted reversible error, we need not address Bowlin’s remaining claims of ineffective assistance of counsel.
Sufficiency of the Evidence
Next, Bowlin contends that there was insufficient evidence from which a jury could conclude that he was guilty beyond a reasonable doubt of involuntary manslaughter. Although we are reversing and remanding for a new trial, we must also address Bowlin’s sufficiency of the evidence argument to determine whether retrial is permissible under the Double Jeopardy Clause. See State v. Elnicki, 279 Kan. 47, 68, 105 P.3d 1222 (2005).
When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether after reviewing all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).
In order for Bowlin to be convicted of involuntary manslaughter, the State needed to prove that Bowlin unintentionally killed Jewell Morse; that it was done recklessly; and that this act occurred on or about July 2, 2006, in Wyandotte County. See K.S.A. 21-3404(a); PIK Crim. 3d 56.06.
Bowlin focuses on the causation element of involuntary manslaughter and contends that the State failed to prove that his actions caused Jewell’s death.
Although the fire investigators in this case were not able to conclusively determine the exact cause of the fire, they were able to eliminate several causes of the fire and their opinion was that a rocket could have caused the house fire. The State presented evi dence from witnesses who saw Bowlin throw a large rocket-type firework that went towards the DeMotte house.
In considering the evidence in this case, we bear in mind that a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Scaife, 286 Kan. 614, 618-19, 186 P.3d 755 (2008). After reviewing all of the evidence in this case in the light most favorable to the State, we are convinced that — even without Bowlin’s confession — a rational factfinder could have found Bowlin guilty beyond a reasonable doubt.
Reversed and remanded for a new trial. | [
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Hill, J.:
In this appeal, we affirm the trial court’s determination of paternity and child support award in this case of a recently emancipated young woman seeking judicial determination of her parentage. Because the Kansas Parentage Act allows a child to bring an action to determine a father-child relationship, despite any agreement to the contraiy between the presumed father and the child’s mother, we hold the parents’ divorce decree did not bar this action. Also, considering the genetic testing results and the lack of any evidence indicating paternity in another man, we affirm the trial court’s finding of paternity. Finally, since no provision for child support was made in the parents’ divorce case and the Parentage Act authorizes retroactive awards for child support, we uphold the district court’s child support award.
The parties do not dispute the facts.
A few days after her 18th birthday, Jessica J. Janzen filed a petition in the Marion County District Court alleging Kenneth A. Janzen was her father. Using the Kansas Parentage Act, Jessica sought judicial determination of her parentage and a court order for support and reimbursement of expenses. Kenneth Janzen denied he was Jessica’s father and, in turn, sought damages from her mother, Diana Kay Willliams, for misrepresenting that he was Jessica’s father.
Jessica Janzen was bom on October 20, 1988. Her mother is Diana Kay Williams (f/k/a Hamburger). When Jessica was bom, Diana and Kenneth were married and Kenneth was listed as Jessica’s father on her birth certificate. Then, in 1989, Kenneth and Diana divorced. They made a separation agreement which recited that Kenneth was not Jessica’s father. We note in passing that both parents were represented by counsel and no guardian ad litem represented Jessica in the divorce. Ultimately, the district court approved their agreement and granted a divorce. (We also note that for some reason unknown to us, the parties have failed to include the divorce decree or separation agreement in the record on appeal. We presume the district court had access to these documents since the court quoted from them in its memorandum opinion.)
After Jessica’s Parentage Act case commenced, the district court ordered genetic testing. The results of the testing indicated a 99.99% probability that Kenneth was Jessica J. Janzen’s father. After hearing that, the court found Kenneth was Jessica’s father. The court also decided that Kenneth had a duty to support her for the period beginning when he separated from her mother in January 1989 until the time Jessica graduated from high school in June 2007. The district court decided to award Ms. Janzen $62,920 for support based on a calculation of $286 per month for each month during the entire period. On appeal, neither party challenges the amount of support awarded nor how it was computed. Therefore, questions arising from thé award are not before us.
i„lisappJ.taá]ifflii)ÉMflffipfte'tohisview’ tire finding of the district court in his divorce case that he was not Jessica’s father rebutted the statutory presumption of paternity found in the Kansas Parentage Act, K.S.A. 38-1114. Also, he contends the finding in the divorce case that he was not Jessica’s father was, in actuality, a support order finding that he owed no support to Jessica. This means, in his view, the court in the Parentage Act case was powerless to modify a prior support order after it has come due.
This is a case arisingfrom the Kansas Parentage Act, not a divorce case.
The Kansas Parentage Act is found at K.S.A. 38-1110 et seq. Pertinent to this case is K.S.A. 38-1115, a law that gives general guidance about who may bring an action under the act:
“(a) A child or any person on behalf of such a child, may bring an action:
(1) At any time to determine the existence of a father and child relationship presumed under K.S.A. 38-1114 and amendments thereto ....
“(d) Any agreement between an alleged or presumed father and the mother or child does not bar an action under this section.”
Since Jessica was bom while her parents were married, a statutory presumption found at K.S.A. 38-1114 comes into play. That law establishes the presumption of paternity and describes how it is to be applied and how it may be rebutted:
“(a) A man is presumed to be the father of a child if:
(1) The man and the child’s mother are, or have been, married to each other and the child is bom during the marriage ....
“(b) A presumption under this section may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man or as provided in subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence.
“(c) If two or more presumptions under this section arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child, shall control.”
We find no evidence in the record that rebuts the presumption that Kenneth Janzen is the father of Jessica Janzen.
Basically, Kenneth Janzen waved his divorce decree before the district court in the paternity action contending it rebutted the statutory paternity presumption repeated above. Apparently, he contends that there must have been clear and convincing evidence before the court in 1989 when his divorce was granted and therefore the court in 2008, when the paternity action was tried, must consider the same evidence as clear and convincing in this case. We find this argument unpersuasive for two reasons. First, in the divorce case, mother and father apparently stipulated that Kenneth was not Jessica’s father based on their stipulation agreement. Second, if any evidence was presented in the paternity action, it is not in the record. Without such a record, Kenneth Janzen’s claim of error fails. See Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008).
Going further, we are not persuaded that the divorce decree rebuts the paternity presumption under K.S.A. 38-1114(b). While it is a court decree, it does not establish paternity in another man as it is set out in the statute. K.S.A. 38-1114(b). We must conclude the trial court properly ignored the 1989 divorce decree when deciding paternity here.
The divorce decree was not an original support order.
Kenneth Janzen argues the 1989 divorce decree finding he was not Jessica’s father was, in reality, an original support order. Therefore, under the general rule, any subsequent support orders cannot modify amounts past due under the original order.
We have no quarrel with Kenneth Janzen’s contention that past due support amounts in divorce cases cannot be retroactively modified. See In re Marriage of Bunting, 259 Kan. 404, 410, 912 P.2d 165 (1996). Where the court commented that K.S.A. 60-1610(a)(l) permitting child support modifications retroactive only to a month after the motion to modify was filed “codifies a longstanding common-law rule.” 259 Kan. at 410.
Unfortunately, we cannot read the divorce decree in question because it was not included in the record on appeal. The appellant has the burden to designate a record sufficient to establish the claimed error and Kenneth Janzen has failed in this regard. The district court in its memorandum opinion did quote from the decree but made no mention of support. Why would it? We assume the decree was silent about support and therefore could not be considered an original support order. It seems clear that the divorce decree merely put Jessica in a position equivalent to one bom out of wedlock.
But we must now state the obvious. This is not a divorce case. It is a paternity action governed by the Parentage Act. Jessica can maintain this action despite the divorce decree and separation agreement. In the case In re Marriage of Ross, 13 Kan. App. 2d 402, 772 P.2d 278 (1989), aff'd in part and rev'd in part on other grounds 245 Kan. 591, 783 P.2d 331 (1989), this court held an action to determine paternity brought by a guardian ad litem for a child in a divorce case could continue since the child was not a party to the divorce and was not given a full and fair opportunity to litigate the issue of paternity. 13 Kan. App. 2d at 408. The Supreme Court reversed another part of the Ross decision but specifically affirmed this holding. 245 Kan. at 592.
Obviously, Jessica was not a party to her parents’ divorce so res judicata does not bar her from bringing this action. But more importantly the Parentage Act itself says she is not constrained by the agreement of her mother and father. See K.S.A. 38-1115(d).
Retroactive support orders are permissible in this context.
Because this is an action under the Kansas Parentage Act, the cases dealing with support orders and their modification in divorce cases are irrelevant. The most notable difference between divorce support orders and support orders in Parentage Act cases is that the Parentage Act permits retroactive awards of support that are prohibited in divorce cases. K.S.A. 38-1121 provides:
“(e) In entering an original order for support of a child under this section, the court may award an additional judgment to reimburse the expenses of support and education of the child from the date of birth to the date the order is entered. If the determination of paternity is based upon a presumption arising under K.S.A. 38-1114 and amendments thereto, the court shall award an additional judgment to reimburse all or part of the expenses of support and education of the child from at least the date the presumption first arose to the date the order is entered, except that no additional judgment need be awarded for amounts accrued under a previous order for the child’s support.”
Such retroactive awards have been upheld. See Skillett v. Sierra, 30 Kan. App. 2d, 1041, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002), and In re Parentage of Shade, 34 Kan. App. 2d 895, 903, 126 P.3d 445, rev. denied 281 Kan. 1378 (2006).
Finally, because we have ruled the divorce decree was not an original support order, the holding cited by Kenneth Janzen in Harder v. Towns, 1 Kan. App. 2d 667, 573 P.2d 625 (1977), rev. denied 225 Kan. 844 (1978), is inapplicable here. In Harder, a panel of this court ruled an attempt by the SRS to recover support from a parent where a court had approved an agreement that the father need not pay support was an impermissible collateral attack on a judgment. 1 Kan. App. 2d at 670. In this case, Jessica Janzen is not arguing an order is invalid, she is, instead, bringing an independent action permitted by law.
In conclusion, we hold that the trial court properly determined Kenneth Janzen was the father of Jessica Janzen. We also affirm the court’s award of support.
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Marquardt, J.:
Milano’s, Inc. (Milano’s) appeals the district court’s order affirming the Kansas Department of Labor’s (KDOL) decision that the Club Orleans’ entertainers are employees and not independent contractors under the Kansas Employment Security Law (KESL), K.S.A. 44-701 et seq. We affirm.
In July 2002, Milano’s acquired a controlling interest in Club Orleans, a gentlemen’s club. In 2004, Milano’s designated their entertainers as independent contractors.
In response to an unemployment claim submitted by a Milano’s entertainer, the Unemployment Tax Contributions Unit of the KDOL began an investigation to determine whether Milano’s entertainers are employees or independent contractors. After the investigation, the KDOL auditor determined that the entertainers are employees for unemployment tax purposes.
Milano’s requested an administrative hearing with a KDOL hearing officer. After hearing arguments and examining the evidence, the hearing officer determined the entertainers received wages as defined by K.S.A. 2008 Supp. 44-703(o). Because the entertainers received wages, they are employees under K.S.A. 2008 Supp. 44-703(i)(3)(D) unless they fall within an exception under K.S.A. 2008 Supp. 44-703(i)(3)(D)(i) and (ii).
The hearing officer cited Club Orleans’ house rules and concluded “there are sufficient indicia of control, or at least the right to control, that the facts of this matter point to an employer-employee relationship.” The hearing officer determined that although the owner of Milano’s testified that customers frequented Club Orleans for the “good atmosphere, good lighting and good food,” the facts indicate that the “atmosphere largely derives from and is based upon the presence of its semi-nude dancers.” The entertainers received wages for services as defined by K.S.A. 2008 Supp. 44-703(i)(3)(D) and were not exempt under any exception; therefore, the entertainers are employees under the KESL. The hearing officer ordered Milano’s to implement a reporting procedure for the entertainers’ tips and to begin paying unemployment insurance.
Milano’s filed a petition for judicial review, claiming the hearing officer’s order disregarded undisputed facts and made findings of fact not supported by substantial competent evidence. Milano’s also alleged the hearing officer incorrectly interpreted K.S.A. 2008 Supp. 44-703(i)(3)(D).
Quoting K.S.A. 2008 Supp. 44-703(o), the district court agreed with the hearing officer s order that the entertainers’ tips constituted wages under the KESL. Additionally, the district court noted that the entertainers were required to complete an application with Milano’s before they did any entertaining and to agree to abide by Milano’s house rules. Based on this application process, the district court reasoned that a valid contract existed between Milano’s and the entertainers. Thus, the burden shifted to Milano’s to prove the entertainers were free from its control or direction and the entertainers’ performances were outside Milano’s usual course of business.
The district court reviewed the statutory exceptions in K.S.A. 2008 Supp. 44-703(i)(3)(D)(i) and (ii) and noted several areas in which Milano’s maintained the right to control — place to perform, customers, cover charges, tips, schedules, required to accept drinks from customers, shifts, supplies, and fees charged for certain services. Thus, the district court concluded that Milano’s retained greater control over when and how the entertainers worked for Club Orleans than did the entertainers. The entertainers were a significant part of the atmosphere at Club Orleans, and their presence during their shift, along with their performances, fell within Milano’s usual course of business.
The district court affirmed the KDOL hearing officer’s order declaring that the entertainers are Milano’s employees. Milano’s appeals.
Application of K.S.A. 2008 Supp. 44-703
In reviewing a district court’s decision that reviewed a state agency’s action, the appellate court must first determine whether the district court followed the requirements and restrictions placed upon it. Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005).
The Kansas Judicial Review Act (KJRA), specifically K.S.A. 77-621, controls the standard of judicial review of an administrative agency’s action. The district court’s review of a final order of the Employment Security Board of Review is governed by K.S.A. 77-601 et seq., and this court reviews the agency’s decision in the same manner and with the same statutory standards as the district court. Siler v. Kansas Employment Security Bd. of Review, 31 Kan. App. 2d 1071, 1073, 77 P.3d 1002 (2003).
Under K.S.A. 77-621(c)(4), this court may grant relief from the KDOL’s action if it determines the KDOL erroneously interpreted or applied the law. Resolution of this argument requires interpretation of K.S.A. 2008 Supp. 44-703(i)(l)(B) and K.S.A. 2008 Supp. 44-703(i)(3)(D). The interpretation of a statute is a question of law over which this court has unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
This court presumes an administrative agency action is valid. Jones, 279 Kan. at 140. Although an administrative agency’s interpretation of a statute is persuasive and entitled to judicial deference, it is not binding on this court. This court will correct the administrative agency’s interpretation if it is erroneous as a matter of law. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
The Kansas Supreme Court recently reiterated the rules of statutory interpretation in In re Tax Exemption Application of Mental Health Assn. of the Heartland, 289 Kan. 1209, 1216, 221 P.3d 580 (2009):
“ ‘The fundamental rule of statutory interpretation is that a court must give effect to the intent of the legislature as expressed. Thus, when the language of a statute is plain and unambiguous, a court must give effect to that language rather than determine what the law should or should not be, speculate as to legislative intent, add something not readily found in the statute, resort to canons of statutory construction, or consult legislative history.’ Polson v. Farmers Ins. Co., 288 Kan. 165, Syl. ¶ 2, 200 P.3d 1266 (2009).”
Because Milano’s is questioning the validity of the agency’s action, it bears the burden of overcoming the rebuttable presumption of validity. See K.S.A. 77-621(a)(l); Jones, 279 Kan. at 139-40.
The KESL requires employers to set aside unemployment reserves for the benefit of individuals who become unemployed. Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Resources, 272 Kan. 265, 269, 32 P.3d 1146 (2001). The set aside is to protect the public good and prevent economic insecurity resulting from involuntary unemployment. Jones, 279 Kan. at 149. To this end, the KESL provides that the Secretary of the KDOL may tax employers and place the money in the Kansas employment security fund. Harford, 272 Kan. at 269.
K.S.A. 2008 Supp. 44r703(i)(3)(D) defines “employment” as:
“Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the secretary that: (i) Such individual has been and will continue to be free from control or direction over the performance of such services, both under the individual’s contract of hire and in fact; and (ii) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed.”
Initially, Milano’s claimed that the KDOL erroneously interpreted or applied K.S.A. 2008 Supp. 44-703(o) because “[a]n employer is responsible for tips included in wages under 703(o) only if there is a contract for hire in the first place.” Milano’s claims the entertainers’ tips are “self-employed wages,” but reasons that “if there is no employment relationship, the fact that the entertainers receive tips is irrelevant to Milano’s supposed responsibility under the [KESL].”
Milano’s fails to cite any authority for its assertions; therefore, it is unclear how the KDOL erroneously interpreted or applied K.S.A. 2008 Supp. 44-703(o). An issue not briefed by the appellant is deemed waived or abandoned. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).
The language of the statute does not suggest that the KDOL must prove the existence of a contract of hire before an employer is responsible for including tips in wages as defined by K.S.A. 2008 Supp. 44-703(o). To the contrary, proving the existence of a contract of hire, or establishing that an individual performed services for wages, are two separate methods of showing “employment” under K.S.A. 2008 Supp. 44-703(i)(3)(D). See Harford, 272 Kan. at 269-70. Further, the statute clearly states “gratuities, including tips received from persons other than the employing unit, shall be considered wages” and the employee is required to furnish a writ ten statement to the employer when the “tips are received from a person other than the employer.” K.S.A. 2008 Supp. 44-703(o).
Milano’s also argues that the entertainers are merely “separate business persons who pay rent for the theater Milano’s provides.” Milano’s cites Crawford v. Kansas Dept. of Human Resources, 17 Kan. App. 2d 707, 709, 845 P.2d 703 (1989), rev. denied 246 Kan. 766 (1990), for support.
In Crawford, Kathi Crawford appealed after the Kansas Department of Human Resources (KDHR) determined her business, which supplied “demonstrators” to stores or events to promote food or to show how appliances or products work, was subject to state unemployment tax. The KDHR reasoned the demonstrators were employees instead of independent contractors. The district court affirmed the KDHR. 17 Kan. App. 2d at 708.
On appeal, this court examined K.S.A. 2008 Supp. 44-703(i)(3)(D) and the 20 factors used by the KDHR to determine whether there was an employer-employee relationship between the demonstrators and Crawford’s business. The Crawford court determined the record on appeal failed to indicate the demonstrators were employees, concluding that most of the 20 factors either weighed against finding an employee-employer relationship or were inconclusive. Additionally, the Crawford court noted that Crawford did not supervise, direct, or control the workers during the demonstrations and had no control over the manner or method of the demonstrations. 17 Kan. App. 2d 709-13.
Thus, contrary to Milano’s assertion, Crawford does not stand for the proposition that “employment” must be established under K.S.A. 2008 Supp. 44-703(i)(l)(B) before a contract of hire can exist. The Crawford court did not ignore the common-law factors, as Milano’s suggests. Instead, the Crawford court applied the common-law factors but acknowledged the fundamental question was whether an employer had the right to control the worker’s manner and method of performing the service. 17 Kan. App. 2d at 713.
K.S.A. 2008 Supp. 44-703(i)(l)(B) does not require that a contract be executed before a contract of hire can be found under K.S.A. 2008 Supp. 44-703(i)(3)(D). This court will not add lan guage to a statute. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 362, 204 P.3d 1156 (2009).
Milano’s contention is without merit and not supported by case law or the plain language of the statute. Accordingly, Milano’s argument fails.
Standard of Judicial Review
KDOL claims L. 2009, ch. 109, sec. 28(a)(2) requires this court to apply the standard of review that existed on the date of the hearing officer’s order, June 5, 2008, and disregard all evidence that does not tend to support the hearing officer’s findings of fact.
Previous Kansas Court of Appeals decisions dealing with a procedural statutory change retroactively applied L. 2009, ch. 109, sec. 28(d) (now codified at K.S.A. 2009 Supp. 77-621[a]), which broadens this court’s review of an agency’s factual findings to include evidence both supporting and detracting from an agency’s finding. See, e.g., Douglas v. Ad Astra Information Systems, 42 Kan. App. 2d 441, 450-51, 213 P.3d 764 (2009). However, it appears that none of these cases discussed or applied K.S.A. 77-621(a)(2).
K.S.A. 77-621(a)(2) requires this court to examine the validity of an agency action “in accordance with the standards of judicial review provided in [K.S.A. 77-621], as applied to the agency action at the time it was taken.” (Emphasis added.) The hearing officer filed his order in June 2008. If the KDOL’s interpretation is correct, this court must utilize the pre-amendment standard of review.
Research reveals only one Kansas Supreme Court decision applying K.S.A. 77-621(c)(7) after the July 1, 2009, amendment. Although factually dissimilar from this case, in Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 216 P.3d 170 (2009), the court acknowledged L. 2009, ch. 109, secs. 23-30 controlled its judicial review of state administrative agency actions. 289 Kan. 690, Syl. ¶ 1. However, the Frick court utilized the pre-amendment standard of review:
“The KJRA sets the standard of review on questions of fact when reviewing an agency’s actions. It allows this court to grant relief if the agency’s 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. 77-621(c)(7). Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. [Citation omitted.] An appellate court views all the evidence in a light most favorable to the prevailing party, and it does not reweigh competing evidence or assess the credibility of witnesses. [Citation omitted.] This court must accept all evidence and inferences that support or tend to support the findings as true, and this court must disregard all conflicting evidence. [Citations omitted.]” (Emphasis added.) 289 Kan. at 709-10.
The Frick court did not employ the post-amendment expansion of “in light of the record as a whole” to its standard of review, as recent Kansas Court of Appeals cases have done even though it acknowledged the newly amended KJRA controlled its review. 289 Kan. at 697, 709-10. Frick provides the only guidance from the Kansas Supreme Court concerning the application of the newly amended K.S.A. 2009 Supp. 77-621(c)(7) to a pre-amendment agency decision. We are aware of the fact that other panels of this court have considered the amendment to K.S.A. 77-621(c)(7) as procedural, and have applied the. amendment retroactively. Even if we were to apply the amendment retroactively, our decision would be unaffected.
Milano’s argues substantial evidence did not support the factual determinations that (1) Milano’s exercised control over the entertainers, and (2) the entertainers were Milano’s employees within the meaning of K.S.A. 2008 Supp. 44-703(i)(3)(D). Milano’s claims the hearing officer’s order disregarded or omitted “more compelling factors” that indicated an absence of an employer-employee relationship.
Our Supreme Court has consistently reiterated there is no absolute rule to determine whether an individual is an independent contractor or an employee. Rather, this court must determine the individual’s status based on the particular facts of each case. Hartford, 272 Kan. at 270. Although not the only factor, this court primarily examines whether the employer has the right of control and supervision over the alleged employee’s work and the right to direct the manner or method in which the employee performs the work or the result of the work. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 102-03, 689 P.2d 787 (1984).
The hearing officer cited Milano’s nonnegotiable house rules, which regulated conduct among the entertainers and between the entertainers and Club Orleans’ customers. Milano’s required each entertainer to complete an application and sign a performance agreement accepting the house rules.
The house rules stated that entertainers could not refuse drinks from Club Orleans’ customers and prohibited entertainers from “working] the crowd” around the stage area as another entertainer performed her routine on stage. If an entertainer violated a house rule, Club Orleans’ management had the authority to impose fines or terminate the business relationship. Further, Milano’s claimed in its house rules that Club Orleans’ customers were its own and not the entertainers’ customers.
Additionally, the house rules required an entertainer to impose an industry standard minimum tip for various dances so that an entertainer could not discount the rates she charged Club Orleans’ customers. If a customer tipped an entertainer less than the minimum amount, or failed to provide a promised tip, Club Orleans’ management would direct a Milano’s employee, i.e., a doorman, to discuss the issue with the customer and inform the customer that the behavior was unacceptable.
The hearing officer’s order also noted that the entertainers incurred considerable business expense, including costumes, shoes, hair, nails, and plastic surgeiy. However, in exchange Milano’s provided the entertainers with a stage, dressing room, showers, towels, soap, razors, feminine hygiene products, sound equipment, lighting, security, and a tanning bed.
Club Orleans allows the entertainers to choose what day and what shift to work, but Club Orleans’ management determines in what sequence the entertainers perform on stage. Entertainers must be on the floor or on stage if a customer is in Club Orleans’ building. Many of Milano’s advertisements, including ads on the outside of the Club Orleans’ building, billboards, and local newspapers, highlight the entertainers.
Moreover, Milano’s house rules included several restrictions concerning the manner and method in which the entertainers perform. Milano’s prohibited an entertainer from leaving the stage at any time during her three-song set. Entertainers are required to gather their personal effects and exit the stage as another enter tainer enters. Under the house rules, entertainers must notify Club Orleans’ management of “rude, abusive, grabby or threatening” customers.
The record on appeal supports the finding that Milano’s had the right to control the entertainers.
■ Next, Milano’s argues that substantial evidence did not support the factual determination that the entertainers were Milano’s employees within the meaning of K.S.A. 2008 Supp. 44-703(i)(3)(D). Milano’s entire argument for this issue consists of the following sentence: “While the Order makes a finding of fact under 703(i)(3)(D) based upon its erroneous application of the spurious ‘A-B test’ that the entertainers are employees, Milano’s has already shown that this fact finding is not supported by substantial evidence.”
Milano’s offers no authority for this assertion and provides no citation to facts in the record on appeal to support its claim. This court will presume factual statements not keyed to the record to be without support. In re Dennis, 286 Kan. 708, 722-23, 188 P.3d 1 (2008). Further, simply pressing a point without supporting authority, or without explaining why it is sound despite a lack of pertinent authority, is analogous to failing to brief an issue. State v. Torres, 280 Kan. 309, 321, 121 P.3d 429 (2005). Again, an issue not briefed by the appellant is deemed waived or abandoned. Kingsley, 288 Kan. at 395.
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Hill, J.:
We consider here a medical malpractice action. Herman M. Temes dismissed his first lawsuit against Joseph P. Galichia, M.D., and then with another counsel refiled it about 4 months later. Ultimately, the district court dismissed his second lawsuit based on the 2-year statute of limitations. We reverse the district court’s dismissal because Galichia never raised the affirmative defense of the statute of hmitations during the 16 months he litigated the first lawsuit and also took clear, unequivocal steps, such as seeking a professional malpractice screening panel and participating in discovery, that constitute a waiver of that affirmative defense. We hold that once an affirmative defense is waived, it is gone and no longer available to the party waiving the defense.
Temes sues Galichia for malpractice.
Dr. Galichia carried out a heart catheterization on Temes on March 5, 2004. Afterwards, Temes claimed Galichia negligently lacerated his left main artery, left anterior descending arteiy, and circumflex coronary arteiy. These injuries forced Temes to undergo open heart surgery which resulted in acute renal failure and permanent renal injury.
Almost 2 years later — March 3, 2006 — Temes filed a medical negligence lawsuit against Galichia and an entity called The Galichia Medical Group, P.A. in Sedgwick County District Court. The record reveals service upon the professional association but no service on Galichia personally.
From the start of the lawsuit, Galichia was active. Galichia and his professional association were granted a 10-day extension to file an answer but never did file such a pleading. Counsel for Galichia entered their appearances in the lawsuit on November 28, 2006. Both parties asked the district court on June 28, 2006, to convene a medical malpractice screening panel. (It is not clear whether the screening panel actually met, but it was eventually dismissed.) Then, on January 2, 2008, Temes dismissed his lawsuit. His attorneys on the first lawsuit were Accident Recovery Team, P.A. and James A. Cline.
A little more than 4 months after dismissing his lawsuit against Galichia, Temes filed a second petition in Sedgwick County District Court, making the same medical negligence claims but with different lawyers. Later, in August 2008, Galichia moved to dismiss the new petition on the grounds that the statute of hmitations barred the action.
Meanwhile, Temes filed a legal malpractice lawsuit against the Accident Recovery Team, P.A. and CHne. He alleged his former counsel negligently failed to obtain service of process on Galichia in his first lawsuit and his medical negligence claim against Galichia was now time barred by the statute of limitations. Then, both the Recovery Team and Cline intervened in the second Temes lawsuit against Galichia because they had learned Temes planned not to oppose GaHchia’s motion to dismiss based on the statute of hmitations.
Finally, in November 2008, the district court granted Galichia’s dismissal motion. The court specifically found that Temes’ second lawsuit against GaHchia was untimely and GaHchia was not prevented from raising the affirmative defense of statute of Hmitations. The intervenors bring this appeal. In turn, GaHchia argues the intervenors have no standing to appeal and therefore we have no jurisdiction to consider the case. He also contends the district court properly dismissed the second lawsuit due to the statute of Hmitations. We will address the standing to appeal issue first.
The district court properly allowed the attorneys to intervene; therefore, we have jurisdiction to decide the appeal.
Because Temes has folded his tents and withdrawn from the field of battle by not opposing Galichia’s motion to dismiss, GaHchia contends his former counsel, the Recovery Team and CHne, cannot intervene since there is no lawsuit remaining in which they can intervene. In other words, Temes’ acquiescence in the judgment of dismissal precludes the attorneys’ appeal, in GaHchia’s view. We do not agree. These facts illustrate the precise reason for intervention.
Our law permits parties to intervene in a pending lawsuit when they have an interest in the property or the transaction which is the subject of the action. See K.S.A. 60-224(a)(2). Courts have specifically allowed parties to intervene in a lawsuit when disposition of the action may substantially impair or impede the intervenor’s ability to protect that interest unless the intervenor’s interest is adequately represented by existing parties. Here, of course, central to Temes’ claims against his former counsel is his contention that his action against Galichia is time barred. Therefore, Temes has no reason to oppose Galichia’s motion to dismiss and certainly Galichia was using the motion as his first line of defense in the malpractice action. Clearly, no party in the lawsuit represented the interests of the Recovery Team and Cline. In our view, the court properly allowed the lawyers to enter the case as interested parties. Several cases support our conclusion.
In Pickens v. Allstate Ins. Co., 17 Kan. App. 2d 670, 674-75, 843 P.2d 273 (1992), rev. denied 252 Kan. 1093 (1993), the court decided an insurer could intervene to protect its interests in a policyholder’s lawsuit against an uninsured motorist if the insurer’s rights are not adequately represented by the parties, because the insurer has a financial stake in the outcome. Obviously, the Recovery Team and Cline have a financial stake in Temes’ second lawsuit that is comparable to the insurer’s in Pickens.
Also, we are told in In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 11, 687 P.2d 603 (1984), that the factors found in the statute that permits intervention, K.S.A. 60-224(a), should be liberally constmed in favor of intervention. Those factors are: (1) timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor’s interests. This is especially true when it is necessary to protect some right which cannot otherwise be protected including the right to appeal. Without intervention of the lawyers in this case there never could have been an appellate review of the order dismissing Temes’ lawsuit against Galichia on the grounds of the statute of limitations. Temes’ acquiescence in the judgment precluded the appeal without intervention. Also, we know that intervenors can appeal even if the original parties to a lawsuit do not.
To demonstrate this point, we turn to Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457 (1973). In Hukle, a landowner sought a zoning change in order to erect a townhouse complex. The city resisted, but finally the district court ruled the city’s refusal was arbitrary and unreasonable. When a group of neighboring landowners tried to intervene in the lawsuit, the district court refused their intervention motion. Next, the city moved to dismiss its appeal of the district court’s zoning ruling. The landowners tried to intervene a second time, contending the city no longer represented their interests in the zoning dispute. Again, the court denied their intervention motion. The landowners appealed. The Supreme Court, in overturning the district court’s order, discussed the doctrine of merger when intervention occurs:
" ‘A person who intervenes in a pending action becomes a party thereto and his action is merged with the main action. Thus intervention, it is said, is the grafting of one action on another, the trying of the combined issues as one trial, and the determination of them by one judgment . . . .’ [Citation omitted.]” 212 Kan. at 632.
The court then explained an intervenor takes on the character of an original party:
“ ‘Intervention presupposes the pendency of a suit in a court of competent jurisdiction, and one who becomes a party thereto, implicitly, if not expressly accepts the proceedings as he finds them at the time of intervention; the intervener is, for all intents and purposes, an original party. . . . The intervener is as fully bound by the record and as fully entitled to avail himself of it as if he had been an original party thereto.’ [Citation omitted.]” 212 Kan. at 632.
Thus, the Supreme Court held the district court erred in denying the landowner’s intervention motion and proceeded to determine the merits of the zoning appeal. In the same way, we should consider the merits of this appeal.
Correspondingly, the Recoveiy Team and Cline were allowed to intervene because no one in the lawsuit represented their interests. Clearly, they had a financial and professional stake in how the district court ruled on Galichia’s statute of limitations motion. When it was granted, as intervenors, they became as if they were original parties and could appeal the dismissal order.
We find no error in the district court allowing the lawyers to intervene. As intervenors, they have standing to bring this appeal. We turn now to the merits of the matter.
Because Galichia effectively waived the affirmative defense of the statute of limitations in the first lawsuit, the court improperly dismissed the second.
The intervenors, Recovery Team and Cline, contend Galichia, through his participation in the first lawsuit as well as not raising the issue at all, has waived the defense of the statute of hmitations. Galichia denies any waiver and insists the saving statute, K.S.A. GO-SIS, cannot save Temes’ second lawsuit against him because it was filed after the expiration of the period when such claims can be filed. Before we address the issue, we must review some fundamental points of law.
Basically, a civil action is commenced when the petition is filed in court if service of process is obtained within 90 days of that date. (The court can extend that time for 30 days for good cause.) See K.S.A. 60-203(a)(l). But, if there is no service within 90 days (or 120 where applicable), the action is deemed commenced on the day when process is served. K.S.A. 60-203(a)(2). An entry of appearance has the same legal effect as service of process. K.S.A. 60-203(c). In this context, Temes was required to commence his lawsuit for medical negligence within 2 years. K.S.A. 60-513(a)(7). We must now look at the timeline of this case.
First, Galichia’s medical negligence allegedly happened on March 5, 2004. This means the limitation period expired March 5, 2006. Temes filed his first petition on March 3, 2006. This means Jemes had 90 days to obtain service on Galichia. He did serve the professional association, but Galichia was never served. We conclude Temes’ lawsuit was not commenced, within the meaning of the law, until June 26, 2006, when both parties asked the district court to convene a professional screening panel. We do not agree with the Recovery Team and Cline on this point. They argue the first lawsuit commenced on May 26,2006, when Galichia asked for additional time to answer. But, Lindenman v. Umscheid, 255 Kan. 610, 631-32, 875 P.2d 964 (1994), holds that such requests are not an entry of appearance. See K.S.A. 60-203(c). Galichia’s actual entry of appearance was filed on November 28, 2006. Obviously, the first lawsuit was commenced after the expiration of the statute of limitations. But since we are dealing with a second lawsuit, we must also take into account the statute of repose.
The statute of repose applicable in this medical negligence cause of action is 4 years. Meaning Temes had until March 5, 2008, to commence any lawsuit arising from Galichia’s negligence. Temes’ second lawsuit was filed on May 23, 2008, after the expiration of the statute of repose. See K.S.A. 60-513(c). But we must also consider the nature of an affirmative defense.
Such defenses, according to K.S.A. 60-208(c), must be pled and proved by the defendant. In fact, unless the affirmative defense of statute of limitations is pled and proved, the court entertaining the matter should assume that a petition is timely commenced. See King v. Pimental, 20 Kan. App. 2d 579, 583, 890 P.2d 1217 (1995). But in the first lawsuit here, Galichia never filed an answer. However, that fact alone does not lead us to conclude Galichia waived his affirmative defense, because a statute of limitations can be raised in a K.S.A. 60-207(a) motion for judgment on the pleadings or at the trial on the merits. See K.S.A. 60-212(h)(2); Woolums v. Simonsen, 214 Kan. 722, 725-26, 522 P.2d 1321 (1974). Galichia’s failure to raise the defense for the almost 16 months the first lawsuit was pending and the actions he took while it was pending are more telling in this regard. The major step toward waiver of the defense was asking for a screening panel.
Such screening panels can be requested in medical malpractice cases under K.S.A. 2009 Supp. 60-3502. Galichia joined Temes in making a request for a panel on June 28,2006. In fact, on September 27, 2006, Galichia designated Dr. Thomas Estep as his screening panel member. A party cannot convene a medical malpractice screening panel when the claim is time barred by the statute of limitations. See Lawless v. Cedar Vale Regional Hosp., 252 Kan. 1064, 1065, 850 P.2d 795 (1993). A screening panel just considers whether the health care provider departed from the standard of care and injured the patient. See K.S.A. 2009 Supp. 60-3505(a). There was no reason for Galichia to join in a request for a screening panel if he intended to assert a statute of limitations defense. In addition to requesting a screening panel, Galichia took other steps that force us to conclude he waived his affirmative defense.
Following his request for a screening panel, Galichia joined in obtaining a stay order from the district court while the screening panel was working. Later, in July 2007, Galichia sought to dismiss the screening panel, not on the grounds of the statute of Hmitations but, instead, on the grounds that Temes was not prosecuting the screening panel procedure in a timely manner. Then, in August 2007, GaHchia asked for a discovery conference which was held in September of that year. At that conference, the court and the parties established a case schedule for discovery, disclosures, a pretrial conference, and trial. Later, in October 2007, GaHchia served interrogatories and a request for production of documents on Temes. At no time did GaHchia mention the statute of Hmitations. To the contrary, his actions indicated a defense on the merits and both sides expended time and money accordingly. Actions can constitute a waiver of an affirmative defense.
Waiver is a voluntary and intentional relinquishment of a known right and the expression of an intention not to insist upon what the law affords. Such an intention may be inferred from conduct, and both knowledge and intent are essential elements, but knowledge may be actual or constructive. Sultani v. Bungard, 35 Kan. App. 2d 495, 498-500, 131 P.3d 1264 (2006). In Sultani, the court found the plaintiffs waived their right for a new trial about noneconomic damages when they declined to have the jury return to deHberate about noneconomic damages. They accepted the verdict, instead. By accepting the verdict of the jury, they waived any defect in the verdict.
In opposition to this, GaHchia argues that even if he waived his affirmative defense of the statute of Hmitations, it would have no effect on this lawsuit because the saving statute, K.S.A. 60-518, is only effective if the original action is timely filed. And, of course, as we have previously noted, the first lawsuit was legally commenced after the Hmitation period had expired. GaHchia cites a number of cases as support: Comstock v. Joplin, 31 Kan. App. 2d 410, 35 P.3d 1055, rev. denied 276 Kan. 967 (2003), Smith v. Graham, 282 Kan. 651, 664, 147 P.3d 859 (2006), Clanton v. Estivo, 26 Kan. App. 2d 340, 342, 988 P.2d 254 (1999), and Handy v. Reed, 32 Kan. App. 2d 247, 254, 81 P.3d 450 (2003), rev. denied 277 Kan. 923 (2004).
However, none of these cases support Gahchia’s contention that K.S.A. 60-518 does not apply when a claim is not timely commenced but the defendant waives the statute of limitations as an affirmative defense. Comstock involves application of K.S.A. 60-518 where an individual filed the original lawsuit under a different name. See 31 Kan. App. 3d at 413. Smith involved the tolling effect of a medical screening panel and held that K.S.A. 60-518 does not save a second action filed before the original action is dismissed. See 282 Kan. at 652-53, 664. Clanton dealt with multiplicitous dismissals and refilings. See 26 Kan. App. 2d at 342. In Handy, the defendant was never properly served and never appeared before the original action was voluntarily dismissed. See 32 Kan. App. 2d at 249-50, 254. We must now turn to the saving statute.
If a lawsuit is terminated for any reason other than on the merits, and the plaintiff refiles the action within 6 months of the dismissal, the second lawsuit may proceed even if the time limit for the action has expired before the second lawsuit was filed. K.S.A. 60-518. Furthermore, Kansas law is clear that the saving statute, K.S.A. 60-518, applies to both the statute of limitations and its companion, the statute of repose. The case See v. Hartley, 257 Kan. 813, 822-23, 896 P.2d 1049 (1995), made it clear that the saving statute saved cases from the statute of repose as well as the statute of limitations. In See, the court dealt with an interlocutory appeal in a medical malpractice case. About a week before the 2-year statute of limitations expired, the plaintiff, See, asked the court to convene a screening panel. The court did so. About 9 months later the court decided the panel had been improperly constituted, set aside that panel’s findings and conclusions, and convened a second panel. Two months later, the second panel reported its findings. Thereafter, See filed his first petition. About 5 months later, he dismissed that petition voluntarily and then within 6 months of the dismissal See filed his second petition which was admittedly filed outside the statute of limitations and the statute of repose. The court held, “[t]he repose provisions of 60-513(c) are not applicable to defeat the savings clause of 60-518 when the initial action was timely filed, even though the second action is not filed until more than four years after the act which gave rise to the cause of action.” 257 Kan. at 822. In our view then, since we hold the first lawsuit was timely commenced because Galichia waived the statute of limitations affirmative defense, the saving statute, K.S.A. 60-518, bars the dismissal of the second lawsuit for being untimely due to either the statute of limitations or the statute of repose.
We find a case from New Jersey persuasive. In White v. Karlsson, 354 N.J. Super. 284, 286-87, 292, 806 A.2d 843 (2002), the court reversed a grant of summary judgment to the defendant when the plaintiff filed his petition outside the statute of limitations because the defendant through his actions waived the defense. The court noted both parties had engaged in discovery and had expended both time and money. In fact, the defendant engaged in arbitration concerning the case but never raised the affirmative defense for a year.
That case is analogous to the facts here. Galichia’s actions were inconsistent with a statute of limitations defense. His delay led to substantial discovery that misled and prejudiced Temes. Once an affirmative defense is waived it is gone. We find no case law or statute that permits it to be “unwaived.” The district court erred when it dismissed Temes’ second petition on these grounds.
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McAnany, J.:
Justin Elnicki was convicted of rape and aggravated criminal sodomy in 2002. The facts that led to Elnicki’s convictions are detailed in the reported opinions in State v. Elnicki, 279 Kan. 47, 48-50, 105 P.3d 1222 (2005), and State v. Elnicki, 32 Kan. App. 2d 266, 80 P.3d 1190 (2003). We need not repeat them here, other than to note that the 19-year-old victim testified that after she accepted Elnicki’s offer for a ride he forced her to engage in fellatio and sexual intercourse. Elnicki contended that the victim engaged in consensual oral sex and became angry when he refused to pay her for her services.
The Kansas Supreme Court reversed Elnicki’s convictions because of the erroneous admission of a videotaped interrogation during which the detective repeatedly commented on Elnicki’s credibility and because of prosecutorial misconduct in the State’s closing argument. Elnicki, 279 Kan. 47. The case was remanded for a new trial.
While awaiting a second trial, Elnicki moved to dismiss based on a claimed violation of his statutory speedy trial rights after the mandate issued. His motion was denied. Elnicki was tried a second time. A further redacted version of Elnicki’s videotaped interrogation was admitted into evidence. Elnicki was again convicted of rape, but acquitted of aggravated criminal sodomy.
Elnicki moved for a new trial and to recall jurors based on alleged juror misconduct. The district court found any juror misconduct was harmless, denied Elnicki’s motion, and sentenced him to 618 months in prison. Elnicki appealed, raising the speedy trial issue, error in admission of the redacted videotape, and misconduct by jurors and by the prosecutor.
While Elnicki’s appeal was pending before us, he moved for a remand to the district court pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for a hearing on his claim that his counsel at his second trial was ineffective. This court granted El nicki’s motion and remanded for a hearing pursuant to Van Cleave. Following that evidentiary hearing, the district court ordered a new trial, finding that Elnicki’s counsel had been ineffective in failing to investigate and call new witnesses discovered after the first trial. The State has cross-appealed this ruling.
Thus, we have for review (1) the denial of Elnicki’s speedy trial motion before his retrial, (2) the district court’s order for a third trial based on Elnicki’s counsel being ineffective at his second trial, and (3) claims of error arising during Elnicki’s second trial.
I. Denial of ElnickTs Speedy Trial Motion Before His Second Trial
Elnicki claims his statutory right to a speedy trial was violated when the State failed to bring him to trial within 90 days of the Supreme Court mandate following his first appeal. Elnicki contends K.S.A. 22-3402(1) was violated because the first continuance (from April 4, 2005, to June 20, 2005) was granted over his objection and should be charged to the State. See K.S.A. 22-3402(6). Because his June 20 trial date was more than 90 days after the mandate was filed with the district court on March 15, 2005, Elnicki claims the trial court erred in not dismissing the criminal charges against him. Elnicki also challenges the later continuances caused by the withdrawals of his various appointed counsel.
In resolving this issue our first task is to determine whether the factual basis for the district court’s decision is supported by substantial competent evidence. Then we determine de novo whether those facts as a matter of law support the district court’s legal conclusion. State v. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446 (2009).
On remand from the Supreme Court, the case was set for trial on April 4,2005. At a hearing on March 31,2005, the district court considered a motion to continue the April 4 trial date and, over Elnicki’s objection, continued the trial to June 20, 2005. At a later hearing on Elnicki’s motion to dismiss on speedy trial grounds, the prosecutor explained the background facts leading up to that March 31 hearing.
The prosecutor stated that when the Supreme Court’s mandate was filed with the district court on March 15,2005, ordering a new trial, the State was unsuccessful in attempting to meet with Elnicki’s trial counsel to schedule a date for the retrial. Accordingly, the State on its own scheduled the case for trial on April 4, 2005. The prosecutor asserted that he had contacted all the witnesses and was fully prepared to try the case on April 4. However, during the week before March 31, the prosecutor and Elnicki’s counsel met the court in chambers to schedule a hearing to address the issue of the trial date. According to the prosecutor, Elnicki’s counsel expressed to the court that she had conflicting trial settings that would make it impossible to try the case on April 4. When the prosecutor recounted these facts at the hearing on Elnicki’s motion to dismiss, Elnicki’s counsel did not disagree with the prosecutor’s description of the events leading up to the March 31, 2005, hearing.
On March 31,2005, the district court continued the trial to June 20, 2005, “over the objection of the defendant.” The record of this hearing does not disclose whether Elnicki’s objection was to the continuance itself or to the date selected by the court. The record does show, however, the trial court’s finding, recorded in the appearance docket, that the continuance to June 20, 2005, was due to the court’s busy calendar.
K.S.A. 22-3402 provides, in part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 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).
“(5) The time for trial may be extended ... for any of the following reasons:
(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case fixed for trial by this section. Not more than one continuance of not more than 30 days may be ordered upon this ground.
“(6) In the event ... a conviction is reversed on appeal to the supreme court or court of appeals, the time hmitations provided herein shall commence to run from . . . the date the mandate of the supreme court or court of appeals is filed in the district court.”
Elnicki’s April 4, 2005, retrial date clearly was within 90 days of the mandate. Prior to the scheduled retrial the prosecutor and defense counsel determined that the April 4 trial date was inconvenient for Elnicki’s counsel. The next available date on the court’s calendar was June 20, 2005, well within the permitted 30-day extension of the 90-day deadline. The appearance docket indicates that the court invoked the exception under K.S.A. 22-3402(5)(d) and cited the court’s calendar for the delay. Though no formal journal entry was filed, the entry on the appearance docket is proper evidence of the court’s ruling. See State v. Kee, 238 Kan. 342, 355, 711 P.2d 746 (1985); State v. Rodriguez-Garcia, 27 Kan. App. 2d 439, 441, 8 P.3d 3 (1999), rev. denied 269 Kan. 939 (2000). Setting the case for retrial on June 20, 2005, did not violate Elnicki’s speedy trial rights. See State v. Clements, 244 Kan. 411, 414-15, 770 P.2d 447 (1989); State v. Lawrence, 38 Kan. App. 2d 473, 480, 167 P.3d 794, rev. denied 286 Kan. 1183 (2007).
Elnicki contends Clements and Lawrence are not valid after the Supreme Court’s decision in State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000). However, the facts in Hines are not on point. Unlike in Elnicki’s case, the continuance in Hines was not based on K.S.A. 22-3402(5)(d).
In Hines, defense counsel asked for a continuance over the defendant’s objection. No mention was made of the speedy trial deadline. The State had at least 18 days left of the speedy trial period, but the trial was scheduled on a date after that time. The Supreme Court determined that the mere request for a continuance did not waive the right to speedy trial by the defendant and nothing in the record supported a finding that the court’s docket precluded resetting the trial within the remaining 18-day period. 269 Kan. at 703-04. Unlike in Hines, the date for the new setting for Elnicki’s trial was based on the unavailability of an earlier court date before expiration of the speedy trial period. Hines does not apply.
Elnicki also challenges the later continuances resulting from the withdrawal of his original attorney, Cindy Sewell. Trial was scheduled for June 20, 2005. On that date Sewell moved to withdraw because of a newly discovered conflict. Following a discussion between Elnicki and his counsel, the court granted the motion and continued the case, charging the delay to Elnicki. The case was rescheduled for trial on September 12, 2005. Substitute counsel William Rork, and then substitute counsel Richard Lake, were both permitted to withdraw due to conflicts, leading to the appointment of attorney Richard Jones, who represented Elnicki at the September 2005 retrial.
Any delay caused by a change in defense counsel is properly chargeable to the defendant and does not count against the speedy trial deadline. State v. Timley, 255 Kan. 286, 294-96, 875 P.2d 242 (1994). Here, the failure of defense counsel to recognize the conflict between representing Elnicki and representing witness Lannas was not the fault of the State. The public defender’s office was on notice of this potential conflict well before the scheduled trial date on June 20, 2005.
To summarize, the speedy trial clock began to run on March 15, 2005, the date the Supreme Court’s mandate was filed with the district court. See K.S.A. 22-3402(6). The State had 90 days thereafter to retiy Elnicki, or until June 13, 2005. On March 31, 2005, the trial was continued to June 20, 2005. That continuance was properly charged to Elnicki. The trial was rescheduled to June 20, 2005, because of the press of other cases on the court’s calendar. This new trial date was within 30 days of the of the original 90-day deadline. See K.S.A. 22-3402(5)(d). Thereafter, the trial was continued due to conflicts of interest that were properly charged to Elnicki. The State was required to commence the trial by September 21, 2005, 90 days following the existing trial deadline, when the current trial setting was continued. See K.S.A. 22-3402(3); Lawrence, 38 Kan. App. 2d at 480. Elnicki’s rescheduled trial commenced on September 12, 2005, within this 90-day time limit. Thus, the district court did not err in denying Elnicki’s motion to dismiss.
II. The State’s Appeal From the Van Cleave Ruling While This Appeal Was Pending
While Elnicki’s appeal following his second trial was pending, this court remanded the matter to the district court for a Van Cleave hearing. The district court conducted a hearing on remand and found that Elnicki’s trial counsel’s performance at the second trial was ineffective. The district court ordered a retrial. The State has appealed that ruling.
Elnicki asserts that this court lacks jurisdiction to consider the State’s appeal. The State failed to file a reply brief responding to this argument. Whether we have jurisdiction to hear the State’s appeal is a question of law over which we have unlimited review. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
The right to appeal is strictly statutory. Absent statutory authority for an appeal, an appellate court is obligated to dismiss. The only clue to the State’s theory is found in the second notice of appeal, which references K.S.A. 22-3602(b). and K.S.A. 2009 Supp. 60-2102(a)(4). The State does not explain how these statutes confer jurisdiction. No mention is made of the issue in the State’s brief, and the State has not contested the arguments to the contrary presented by Elnicki in his brief.
Pursuant to K.S.A. 22-3602(b), the State may only appeal from (1) a dismissal of a complaint or information; (2) an order arresting judgment; (3) a question reserved; or (4) “upon an order granting a new trial in any case ... for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.” Options (1) and (2) clearly do not apply. Elnicki’s crimes are not off-grid crimes, so option (4) does not apply. Given this limited menu of choices, it appears that the only possibility the State must be relying upon is the question reserved.
To appeal on a question reserved, the question must be of statewide interest and must be vital to a correct and uniform administration of the criminal law. City of Overland Park v. Povirk, 262 Kan. 531, 532, 941 P.2d 369 (1997). The district court’s finding of ineffective assistance of counsel in this case does not present a question of statewide interest and has no impact on the correct and uniform administration of the criminal law throughout the state. Thus, K.S.A. 22-3602(b) does not provide jurisdiction for this appeal.
The State’s notice of appeal also cites the civil appeal statute, K.S.A. 2009 Supp. 60-2102. The State does not explain how this statute applies. Proceedings pursuant to K.S.A. 60-1507 are civil in nature. In Rice v. State, 37 Kan. App. 2d 456, 459, 154 P.3d 537, rev. denied 284 Kan. 946 (2007), the State claimed that a K.S.A. 60-1507 motion was successive because the movant had sought and obtained a remand under Van Cleave for a hearing on claims of ineffective assistance of counsel. This court found the Van Cleave hearing was “part and parcel of the direct criminal appeal” and, therefore, was not the equivalent of a motion under K.S.A. 60-1507. Rice, 37 Kan. App. 2d at 461. Similarly, the remand here for a Van Cleave hearing is part and parcel of Elnicki’s direct criminal appeal and, therefore, the civil appeal statute does not apply.
We have no jurisdiction to consider the State’s appeal. The State’s appeal is dismissed.
III. Elnicki’s Claims of Error During His Second Trial
Following the district court’s denial of Elnicki’s motion to dismiss for violating his right to a speedy trial, Elnicki was retried on the rape and aggravated criminal sodomy charges. He was again convicted of rape and he now appeals various claimed errors in that second trial.
Because the district court ordered a third trial following the Van Cleave hearing and while this appeal has been pending, these claims of error in Elnicki’s second trial are now moot. The only issue which is likely to reoccur is the propriety of admission of the redacted videotape of Elnicki’s statements to the authorities, and that issue has not been adequately preserved for our review.
Before Elnicki’s second trial the court ordered additional redactions from the videotape and overruled Elnicki’s other objections. When the tape was offered at trial, defense counsel indicated he was not objecting, “[w]ith the understanding that all of the redactions are in accordance with what we have talked about.” The record does not reflect that defense counsel made any objections during the playing of the videotape or immediately thereafter. The issue was not raised until Elnicki moved for a new trial.
Elnicki raised the issue in his claim of ineffective assistance of counsel at his retrial. However, at the Van Cleave hearing he failed to present any evidence regarding counsel’s failure to ensure that the videotape was properly redacted. The district court found El nicki had abandoned this issue, and Elnicki has not appealed that ruling.
In order to preserve a claim that the district court erred in admitting the redacted videotape at the second trial, Elnicki had to make a contemporaneous objection, pursuant to K.S.A. 60-404. See State v. Richmond, 289 Kan. 419, 428-29, 212 P.3d 165 (2009); State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). Because Elnicki failed to do so, we will not now consider this claim of error.
Affirmed in part and dismissed in part. | [
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Brazil, C.J.:
Nathaniel D. Thomas appeals his convictions of injury to a pregnant woman, aggravated battery, and criminal threat. He argues ineffective assistance of counsel, multiplicitous charges, and prosecutorial misconduct.
C.B., the victim, testified that Nathaniel Thomas called her around 12:45 a.m. on May 21, 1997. C.B. then proceeded to Thomas’ house, picked him up around 1:15 a.m., and drove out to the lake. C.B. was 5% months pregnant with Thomas’ baby. Thomas did not want the baby and wanted her to have an abortion. Thomas repeatedly struck, hit, and kicked her about the abdominal region while they were parked out at the lake that night. C.B. testified that Thomas threatened to kill her. C.B. then drove Thomas home.
Thomas testified that he was asleep on the couch and never left the house in the early morning hours of May 21, 1997.
C.B. went to the emergency room about 24 hours after the beating. The medical evidence of C.B.’s injuries was consistent with her being beaten within 24 hours of her reporting to the hospital. C.B. sustained numerous bruises throughout her trunk and abdom inal region. Doctors determined the fetus had died and induced labor.
Thomas was convicted of injury to a pregnant woman, aggravated battery, and criminal threat.
Ineffective Assistance of Counsel
Thomas argues that he was denied his light to effective assistance of counsel. In the hearing on the motion for a new trial, Thomas argued that he had four alibi witnesses who were barred from testifying because defense counsel failed to file a notice of alibi as required by K.S.A. 22-3218. Diane Thomas, the defendant’s mother, claimed that she informed defense counsel of the alibi witnesses 9 months prior to trial. Thomas’ sister, Natasha, testified that she woke up around 2 a.m. and saw Thomas sleeping on the couch. The trial court denied the motion for a new trial. Thomas claims that the alibi defense was his sole theory of defense and that the failure to file the notice of alibi denied Thomas effective assistance of counsel.
Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, defendant must establish that (1) counsel’s performance was deficient, which means counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel’s errors were so serious they deprived defendant of a fair trial. State v. Rice, 261 Kan. 567, 598-99, 932 P.2d 981 (1997).
Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential. To show prejudice, the defendant must show a reasonable probability that but for counsel’s unprofessional errors, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Rice, 261 Kan. at 599-601.
The performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact on appeal requiring de novo review. State v. Orr, 262 Kan. 312, 321, 940 P.2d 42 (1997).
At the close of the State’s case, defense counsel argued to the trial court that he should be permitted to present alibi testimony even though he had not filed a notice of alibi. Defense counsel argued that Thomas’ stepfather and sisters, Victoria and Natasha, could vouch for his whereabouts at the time of the battery and should be allowed to testify even though he had not filed notice. After a colloquy between the court and defense counsel, it became apparent that Natasha was the only true alibi witness and that counsel had decided to call only Natasha. Defense counsel argued that these witnesses had been endorsed by the State, and, therefore, there was no element of surprise. The State responded that it had not had the opportunity to interview Natasha and did not know what she would testify relating to alibi. The trial court ruled that because Thomas had not complied with K.S.A. 22-3218, he could not present witnesses who could support his alibi defense. After trial, Thomas hired new counsel who investigated the claim of ineffective assistance of counsel. New counsel filed a motion for a new trial based upon the ineffective assistance of counsel claim, which was denied. The defense counsel who conducted the trial was not called as a witness. However, when he argued at the close of the State’s case to be permitted to present alibi testimony, he offered no explanation for his failure to file a notice of alibi, other than he was relying on the fact that those witnesses had been endorsed by the State.
In State v. Sanford, 24 Kan. App. 2d 518, 948 P.2d 1135 (1997), defense counsel filed a notice of alibi and then decided not to develop the alibi argument because he concluded some of the witnesses would be hostile, at least one witness would be offering perjured testimony, and it would be a waste of resources to search for others.
The court concluded that it would not be improper to refuse to use perjured testimony. However, it held that counsel’s perfunctory attempts to contact alibi witnesses and failure to investigate further was not reasonable under the facts presented. The case was reversed and remanded for a new trial.
Similarly, in this case, we conclude it was not reasonable for counsel to fail to file the notice of alibi when Thomas’ sole defense was alibi. At least Natasha, if no one else, could have supported his defense that he did not leave home on the night in question. Although Natasha was a family member and might have created a credibility problem, the State had only C.B.’s testimony that Thomas had committed the crimes charged. It had no corroborating witnesses or physical evidence to support that Thomas and C.B. were together.
Natasha’s alibi testimony could have created a reasonable doubt for the jury.
Multiplicitous Charges
The standard of review on questions of multiplicity is plenary. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998).
In order to convict Thomas of injury to a pregnant woman, the State had to prove that Thomas committed an underlying felony causing C.B. to suffer a miscarriage. K.S.A. 21-3440. The State used aggravated battery as the underlying felony to support the conviction of injury to a pregnant woman. Thomas was also separately charged with and convicted of aggravated battery. The State did not allege or prove two separate and distinct acts of battery but relied on the facts of the aggravated battery charge to prove the injury to a pregnant woman charge. Thomas argues the prohibition against double jeopardy prevents the State from using a single wrongful act as the basis for multiple convictions.
Thomas did not argue to the trial court that the convictions were multiplicitous. When constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). There are three exceptions to the general rule. One of those exceptions is whether there is a question that must be considered in order to serve the ends of justice or to prevent a denial of fundamental rights. State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998).
In State v. Dubish, 234 Kan. 708, 675 P.2d 877 (1984), the Kansas Supreme Court faced an issue of multiplicity raised for the first time on appeal. The court noted the exception stated above and decided to address the issue on the merits. It relied on the reasoning of a prior Kansas case:
“The issue of multiplicity was considered in State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978). The court stated the principal danger raised by a multiplicitous indictment is die possibility that die defendant will receive more than one sentence for a single offense. 224 Kan. at 154-55. The fundamental right of a defendant to a fair trial under the 5th and 14th Amendments to the Constitution of die United States would be violated by a multiplicitous conviction.” 234 Kan. at 718.
Therefore, the merits of Thomas’ multiplicity issue are addressed below.
K.S.A. 21-3107 allows charging a defendant with multiple violations arising from a single transaction when the same conduct may establish the commission of more than one crime. The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not preclude convictions and sentences for both charges. Vontress, 266 Kan. at 256.
Convicting a defendant for multiplicitous crimes is prohibited by K.S.A. 21-3107. An individual may be convicted of either the crime charged or an included crime, but not both. An included crime may be “a crime necessarily proved if the crime charged were proved.” City of Wichita v. Edwards, 23 Kan. App. 2d 962, 972, 939 P.2d 942 (1997).
To determine whether convictions are multiplicitous, we start with State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), where the court set forth a two-pronged analysis to examine lesser included offenses. The Fike test was expanded to include multiplicity in State v. Warren, 252 Kan. 169, 175-76, 843 P.2d 224 (1992). The first step is to determine whether all of the statutory elements of the lesser crime are among the statutory elements required to prove the greater crime. If so, then the lesser crime is a lesser included offense of the greater crime.
Under the second prong of Fike, if the factual allegations of the charging document and the evidence required to be adduced at trial to prove these allegations would also necessarily prove the lesser crime,-then multiplicity applies. Thomas argues that there was only one overt act of force or violence, and the facts only support one charge.
In State v. Fritz, 261 Kan. 294, Syl. ¶ 4, 933 P.2d 126 (1997), the court found that the test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.
In the case at hand, aggravated battery is an underlying felony which is an element of injury to a pregnant woman. Aggravated battery does not require proof of an element not necessary to prove the other offense. Under this test, the charges are multiplicitous.
This case is very similar to City of Wichita v. Edwards, 23 Kan. App. 2d 962, 939 P.2d 942 (1997). In Edwards, an ethnic intimidation ordinance required proof of a violation of one or more enumerated underlying ordinances. Edwards was convicted of battery, disorderly conduct, and ethnic intimidation. The court held that since violation of the batteiy and disorderly conduct ordinances were required at trial to prove ethnic intimidation, the convictions were multiplicitous. Edwards, 23 Kan App. 2d at 973. Applying this precedent to the case at hand, Thomas’ conviction of aggravated battery, which was required to prove the crime of injury to a pregnant woman, is multiplicitous. If there was clear legislative intent that the purpose of the injury to a pregnant woman statute was to protect the fetus, then the convictions would not be multiplicitous. However, we have been unable to find such a clear legislative intent in our research of the legislative history of the statute.
Having determined that the convictions of injuiy to a pregnant woman and aggravated battery are multiplicitous, we need not address Thomas’ argument relating to merger of the offenses.
Prosecutorial Misconduct
Thomas testified in his own behalf and stated that he was at home asleep at the time of the battery. The State then tried to impeach Thomas’ credibility and asked Thomas if he invoked his right to an attorney. Thomas argues that in soliciting testimony that he invoked his Miranda rights, the State committed prosecutorial misconduct and denied him his right to a fair trial.
Thomas contends the State impermissibly elicited testimony about the defendant’s silence following Miranda warnings in violation of Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Doyle held a prosecutor may not use a defendant’s silence after receiving Miranda warnings to impeach his exculpatory story at trial. Doyle, 426 U.S. at 610. Kansas adopted Doyle in State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976).
In State v. Edwards, 264 Kan. 177, 195, 955 P. 2d 1276 (1998), the Kansas Supreme Court stated:
“It is constitutionally impermissible for the State to elicit evidence at trial of an accused’s post -Miranda silence. Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994). A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent. State v. Brinkley, 256 Kan. 808, 820, 888 P.2d 819 (1995).”
There are three factors which the Kansas courts have considered to determine whether a new trial should be granted based on prosecutorial misconduct: (1) Was the misconduct so gross and flagrant as to deny the accused a fair trial; (2) do the prosecutor’s remarks show ill will on the prosecutor’s part; and (3) is the whole evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor’s prejudicial remarks changed the result of the trial? State v. Follin, 263 Kan. 28, 45, 947 P.2d 8 (1997).
In the case at hand, the State was attempting to impeach Thomas on his testimony regarding what he told police on the night of the battery. In doing so, it committed prosecutorial misconduct by asking if Thomas asked for his attorney. The State’s attorney conceded as much at oral argument. However, the error was harmless. The behavior was not gross and flagrant; rather, the State went too far in impeachment questioning. The State did not show ill will. The comments were not emphasized in the closing statements. Further, the physical evidence supports the victim’s version of events. The prejudicial remarks were not likely to have much weight in the minds of the jurors.
Reversed and remanded for new trial. | [
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Elliott, J.:
David G. Gill appeals his conviction of intentional second-degree murder and criminal possession of a firearm.
We affirm in part, reverse in part, and remand.
On April 20, 1996, following a stormy relationship with Gill’s neighbor, Trace Norton, concerning the volume of music being played by Gill, a single gunshot was heard after loud , shouting. Norton died as a result. Gill went on foot to a pay phone some 2 miles away and called the police.
At the police station, Gill met with Detective Timothy Relph; Gill signed the Miranda form and indicated he did not want to talk. Two days later, Gill’s sister called authorities and indicated Gill was ready to talk. Gill signed a second Miranda form and then stated he shot Norton in self-defense and told the police where to find the gun.
At trial, Gill defended on self-defense grounds and also claimed he was not guilty by reason of mental disease or defect. After conviction and during sentencing, Gill left the courtroom and went to the jury room from which he had to be forcibly removed. Gill was sentenced in his absence, the trial court finding Gill had voluntarily removed himself from the proceedings.
Gill argues the trial court erred in denying his motion to suppress his statements made to police.
Initial statements
With respect to Gill’s initial statements, this case is strikingly similar to State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998). Here, as there, defendant failed to insist on termination of questioning altogether. The trial court did not err in refusing to suppress Gill’s initial statements. See Donesay, 265 Kan. at 72-73.
Subsequent statements
At the later interview, instigated by Gill’s sister’s call to police, he admitted shooting Norton but asserted it was in self-defense. The trial court did not err in refusing to suppress those subsequent statements. Gill clearly waived his right to remain silent. He was given Miranda warnings twice, and there is nothing in the record to indicate Gill’s waiver was anything but knowing and voluntary. See State v. Lane, 262 Kan. 373, 383-84, 940 P.2d 422 (1997).
Gill also claims the trial court erred in admitting a journal entry as evidence that he was a convicted felon. Evidence of the prior conviction was a necessary element of the charge of criminal possession of a firearm. K.S.A. 21-4204(a)(2). Gill acknowledges, but argues the journal entry detailing the nature and substance of the prior crime was both unnecessary and unduly prejudicial.
We are given substantial guidance on this issue by our Supreme Court’s recent decision in State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999). In Lee, the Supreme Court affirmed a conviction on harmless error grounds, but held the trial court abused its discretion in rejecting Lee’s offer to stipulate to the fact of a prior conviction. Lee, 266 Kan. at 814. The Lee court also stated drat unless “there is a dispute over the status of the prior conviction (for example, was it or was it not a felony), the admission of the type and nature of the prior crime can only prejudice the jury.” 266 Kan. at 815. (Emphasis added.)
The Lee court, in a narrow holding, concluded by stating:
“(1) When requested by a defendant in a criminal possession of a firearm case, the district court must approve a stipulation whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon. (2) At the same time, the State may place into the record, at its discretion, the actual judgment(s) and sentence(s) of the prior felony conviction(s). (3) Neither these documents nor the number and nature of the prior convictions should be disclosed to the trial jury. (4) Out of the jury’s presence and after consultation with counsel, the defendant should be required to personally acknowledge the stipulation and his or her voluntary waiver of his or her right to have the State otherwise prove the convicted felon status element beyond a reasonable doubt. (5) The defendant’s stipulation of convicted felon status satisfies the prosecution’s burden of proof for that element of the crime. (6) If the element of ‘convicted felon’ is established by stipulation, ‘the judge may thereafter instruct the jury that it can consider the convicted felon status element of the crime as proven by agreement of the parties in the form of a stipulation.’ ” 266 Kan. at 815-16.
Lee relied primarily on Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574,117 S. Ct. 644 (1997); U.S. v. Wacker, 72 F.3d 1453 (10th Cir. 1995); Brown v. State, 719 So. 2d 882 (Fla. 1998); and State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997).
The present case requires us to decide whether to take a small step beyond the narrow holding of Lee. We choose to take that step. Here, we are asked to decide whether the Lee rationale also applies where a defendant merely concedes or informally stipulates to a prior felony conviction, or whether it must be linked to situ ations where a defendant makes a formal offer of stipulation as to status.
The court in Old Chief framed the issue as whether a court abuses its discretion where a defendant offers to concede to a prior felony and the trial court “spurns such an offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.” Old Chief 519 U.S. at 174.
The Tenth Circuit Court has held that evidence about the nature of the predicate crime is prejudicial and should be excluded if possible by “use of a redacted record, stipulation, affidavit, or other similar technique whereby the jury is informed only of the fact of a prior felony conviction, but not of the nature and substance of the conviction.” (Emphasis added.) U. S. v. Dean, 76 F.3d 329, 333 (10th Cir. 1996). See U. S. v. Wilson, 107 F.3d 774 (10th Cir. 1997).
In the present case, defendant’s conceding on the record to the existence of a prior felony conviction would clearly constitute a “similar technique whereby the jury is informed of the fact of a prior felony conviction, but not of the nature and substance of that conviction.” Here, Gill objected not to the fact of the prior conviction, but to the admission of the journal entiy.
Having determined the trial court erred in admitting the journal entry detailing Gill’s prior felony convictions, the question remains: Was the error harmless? This case is a bit more cloudy than the precedents previously cited. Here, Gill admitted shooting the victim but added he acted in self-defense. Here, the fact the jury had proof of the nature of Gill’s prior crimes — aggravated battery and aggravated assault — could have influenced the credibility of Gill’s defense. Instead of merely knowing Gill was a convicted felon, the jury knew he had been convicted of prior crimes that were similar in nature to the crimes with which he was currently charged. All of the crimes were of a similar nature; all were violent, person crimes.
The most the jury needed to know was that Gill had a prior felony conviction. The trial court erred in admitting the journal entiy of the prior convictions; the error was not harmless and it taints both convictions.
Gill also argues the trial court erred in failing to hold a competency hearing when requested at sentencing. Neither Gill nor his counsel requested such a hearing until Gill left the courtroom during sentencing.
The trial court did not abuse its discretion in failing to hold a competency hearing. See State v. Perkins, 248 Kan. 760, Syl. ¶ 4, 811 P.2d 1142 (1991); State v. Green, 245 Kan. 398, Syl. ¶ 8, 781 P.2d 678 (1989).
Finally, Gill argues the trial court erred in sentencing him in his absence. We disagree. A defendant may waive his right to be present at sentencing. State v. Braun, 253 Kan. 141, 146-47, 853 P.2d 686 (1993). Here, Gill left the courtroom of his own volition. The trial court did not err in sentencing Gill in his absence. See State v. Williams, 259 Kan. 432, 445-46, 913 P.2d 587 (1996).
Affirmed in part, reversed in part, and remanded for a new trial. | [
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Knudson, J.;
David Scott Schoby appeals from the trial court’s order declining to terminate Schoby’s child support obligation upon the marriage of his 16-year-old son, Michael. Schoby contends child support for Michael automatically terminated at the time of Michael’s marriage under the express terms of the underlying property settlement agreement.
The controlling facts are not in dispute. David and Donna J. Schoby were divorced in 1994. Their property settlement agreement approved by the trial court provides child support will continue until a minor child reaches the age of 18, marries, becomes legally emancipated, or dies. Subsequently, the trial court did modify David’s monthly child support obligation but specifically provided that “[a]ll other orders with regard to said minor children remain in full force and effect.”
The narrow question presented on appeal is whether David’s obligation to pay child support for Michael terminates as a matter of law upon Michael’s marriage. On appeal, David makes no suf ficiency of the evidence argument as to the trial court’s conclusion that Michael’s marriage did not result in emancipation.
K.S.A. 1998 Supp. 60-1610(a)(l) requires that child support shall at the veiy least be paid until a child reaches 18 years of age. In Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970), the Supreme Court held that there can be no contractual agreement in a divorce action that reduces or terminates a parent’s legal obligation to pay child support. We also note that accrued child support cannot be modified under K.S.A. 60-260(b)(6) and that prospective unpaid child support payments can only be modified by proper motion under 60-1610(a). Brady v. Brady, 225 Kan. 485, 492, 592 P.2d 865 (1979).
In Ortiz v. Ortiz, 180 Kan. 334, 339-40, 304 P.2d 490 (1956), the Supreme Court held that marriage of a minor child does not, as a matter of law, emancipate such child. However, the court also stated:
“This conclusion, we may add, is not intended to imply that under the powers conferred by our code of civil procedure a district court cannot make provision in a support order for the cessation of child support payments upon the marriage of a minor child. All it means is that in the absence of such a provision the party charged with the obligation of making the payments under the terms of the order for the benefit of a minor child must move out and obtain modification or change of such order in order to avoid the force and effect of the rules heretofore considered and discussed.” 180 Kan. at 339-40.
In Patrzykont v. Patrzykont, 7 Kan. App. 2d 533, 535, 644 P.2d 1009 (1982), a panel of this court stated:
“[I]n the absence of wording in the decree to the contrary, the obligation of support is not terminated by the marriage and motherhood of the minor child. [Citation omitted.] Thus, emancipation does not necessarily terminate the obligation of support and would be an inappropriate event for justifying automatic termination by the parents without sanction of the court.”
Arguably, the above dicta in Ortiz and Patrzykont may be read to support David’s argument. There was a property settlement agreement adopted by the trial court that specifically provided for termination of Michael’s child support upon his marriage. Nonetheless, we are not persuaded Michael’s child support should be terminated as a matter of law.
First, the right of a child to support from his or her father cannot be taken away or unfairly diminished by an agreement between the divorcing parents. Thompson v. Thompson, 205 Kan. at 633 (citing Grimes v. Grimes, 179 Kan. 340, 343, 295 P. 2d 646 [1956]). Second, the public policy of Kansas is stated in 60-1610(a) and specifically provides for the payment of child support until a child reaches 18 years of age. An order of a district court providing for automatic termination upon emancipation or marriage of the child would be no less contrary to public policy. We know of no circumstance short of death of the parent obligor or the child that calls for automatic termination of child support before a child reaches 18 years of age. We conclude that if termination is appropriate, the parent obligor must seek prospective termination by filing a motion under 60-1610(a). Accordingly, we affirm the judgment of the trial court.
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The opinion of the court was delivered by
MASON, J.:
The Yates Center National Bank became insolvent. At the time it closed its doors Lucy J. Phillips, the clerk of the district court of Woodson county, had on deposit to her credit as such officer the sum of $2703.76. She brought an action against the receiver for this amount, on the theory that it constituted a trust fund. She recovered a judgment, and the defendant appeals.
The contention is made in behalf of the plaintiff that she placed the funds which she held as clerk in the bank as a special, deposit. It was shown that for a time she deposited money received in her official capacity, together with that belonging to herself, in her name individually, without anything to indicate its character. Within a few months, however, she changed this practice and caused the funds in her official custody to be transferred to her account as clerk, thereafter making deposits and checks by that designation. A running account was kept and deposits were made and checks drawn in the usual course of business for a period of over four years, an ordinary pass book being used and monthly statements being rendered., She testified concerning the transfer: “I told Mr. Rieker [the president of the bank] the most of the money on deposit was held by me as clerk of the court, and wanted it arranged so that it would show that it was office money and not a personal account, and he suggested that I deposit it in this way, so that it would show kept separate. . . . Told him I wanted to change it and put the clerk’s money to a deposit so it would be separate.” The question was asked: “But your idea was that you would separate your personal funds from those others; that is right?” She answered: “Yes, well, I wanted my .personal funds separate from the others, and I also wanted it so it would be there and could be checked out at any time.” ' It is clear that the deposit was general. To have made it special the arrangement must have contemplated the safe-keeping and return of the very money left with the bank. The manner in which the business was conducted, the use of the pass book, the issuance and payment of checks, the balancing of the account, all indicate the ordinary relations between banker and depositor. (The State v. Dickerson, 71 Kan. 769, 81 Pac. 497; 3 R. C. L. 518, 519, 522.) The purpose of the plaintiff that the money should “be there,” so that it could be checked out at any time, is one which actuates most depositors, and does not imply an understanding that the bank was to keep and return the identical bills and coins left with it.
The claim of an officer for funds deposited by him in a bank which has thereafter become insolvent is entitled to no priority of payment merely because of their public character. (3 R. C. L. 644; Note, 8 Ann. Cas. 116; 5 Cyc. 514.) And with respect to a national bank probably no state law could create a preference on that ground. (Davis v. Elmira Savings Bank, 161 U. S. 275.)
But where public funds are deposited in violation of law in a bank which has knowledge' of the facts, the title does not pass, and a trust ex maleficio results which in case of insolvency may be enforced against the receiver or other custodian, so far, at least, as they have come into his hands, and in some jurisdictions to the extent by which the assets under his control have been thereby increased. (3 R. C. L. 555; Notes, 5 L. R. A., n. s., 886; 16 L. R. A., n. s., 918.)
Therefore the question to be determined is whether the clerk of the district court may lawfully place on general deposit, to his credit as such officer, the funds that come into his hands in that capacity. There is no statute which expressly allows or expressly forbids such course. His bond is conditioned for the payment to the proper person of all moneys received in his official capacity, and the faithful discharge of his duties. (Gen. Stat. 1909, § 2245.) His duties are described as those required by law or the rules and practice of the courts, including the safe-keeping of papers and awards. (Gen. Stat. 1909, § 2246.) A public officer or other custodian who holds money not his own, merely for safe-keeping until occasion shall arise for lawfully paying it out, has, of course, no right to use it in his own business or to permit its use by others. This is not merely because of the risk of loss, for all risk can not be avoided, and such a disposition in a particular case might be the safest course that could be adopted to prevent loss. But to part with, the title and right of possession amounts to a conversion, and is under the condemnation of the law whether a loss results or not. The placing of funds on general deposit in a bank involves the consent to its using them in its business. If the transaction is taken out of the general rule which forbids a mere custodian to part with the title to the specific money entrusted to him, it is because the commercial world recognizes-the putting of funds in a bank as the natural, usual and proper way of keeping and taking care of them, because of its obligation, enforced by governmental supervision, to have on hand at all times the cash to meet any call for a deposit, notwithstanding its relation to -its depositors is technically that of a debtor to creditors.
In two Kansas cases the deposit of public funds by a treasurer (of a board of education and a city, respectively) has been treated as wrongful, but in each he was the manager and cashier of the bank, and the illegality of the transaction was-not denied, the question in dispute being the extent to which the trust fund could be traced. (Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658; City of Larned v. Jordan, 55 Kan. 124, 39 Pac. 1030.) It has also been held that the statute forbidding a county treasurer to permit any corporation or individual to use public money under his control prevents his lawfully de positing it in a bank except by; express statutory authority, this interpretation being affected by other legislation on the subject. (The State v. Lawrence, 80 Kan. 707, 103 Pac. 839.) The case just cited notes the difference of judicial opinion as to whether a general deposit in a bank is within a prohibition against the “loan” of public funds. (See, also, Bank v. Lanier, 78 U. S. 369; Warren v. Nix, 97 Ark. 374, 135 S. W. 896; Ricks v. Broyles, receiver, 78 Ga. 610, 3 S. E. 772; The State v. Rubey, 77 Mo. 610, 619; State v. Bartley, 39 Neb. 353, 58 N. W. 172; State v. Hill, 47 Neb. 456, 66 N. W. 541.) The supreme court of Iowa, in overruling an earlier decision which gave an affirmative answer to the question, said:
“The. contention of appellee is that the law forbids such an officer [a school treasurer] from making a general deposit of public money, even though in his name as such, for the reason that thereby the title to the fund passes to the bank, and a technical conversion results, and that any contract having a tendency to induce an officer to swerve from the line of duty is, of necessity, inimical to the principles of sound public poliey. Were this position correct, it would be a matter of profound regret, for nearly every county, city, and school district treasurer in the state has interpreted the law otherwise, and, according to this view, placed the funds of the'public in jeopardy, and exposed himself to criminal prosecution. For, if depositing with a bank for safe keeping amounts to conversion, they would seem to be open to the charge of embezzlement, and might have difficulty in regaining the moneys from the depositories participating in the wrong by receiving the funds. Common prudence seems generally to have dictated the deposit of public moneys with solvent banking corporations for safe keeping. To require the officer to retain these in his personal custody would impose- an exceedingly onerous burden, so out of keeping with what is deemed essential for the safety of the funds that one so proposing would experience difficulty in procuring sureties on his official bond. ... If that decision [Lowry v. Polk County, 51 Iowa, 50, 49 N. W. 1049] is to be adhered to, then the hundreds of public officials of this state who have placed the moneys coming into their hands as such in the solvent banks of the state for safe keeping, in pursuance of a custom prevailing since the formation of this commonwealth, and in harmony with business usages of the commercial world, must be denounced as embezzlers. ... We are not ready to so declare. Better that Lowry v. Polk County, in so far as holding the general deposit of money- a loan, be overruled. It has been disregarded, because of business necessity and prudence, ever since announced. It is unsound in principle and contrary to authority.” (Hunt v. Hopley, 120 Iowa, 695, 697, 702, 703, 95 N. W. 205.)
The supreme court of Wisconsin used this language in the course of an opinion determining that the state treasurer vio lated no law in making general deposits of public funds in banks, notwithstanding statutes requiring him to “pay over . . . the 'same moneys received and held by him by virtue of his office,” and providing for examiners to “see that all the money appearing by the books ... as belonging to the several funds is in the vaults of the treasury.” (p. 504.)
“These deposits were made in the name of the treasurer, in his official capacity as such. No time of credit was given upon them, but they were payable whenever required by the treasurer, and they could only be drawn on the official draft or check of the treasurer. They were made in accordance with the usual and long-continued course of business in that department of the state government. . . . Under these circumstances it is reasonable to hold that the state treasurers were justified in transacting the business of their department as they did transact it, and as such business is almost invariably conducted in the commercial world, unless those methods were prohibited by some statute of the state.” (The State v. McFetridge and others, 84 Wis. 473, 507, 508, 54 N. W. 1.)
It is held in this state that the bondsmen of a township treasurer are not exonerated by the fact that the money in his hands has been lost through the insolvency of a bank in which he had deposited it. (Rose v. Douglass Township, 52 Kan. 451, 34 Pac. 1046.) Howevér, the fact that the law countenances a deposit in a bank as one of the methods that an officer may select for the care of money held in his official capacity does not imply that by pursuing that course he can relieve himself from liability for its loss. (Note, 36 L. R. A., n. s., 287.) In Wyoming it has been held that the title to moneys deposited by an officer in that capacity remains in the public. (State v. Foster, 5 Wyo. 199, 38 Pac. 926.)
In view of the manner in which business in this country is ordinarily conducted, the natural course to be pursued by the custodian of a fund to which additions are continually being made, and frqm which payments may be demanded at any time, is" to place it on general deposit in a bank and check upon it as occasion arises. A special deposit is not necessarily any safer, than a general one, and is usually regarded as more hazardous. To keep the money in his personal possession would often involve an unreasonable risk, and to place it in a safety deposit box, where that is available, involves too cumbersome a method of disbursement to be at all in keeping with modern customs. We do not think the legislature must be re garded as intending that all funds in the hands of custodians charged with their safe keeping must be withdrawn from circulation unless the statute expressly authorizes their deposit in a bank. We conclude that the clerk of the court acted lawfully in placing in the bank the money in her official charge, and therefore that the title passed and no trust resulted. This conclusion makes it unnecessary to consider any question as to the tracing of the funds into the hands of the receiver.
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
Johnston, C. J.:
In this action Charles M. Wallace, the owner of a mill and mill dam on the Walnut river, seeks to recover the sum of $49,500 for water pumped and taken from his mill pond by the city of Winfield and sold by it to the inhabitants of the city. He also seeks to enjoin the defendant from going on with certain condemnation proceedings, the building of a dam and the appropriation of the water for the use of the people of the city.
To supply water to the city and its inhabitants the defendant has erected a plant upon a piece of land known as the Fair Grounds tract bordering upon the Walnut river. Up the river from this tract are the Baden mill and dam, and below it the Tunnel mill and dam, the latter being the plaintiff’s property. The defendant had originally pumped its water from an intake above the Baden dam where a right had been condemned in 1883 to take all the water necessary to supply the city. After establishing its plant on the fair grounds tract the defendant abandoned its intake above the Baden dam, and since then has secured its supply from an intake below that dam and within what is called the plaintiff’s mill pond. Some time prior to August 5, 1914, the defendant undertook to erect a dam across the river near the lower intake, having secured a right to do so from a landowner adjacent to the river. In an action brought at that time by the plaintiff the construction of the dam was enjoined by the district court and its judgment was affirmed by this court. (Wallace v. City of Winfield, 96 Kan. 35, 149 Pac. 693.) The facts relating to the water rights in the river ac quired by the plaintiff and the effect which the proposed dam would have upon his property are set forth in that case, and upon these facts it was determined that the building of the dam by the defendant would materially infringe upon the rights of the plaintiff, and that this could not be done without condemnation of the water privileges and the payment of compensation to the plaintiff. The defendant then proceeded to condemn a right to erect a dam and take water at the point named, which is near the waterworks plant, in order to supply water to the municipality and its inhabitants. Condemnation was effected before the board of county commissioners which made an award of compensation to the plaintiff. He obj ected to the condemnation but did not perfect an appeal from the award made by the board. Subsequently he brought this action, and in the first count alleged that he was the owner of the water privileges and of all the water in the river between the Baden dam and the Tunnel dam; that the defendant had taken water there without right from October, 1913, to October, 1915, amounting to 990,000,000 gallons, and had sold it at seven cents per thousand gallons, aggregating an amount and value of $69,300. 'The plaintiff credited the account to the extent of two cents per thousand gallons for the expense of pumping and distributing the water and asked judgment for the remaining sum of $49,500 as the value of the water appropriated by the defendant.
The defendant moved to strike out of the first count the averments to the effect that the plaintiff was the owner of the water which flowed along the river between the two dams and which alleged a right to the value of the water taken by the defendant, and also the averments relating to the money received by the defendant from the sale of the water to the people of the city; and this motion the court sustained. The averments stricken proceed on the theory that a recovery may be had for the value of the water taken from the river by the defendant rather than for the loss or injury which he sustained by being' deprived of the use of the water taken by the defendant.- It was determined in Wallace v. City of Winfield, supra, that the plaintiff had acquired water power rights in the river and that the taking of water at the lower intake was a material interference with the plaintiff’s rights by not only diminishing the quantity but depriving him of the use of the water to which he was entitled under rights previously acquired. For this interference and deprivation he is entitled to reasonable damages to the extent of the injury sustained by him. However, he had no title to the water in the river, no right to sell it, nor to recover the sale price of water taken from the river. He had not withdrawn the water from the river and reduced it to possession, nor had he taken any steps which had changed its character and given him a property right in it.
In City of Syracuse v. Stacey, 169 N. Y. 231, 62 N. E. 354, the court said:
“Water, when reduced to possession, is property, and it may be bought and sold and have a market value, but it must be in actual possession, subject to control and management. Running water in natural streams is not property and never was.” (p. 245.)
Since the plaintiff had acquired no ownership in the watef • the extent of his recovery is the injury to the use occasioned by the defendant. Unless he has suffered injury from the interference with his rights and the deprivation of the use to which he was entitled, no compensatory damages can be recovered. He is entitled to nominal damages for the illegal diversion of the water and also any actual damages proven. (Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, 70 L. R. A. 971; Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S. E. 87, 22 L. R. A., n. s., 684; Elgin Hydraulic Co. v. City of Elgin, 194 Ill. 476, 62 N. E. 929; Crawford Co. v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889; Gillis v. Chase, 67 N. H. 161, 31 Atl. 18, 68 Am. St. Rep. 645; Harris v. Railway Company, 153 N. Car. 542, 69 S. E. 623, 31 L. R. A., n. s., 543, and Note; 40 Cyc. 552; 2 Farnham’s Waters and Water Rights, § 462; Gould on Waters, 3d ed., § 204.) The motion to strike was therefore properly allowed. Whether or not the remaining ■allegations are sufficient to entitle the plaintiff to recover damages is not raised by the motion. Ih the judgment it is recited that no request for permission to amend the petition was made, although the defendant offered to submit to a judgment against it for nominal damages.
In the second count of the petition, to which a demurrer was sustained, the principal legal question presented for review is whether, having previously condemned a right to take water from the river above the Baden dam, the defendant had exhausted the power delegated to it to obtain water privileges at the lower point on the river. In the earlier case between these parties, the court, after speaking of the former condemnation and the infringement of the plaintiff’s right by the attempt to take water at the lower location, said:
“The duty of supplying the inhabitants of the defendant city with water is imperative, and the necessity for obtaining water at this place may be pressing, but the city is vested with the power of eminent domain and may obtain the right to take water from the stream by condemnation and the payment of compensation to those who may be injured or from whom any property rights may be taken.” (Wallace v. City of Winfield, 96 Kan. 35, 38, 149 Pac. 693.)
The legislature has determined the necessity and expediency of condemning a right to take water for a water plant and •delegated to cities of the second class the exercise of that power in order that they may supply their inhabitants with water. (Gen. Stat. 1909, § 1405, as amended by Laws 1911, ch. 116.) The necessity for the appropriation of the right to take water is to be determined by the municipal authorities and the board of county commissioners before which the proceedings are had. It is conceded that the use is a public one, and the courts have no authority to control the reasonable exercise of the power by the legislature directly or by the officers to whom it has been delegated.
In Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684, it was said:
“Courts may not interfere to limit or control the discretion of the lawmaking power as to the character, quality, method or extent of the •exercise of the power of eminent domain by a private person or Corporation engaged in the promotion of a public use, when once it has been determined that such use is a-public one.” (p. 488; 15 Cyc. 629, 634; Note, 22 L. R. A., n. s., 71.)
Has the defendant exhausted the right to condemn a water privilege because it exercised the power in 1883 at a point more than a mile above the new location? All property is held subject to the right of eminent domain whenever the public necessity requires it. It is a continuous sovereign right which can not be extinguished. The fact that the power delegated by the legislature to the defendant was exercised thirty-three years ago does not argue that the property deemed necessary for public use at that time meets the requirements of the present time, nor does it exhaust the power where those entrusted with its exercise determine that additional or other property is necessary to the public convenience or welfare. It was expressly decided in C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 26 Kan. 669, that the right of eminent domain was not exhausted by a single exercise of the power and that a previous condemnation of ground for depots and sidetracks did not preclude a second condemnation where the company determined that more land and enlarged facilities were necessary to the discharge of its duties to the public. In a later case, where land was condemned for shop grounds and terminal facilities and a second condemnation for a like purpose at the same station was made within a year, it was contended that the second proceeding was invalid. The court, however, held that it was a continuing power which might be exercised whenever it was deemed to be necessary. (Smith v. Railway Co., 90 Kan. 757, 136 Pac. 253.) The power to condemn is given to the city in general terms, and nothing in the language of the act indicates a legislative purpose to limit the exercise of the power to a single instance or to one set of proceedings. It is a right which the legislature or other agency to which the power is entrusted can not bargain away so as to prevent its use whenever a necessity arises.
In Cooley’s Constitutional Limitations, 6th ed., p. 644, it is said:
“When the existence of a particular power in the government is recognized on the ground of necessity, no delegation of the legislative power by the people can be held to vest authority in the department which holds it in trust, to bargain away such power, or to so tie up the hands of the government as to preclude its repeated exercise, ás often and under such circumstances as the needs of the government may require. For if this were otherwise, the authority to make laws for the government and welfare of the State might be so exercised, in strict conformity with its constitution, as at length to preclude the State performing its ordinary and essential functions, and the agent chosen to govern the State might put an end to the State itself. It must follow that any legislative bargain in restraint of complete, continuous, and repeated exercise of the right of eminent domain is unwarranted and void.”
(See, also, C. & E. I. R. R. Co. v. The People, 222 Ill. 396, 78 N. E. 784; C. & N. W. Ry. Co. v. Mechanics’ Inst., 239 Ill. 197, 87 N. E. 933; The St. L. H. & K. C. R’y Co. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S. W. 483; Kan. & Tex. Coal R’y v. Northwestern Coal & Mining Co., 161 Mo. 288, 61 S. W. 684, 51 L. R. A. 936, 84 Am. St. Rep. 717; Johnson v. Utica Water Works Company, 67 Barb. [N. Y. Supr. Ct.] 415.)
The facilities at the old location may be wholly inadequate at the present time and the conditions that exist there may be such as to demand a change of intake. The city is growing, and it is easy to understand that a plant deemed to be sufficient for the people a third of a century ago would not be sufficient to meet the demands for the greater population or to subserve the present public interest. It devolved upon the officers entrusted with the delegated power and discretion to determine what the public interest required, the expediency of making the change, the suitableness of the location for the new intake; and having decided it in good faith, the court can not substitute its judgment for theirs. The distance between the two locations shows that the second condemnation is not the mere taking of rights already possessed by the defendant, and under the petition it can not be held that the necessity for the condemnation did not exist nor that the power was fraudulently or illegally exercised.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Portee, J.:
William A. Power, at the time of his death, held a benefit certificate for $2000, issued by the defendant, a fraternal beneficiary association, and payable at his death to his wife. In this action she recovered judgment upon the certificate and the defendant appeals.
The beneficiary certificate and the application upon which it was issued provided that in the event of Power’s death “by suicide, while sane or insane,” the certificate should become null and void.
Power was forty-one years of age, and a boilermaker by occupation. His family consisted of himself, wife, mother and his daughter, four years of age. At one time during their married life he and his wife separated and lived apart for about six months. At the time of his death they were living together. On July 22, 1912, Power and his wife attended the funeral of a brother lodge member. They came home on the street car. His wife reached the house first and was engaged in preparing the evening meal when he returned. Soon after entering the house he took up a letter having something to do with his lodge insurance. He called to his wife and said that his rate of insurance had been raised and that his policy was only $1000 instead of $2000. His wife told him he was mistaken and he asked her to come and tell him how she figured it. She replied that she was busy. He thereupon grew angry, threw the paper down and said to his wife that she was “always doing something.” He accused her of coming away and leaving him at the end of the car line; she said that she had not done so intentionally. He swore at her and called her a liar and other names too vile to be printed here, and threatened that he would “knock her damned head off.” His wife went into the yard where his mother was. Power went into the bedroom, got his revolver, and followed his wife into the yard, cursing her. He tried to coax her into a shed but she would not go, and he held the revolver near his wife’s face. She threw her hand up and knocked it aside. He said not to do that as he was not going to hurt her. He stooped down,.kissed the little girl and told her “she would not have any papa any more.”
“He came over to where I was sitting and told me to come into the house. I refused to go unless he would put the gun away. He was still cursing and crying, called me a liar, foul names, and threatened to knock my head off. After two or three minutes he went into the house. His mother entreated him to hand her the gun but he refused and went into the house and locked the screen door. In less than a minute I heard two shots close together. I forced the screen door open and rushed into the house, found my husband lying on his back on the bedroom floor, blood spurting out from a hole in his temple, mouth wide open, eyes rolling, gasping for breath and gun tightly clasped in his right hand. He had evidently shot himself while standing before the mirror.
“Dr. Nave was called and reached the house in five minutes.' My husband never regained consciousness and died in forty-five minutes from the time he shot himself.
“There is no reason on earth that I know of which would have caused my husband to end his life in this manner.
“I have read above statement and certify same to be true and correct.
(Signed) Bertha M. Power.”
The quoted part of the foregoing is from the proof of loss furnished by the plaintiff to the defendant company. On the trial, however, she qualified some of the statements therein and testified:
“I did not tell Mr. Clark the notary public when he came to take my affidavit to the proof of my husband’s death that my husband had committed suicide. I don’t know that I told him anything as to what he died from. I knew I had to make proof of my husband’s death.”
She further testified that the paper was filled out by the notary and that she signed it without reading it. In her account of the circumstances as a witness at the trial she expressed no opinion as to the cause of her husband’s death, but her story of what happened did not materially differ from the statements contained in the proof of loss. The certificate of death, sent to the defendant company and signed by the physician who was called in, stated that the cause was suicide, but on the trial the physician testified that the statement was not made from his own personal knowledge.
The trial court gave the following instruction:
“The term ‘sane or insane,’ as used in the contract of insurance involved in this case, does not include a case of death caused by the act of the insured, William A. Power, without an understanding that the result of the act which he did would cause his death, and if the jury believe from the evidence that William A. Power came to his death by reason of a pistol shot fired by himself and further find from the evi dence that at the time he did so his mental faculties were so obscured and deranged that he did not understand that the firing of said shot was likely to or would result in his death, then you are instructed that his act was in the nature of an accident and that the provision in the contract of insurance between him and the defendant that said contract should be void if said William A. Power committed suicide when sane or insane would not prevent the plaintiff recovering a verdict.”
The jury answered several special questions, and found that Power came to his death by a bullet fired from a pistol into his head; that the pistol was discharged by himself, but further found that it was discharged accidentally and unintentionally; and they returned a general verdict in favor of the plaiptiff.
The instruction complained of presents the main question for determination. The instruction was erroneous. In the first place it is not in accord with the decisions of those courts which have adopted the doctrine that consciousness of the physical consequences of the act and an intention thereby to kill one’s self, must appear in order to render effective a clause limiting liability in case of death by “suicide, sane or insane.” It excludes all consideration of the intention with which the act was committed, and moreover, includes within the definition of “accident,” an act of self-destruction, which if committed by a sane person would be suicide, and thereby absolutely destroy the effect of the plain language of the policy, which declares that it shall be void in case of death by “suicide, sane or insane.”
In 17 L. R. A., n. s., 260-270, there will be found a very comprehensive note showing the conflict in the authorities on the question of whether consciousness of the physical nature of the act, and intention to take one’s life must appear in order to avoid the policy under this clause. In the note it is stated that a clear majority of the cases which have had occasion directly to decide the point, have held that the clause applies even though the insured was unconscious of the physical nature and consequences of his act and did not thereby intend to kill himself.
The plaintiff asks us to reexamine the case of Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284, 23 L. Ed. 918, which was cited with approval in Hart v. Modern Woodmen, 60 Kan. 678, 682, 57 Pac. 936, 72 Am. St. Rep. 380, a case to which we shall presently refer. It is urged that a reexamination of the Bigelow case will sustain the instruction given by the court in the present case.
The author of the note above referred to comments upon the apparent misapprehension as to the effect of that decision, arising from the fact that the court, without deciding the point, assumed the insured’s consciousness of the physical nature and consequences of the act, or his intention to kill himself, as appears from the following statement in the opinion:
“For the purposes of this suit, it is enough to say, that the policy was rendered void if the insured was conscious of the physical nature of his act, and intended by it to cause his death, although, at the time, he was incapable of judging between right and wrong, and of understanding the moral consequences of what he was doing.” (p. 287.)
If it were necessary to decide in the present case whether consciousness of the physical nature of the act of self-destruction and intent to take one’s life must be shown in order to render a clause of the kind in question effective, the doctrine declared in the case of Cady v. Fidelity & C. Co., 134 Wis. 322, 113 N. W. 967, 17 L. R. A., n. s., 260, would be very persuasive.
In that case deceased was a patient in a hospital in charge of a nurse, who left the room for some purpose, and when she returned he was gone, but was afterwards found dead at the bottom of an open elevator shaft. The trial court instructed the jury in substance:
“ ‘That suicide, sane or insane, involved an executed purpose to take one’s own life, and that, if Cady went over the railing pursuant to a design to take his own life, he died by suicide; but if, when he committed the act, though it was voluntary and involved carelessness, if it was not with a conscious purpose to take his life; if, by reason of his mental condition he did not appreciate the physical nature of the surroundings and consequences of his act, and intend to take his life — the result was not suicide within the meaning of the policy.’ ” (p. 330.)
The reviewing court approved the instructions upon the authority of Pierce v. Travelers’ Life Insurance Company, 34 Wis. 389, the syllabus of which reads:
“1. By the terms of a life insurance policy, the insurer was not to be liable in case the insured should “die by suicide, felonious or otherwise, sane or insane.” Held, that these words include every case in .which the insured kills himself by a voluntary act, the natural, ordinary and direct tendency of which is to produce death, and the physical consequences of which he has sufficient mental capacity to foresee — in other words, every case of intentional self-destruction.
“2. It would seem that the words of said condition do not include cases of unintentional or accidental death, though brought about by acts of the deceased involving negligence or carelessness.”
In the Cady case, supra, the court said:
“The effect of the decision above referred to is that, if one takes poison by mistake, or steps into an elevator shaft, not having in mind for the time being'its existence, or falls from a window or any place involving danger while walking in his sleep or flying from imgainary danger, he not having any mental purpose of self-destruction; and death ensues — such result is accidental. The court said, in effect, that death resulting from an act committed under the influence of delirium, as by one who, in a paroxysm of fear, precipitates himself from a window, or, having been bled, removes the bandage, or takes poison by mistake, and death ensues, never received nor deserved the name ‘suicide’ and is not within the meaning of the language, ‘death by suicide, felonious or otherwise, sane or insane.’ Such language does not include an act of self-destruction resulting in death, whether intentional or not, unaccompanied by a purpose to effect death, with the absence of all design to take life.” (p. 330.)
The Cady ease is classified in the note (17 L. R. A. 266) as one of those upholding the doctrine that consciousness of the physical nature and consequences of the act and an intent to kill one’s self must appear in order to render a clause of this kind applicable, and the author says that it is also supported by a few other cases in which the point was directly involved.
As suggested, the reasoning of the Wisconsin court appears sound. For it would seem that there must be some distinction made in those cases where death occurs as the result of an accident. Fatal accidents often occur to persons who are insane, accidents which would not have happened had the injured person been sane. It would seem that the reasonable construction of the phrase, “suicide, sane or insane,” should include every case in which the insured kills himself by a voluntary act, the nature and ordinary tendency of which is to produce death, that is, every case of intentional self-destruction ; and should not include cases of unintentional or accidental death, although the accident is brought about by the careless or negligent act of the deceased.
We think, however, the case at bar is controlled by Hart v. Modern Woodmen, 60 Kan. 678, 57 Pac. 936, 72 Am. St. Rep. 380. In the opinion in that case it was said in reference to the added words “sane or insane”:
“Such a condition does not admit of an interpretation to include death -by accident or by mistake, although it may have resulted from the immediate act of the assured, but under an exception such as we are considering, if the insured purposely takes his own life the insurer goes free.” (p. 683.)
The first case cited (p. 683) in support of this doctrine is the Wisconsin case of Pierce v. Travelers’ Life Insurance Company, supra. It is true that in the Hart case this court neither adopted nor repudiated the distinction between unconsciousness of the moral nature and quality of the act, and unconsciousness of its physical nature and consequences, because, as was stated in the opinion, there was no room for the distinction in that particular case, as the decision was based upon the ágreed statement of facts showing that the death was intentional. For this reason it is said by counsel for plaintiff in the present case that the mind of the court is still open upon the question. In our opinion it is still unnecessary for the court to adopt or repudiate the distinction between the unconsciousness of the moral nature of the act and the unconsciousness of its physical nature and consequences. In this connection it may be said that one of the main difficulties with the instruction complained of in the present case is that there was no evidence upon which it could apply.
There is no fact or circumstance in the evidence to take the case out of the rule which was carefully considered and declared in Hart v. Modern Woodmen, supra. The facts, about which there is not the slightest dispute, show that the deceased shot himself in the head with a . revolver with the declared intention of killing himself. There is no room for quibble as to the inference to be drawn from the facts. The erroneous instruction permitted the jury to wander at will through the realms of imagination and speculation, and without the slightest evidence to support it, to find that he did not know the physical results of firing the loaded weapon into his head. The finding that he did not know was obviously arrived at by the assumption on the part of the jury that a man of sound mind would not have done the act. It may be conceded that he was insane when he shot himself, and that his act was the result of an irresistible and uncontrollable impulse. But what fact or circumstance appears in the evidence that tends in the slightest way to show that he did not know the physical results of his act, or to sustain the finding that his death was the result of an accident ?
“It is further to be noticed that, even if this strict construction were adopted [consciousness of physical consequences], the instances would probably be somewhat rare in which it could be successfully invoked to escape the effect of the suicide clause, in cases where the insured, though insane, died by his own hand under circumstances which, in case of a sane person, would have compelled the inference of suicide, since it is obvious that a consciousness of the physical nature and consequences of the act, and an intention to kill one’s self thereby, may coexist with an unsound condition of the mind; and often, of course, even in case of an insane person, there may be unmistakable extrinsic evidence of an intention to kill himself. And frequently, if not generally, even where there is no such extrinsic evidence, there is an almost irresistible inference of such an intention from the very means by which he killed himself.” (Note, 17 L. R. A., n. s., 270.)
The known facts in the present case are not only inconsistent with the theory of accidental death, but they conclusively establish that the’ death was the voluntary act of the deceased. Here we have unmistakable extrinsic evidence of an intention to kill himself. We do not have to rely merely upon the means he used, but his declaration and conduct immediately before he went into the house and locked himself in, leave no room for speculation or uncertainty. No distinction can be drawn between this and the Hart case merely because the plaintiff here saw fit on the trial not to agree to the fact that the deceased intentionally killed himself. The. evidence was subject to a demurrer, although none seems to have been interposed.
The instruction complained of had no function except to authorize the jury upon pure speculation to find that the death was accidental, and that deceased did not know the physical consequences of his act. In view of the undisputed facts the Hart case is controlling.
It follows, therefore, that the judgment must be reversed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Alma L. Herrick as the beneficiary of a life certificate issued by the defendant, The National Council of the Knights & Ladies of Se- . curity, to recover the sum of $3000, which the defendant had agreed to pay upon the death of her son, George A. Herrick. The defendant refused to pay the benefit on the ground that the insured had given false answers to questions in his application for admission to the order, which, under the by-laws, were to be treated as express warranties. Herrick was examined by an authorized examining physician of the defendant on the 29th day of January, 1912, who certified that Herrick was a first-class risk, and the latter was admitted as a member on or about February 2. One of the questions in the application was: “Have you had any illness, constitutional disease or injury during the past five years iequiring the services of a physician or surgeon?” to which Herrick answered, “No.” In the early part of 1913 Herrick was discovered to be afflicted with a severe case of diabetes, from which he had apparently been suffering for several months. He was sent to Texas in an effort to improve his health, but he grew worse and died as a result of the disease in August, 1914. The case was tried by the court without a jury and judgment was given in favor of the plaintiff.
On this appeal the defendant contends that in his application George A. Herrick made false statements as to his physical condition, that these formed the basis of the insurance contract and, according to the terms of the certificate, defeats any recovery thereon.
Whether the statements were false or true was the only question in dispute between the parties. Upon it the evidence was conflicting. The trial court weighed the evidence and settled the dispute. The testimony of several witnesses, including the physician who was the accredited examiner of the defendant and examined George A. Herrick when he became a member of the order, was to the effect that he was then sound and well and had not had diabetes or any serious ailment before that time. About a year after becoming a member an examination by a physician disclosed that he had diabetes and, as we have seen, about twenty months after joining the order he died. According to the diagnosis of this physician, the diseased condition had existed about seven months prior to the examination. To repel any inference that Herrick had the disease when he made his application for membership, a physician testified that in the young the disease of diabetes runs its course in much shorter time than in the case of the aged, and that it might be expected to terminate fatally in less than a year in one of Herrick’s age. While one physician testified with considerable positiveness that Herrick had diabetes prior to the time he became a member of the order, his testimony was weakened to a great extent in the cross-examination. Besides, his appearance and manner in giving his testimony may have been more significant than his words. There was much. testimony in the case contradicting that given by him and which sufficiently supports the finding of the court. We have nothing to do, however, with the credibility of the witnesses or the weight of their testimony. That function has been exercised by the trial court and its judgment must be affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff brought this suit to set aside certain judgments sought to be made liens against his land, and to set aside judicial sales thereunder. The trial court found the facts to be that when the suit was begun the action of Krouse v. White was pending, based upon a promissory note executed August 14, 1910; the land in question was attached in that case, the attachment confirmed, judgment rendered and the land sold and bid in by the plaintiff and the sale confirmed, the redemption period being fixed at six months; White never appeared in the case, the only service on him being by publication based upon the attachment; that the records of the action showed the date of the note already mentioned; that the land was White’s homestead, proved up November 2, 1911, final receipt filed June 17, 1912, and the patent issued April 18, 1912; that the note was executed prior to the date of the final proof, but it was found that this fact was not disclosed to the court below; that before the period of redemption fixed by the court had expired defendant Houser brought another action against White; in Oklahoma he obtained judgment, which he transferred to Kearny county and sued upon there, procuring personal service upon White in Oklahoma but without filing in the court below an affidavit for service upon a nonresident; that he attached the land, obtained a judgment, and sold it at sheriff’s sale subject to'the attachment in the action of Krouse v. White; that prior to the expiration of the redemption period fixed in Krouse v. White, Houser paid to the clerk the amount of the judgment and costs in that case, making such-payment as a junior creditor and lien holder as he believed in good faith; that this action was brought by White to set aside all proceedings in the other cases.
The trial court quashed the service and sale in Houser v. White on the ground that no valid affidavit for service had ever been filed. Thereupon Houser filed his motion in that case setting up that he had redeemed the land as the junior lien holder and creditor, and prayed for subrogation to the rights of Krouse. He also answered in this action setting up his claim to be subrogated to the rights of Krouse in Krouse v. White, praying that the order of sale therein' be not set aside but that a sheriff’s deed be issued to him, Houser. The trial court found that Houser was entitled to subrogation as prayed for and to a sheriff’s deed, and from this ruling the plaintiff, White, appeals.
His claim is that the judgment in favor of Krouse in Krouse v. White was void for lack of service upon White, and because the land was a government homestead not liable for debts con tracted before the issuance of the final receipt, invoking section 2296 of the Revised Statutes of the United States (1875), providing that “No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” (6 Fed. Stat. Ann., § 2296, p. 307.)
The defendants argue that the action amounts to one to set aside or reverse the order of confirmation after the term and is brought too late for that purpose and that there is no statute authorizing it.
Aside from questions of service, it appears that the original judgment was rendered on a note executed before the issuance of a final receipt or patent, and from the findings of the court this was apparent from an examination of the record below. But it was expressly found that this was not disclosed to the court. The action really is not one to set aside the judgments but to relieve the land from the lien thereof on the ground that in obedience to the federal statute it must be left free therefrom.
When Houser paid his money to the clerk it was to redeem from a judgment wrongfully attaching to the land, basing his own claim on an attachment which had to be set aside for lack of service.
But while the Houser judgment was erroneously made a lien upon the land because intended by congress to be left free from such attachments, still the error did not oust the court of jurisdiction, and White’s remedy was by appeal or by opening up the judgment rendered on publication service, under the civil code. (Doran v. Kennedy, 237 U. S. 362.)
The judgment is affirmed.
West, J., and Dawson, J., dissent, citing Gile and another v. Hallock, 33 Wis. 523. | [
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The opinion of the court was delivered by
Marshall, J.:
Defendant John C. Madden appeals from a. judgment against him on promissory notes.
In 1912 Madden owned a gas and electric fixtures store in Topeka and sold it to William H. and Arthur Tucker, who gave-him four "notes therefor, each for the sum of $1101, payable in monthly installments of $183.50. Madden purchased some-land of the plaintiff and his son, and as part of the purchase price therefor -gave to the plaintiff three of these notes. The notes were signed by Tucker Electric Company, Arthur Tucker, and W. H. Tucker. Afterward the Tuckers desired to' reduce the amount of monthly payments and extend the time of payment of these notes. This was agreed to by the plaintiff on the condition that defendant Madden would sign the new notes the same as he had the original notes. On each of the new notes defendant Madden signed the following:
“In consideration of the cancellation and surrender of the original notes on which I was an endorser I hereby guarantee the payment of above note.”
The original notes had written on the backs thereof, and signed by defendant John C. Madden the following: “Protest and notice of protest waived and payment guaranteed.” Madden contended that this writing was fraudulently made, with out his knowledge, after he had signed his name on the backs of the notes, and that he did not know of the writing at the time he signed the guaranty on the new notes. The plaintiff contended that the writing was put on the notes in the presence of Madden and signed by him after being written. This question was submitted to the jury upon conflicting evidence, and the jury found against him.
Madden contends that the court erred in admitting evidence to show that the words “Protest and notice of protest waived and payment guaranteed,” were on the notes at the time they were signed by him. This argument is based on the theory that this evidence tended to contradict the terms of the written contract for the sale of the land by the plaintiff to Madden. In this contract the notes were described, but nothing was said about the manner in which the notes were to be transferred to the plaintiff or the obligation that, would be incurred by Madden in such transfer. This contention is not good. The evidence did not concern the original written contract in any way. The evidence concerned the notes. The dispute was not over the original contract. It was over the notes. The evidence on the one side said the writing was on the notes when they were signed by Madden; and on the other side that it was not on the notes when signed by him. The evidence was competent for the purpose of determining that question. Madden first introduced evidence concerning the writing on the notes. If it was evidence to vary, contradict, or add to the terms of the written contract, Madden was the first one güilty of violating the rule; and he ought not now complain. The plaintiff’s evidence was in rebuttal of that introduced by Madden.
Another complaint is that the court rejected evidence concerning a certain written memorandum which Madden claimed to have received from the Tuckers when they sent him the new notes for his signature. The memorandum was not signed. The evidence did not show that the plaintiff knew anything about it or ever saw it, or had anything whatever to do with it. It was properly excluded. The memorandum was not introduced on the motion for a new trial. It is not before us. The judgment can not be reversed because of its exclusion. (Scott v. King, 96 Kan. 561, 567, 152 Pac. 653.)
Another complaint is that the court erred in taking from the jury the question of whether or not the notes sued on were .guaranteed by Madden as part of the purchase price for the land received from the plaintiff, and in rendering judgment ■that Madden did guarantee the new notes for that'purpose. The court found that the indebtedness, $2985, the amount of the judgment, was the balancé of the obligation contracted by ■defendant Madden for the-purchase of the real property, and rendered a simple personal judgment against Madden for that -amount, with interest. The petition asked for personal judgment on the notes. Judgment was rendered as prayed for. The finding of the court on which complaint is made was correct and supported by evidence.
It is next contended that the court erred in giving an instruction that the jury could not find that defendant Madden was discharged by the alteration of the original notes, if any was made, unless such alteration was made by the plaintiff or was made by his authority. There was no evidence to show that any one other than the plaintiff or some one under his direction, altered the notes, if they were altered. The instruction fitted the evidence. Another instruction was that it was not to be presumed that the plaintiff altered the notes or that he caused such alteration to be made; that the burden of proof was on Madden to establish the alteration by a preponderance of the evidence. The instruction correctly stated the law.
It is finally argued that there was error in overruling a challenge tó a juror for cause. It appeared in the examination of one of the jurors that he was a borrower from the plaintiff and that his home was covered by a mortgage to secure the loan. Defendant Madden exhausted his peremptory challenges and complains that this juror should have been excused for cause. The statute does not make this a ground of challenge. To the trial court is committed the responsibility of securing a fair jury under the rules laid down in the statute; and unless an abuse of discretion is shown, or unless it is shown that a prejudiced jury was obtained, the rulings of a court on the competency of jurors will not be disturbed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The bank sued defendant to recover the sum of $1318.41, alleged to be an overdraft of his account. The sum sued for was made up of checks to the amount of $480.02, drawn on the bank by the defendant and duly paid, and a sight dráft drawn on him for $838.39 in payment of a carload of corn which was paid by the bank.
The defendant concedes the correctness of the amounts of the several items of the account, but claims he is entitled to credit for $1175, which he alleges he loaned the bank through its president, M. J. Bidwell. The bank claimed that the loan was made to Bidwell in his individual capacity and not to the bank. This question of fact was the sole controversy in the case. The jury returned a verdict in plaintiff’s favor, and judgment was rendered against defendant, from which he appeals.
The plaintiff introduced in evidence its bank books showing the individual accounts both of defendant and M. J. Bidwell. It is claimed this prejudiced the defendant, that it was error to admit the books in evidence because the entries were made when he was not present and could not bind him. They were the books made in the regular course of business and were competent evidence under the statute. (Civ. Code, § 384; Richolson v. Ferguson, 87 Kan. 411, 413, 124 Pac. 360; Barker v. Railway Co., 88 Kan. 767-770, 129 Pac. 1151; Cockrill v. Railway Co., 90 Kan. 650, 653, 136 Pac. 322; 17 Cyc. 382.) They were prima facie evidence showing the amount of the overdraft, and that the $1175 check which defendant gave, payable to the order of M. J. Bidwell, had been paid to Bidwell’s personal account. There was nothing on the check itself to give notice to the bank that it was money intended to be paid to the bank.
The draft for the corn was dated November 19, 1912, but was not charged to defendant’s account until February, 1913, and then under these circumstances: Bidwell had absconded and the bank was in charge of Mr. Thompson, deputy bank commissioner, who testified that he found the draft in the bank carried as a cash item, and that he at once directed the bookkeeper to charge it to defendant’s account. It is seriously contended that the evidence was improper, and very prejudicial to the defendant because, it is said, it gave the jury to understand that a state official, who testified he had no interest in the suit, had determined and decided that it was a legal charge against defendant, and it is argued that the jury were unduly impressed by the evidence. We think there was no danger of the testimony misleading or unduly impressing the jury. Besides, the draft was properly charged to defendant’s account, and he practically concedes this. He admits the draft was one authorized by him and was paid by the bank; and his sole defense is, that the bank owed him $1175 which he had loaned it and for which he should be given credit as against the draft and his other checks paid by the bank. He was not able to satisfy the jury that he loaned the money to the bank. The check given at the time he says he made the loan was payable to M. J. Bidwell or order. True, he says, Bidwell wrote the check and he signed it without observing how it was drawn, but the jury had the right to consider the fact that he had been president of the bank himself, and was supposed to have enough experience in banking to know how checks are drawn.
Mr. Thompson was also permitted to testify that in the customers’ wallet, where collections belonging to customers were kept, he found a note which was introduced in evidence. The note was for $1175,' signed by M. J. Bidwell and payable to defendant’s order. It bore the same date as the check. While it is true there was no evidence offered to show that the defendant had ever seen the note or knew that it was there, it was not error to admit the note and the testimony concerning it.
The court'sustained an objection to a question asked of the former cashier respecting his knowledge of the banking laws of the state prohibiting the payment of a draft where there are no funds to meet it. The objection was properly sustained. There is no doubt that the draft was paid and that •defendant got the benefit of it.
We find no error in the instructions. Taken together they correctly informed the jury of the real issues in the case, and the jury understood that if they found from the evidence that the loan was made to the bank and not to Bidwell, the bank was responsible for its return and the defendant would be entitled to a credit for the amount thereof.
We find no error in the record, and the judgment will be .affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff recovered judgment on a claim against his- father’s estate, which the probate court had rejected. The substantial ground of the appeal is’that actioii for compensation for six of the nine years service for which the claimant recovered was barred by the statute of limitations.
This is a second appeal. The nature of the appellee’s claim is stated in the opinion in the case of Schaffner v. Schaffner, 92 Kan. 570, 141 Pac. 251. The proof was to the following effect: The appellee’s'father was an invalid whose afflictions prevented him from farming the land on which he lived and which was mortgaged. The appellee had employment as a farm hand away from home. His father asked a neighbor to interview the appellee and ascertain if appellee would not come home and do the farming, stating that he was not able to do the farming and that he would pay appellee for his work. His father’s desire was communicated to the appellee, who came home, put the farm in good condition, improved it and successfully farmed it until his father’s death, which occurred nine years after he took charge. Before returning home appellee was receiving wages at the rate of $30 per month and,his father said he would pay the appellee $30 as long as he worked. In the nine years the appellee operated the farm he received no compensation for his services. Besides conducting his father’s farm he conducted others which he rented.
The appellants cite the cases holding that the statute of limitations begins to run at the end of each month when payment of wages is to be made at the end of each month. In this instance there was no express agreement that payment should be made at the end of each month. The plaintiff was not employed simply in the capacity of a farm hand to work from month to month. He came home to do the farming which his father was not able to do. He was to be paid the same sum he was receiving per month, not period by period, but as long as he worked. Consequently the promise was a continuing promise to pay kept alive by continuous performance on the part of the appellee and effective at the termination of the employment for the entire time. There was no evidence of any usage or custom fixing the time of payment under circumstances of the character stated and the rule announced in the case of Grisham, v. Lee, 61 Kan. 533, 60 Pac. 312, is applicable:
“If there is a single hiring, and the term of service of the employee and, also, the time when his compensation shall become due are not fixed by agreement or understanding, and the hiring and service continue without interruption or payment until the death of the employer, the employment, in the absence of the evidence of a general custom or usage, may be deemed continuous, and the statute of limitations will not begin to run against a claim for compensation until the services are ended.” (Syl. ¶ 1.)
In the case of Grisham v. Lee the facts were disputed and doubtful and the court held that the nature and terms of employment, if any, were matters for the jury to determine. In this case it was left to the jury to say whether or not a contract had been established. The proof disclosed the terms of the contract, if any existed, and the law declared the rights of the appellee under that contract.
The propriety of the court’s action in allowing an amendment of the claim was raised by the former appeal and was disposed of by the order remanding the cause for a new trial. (Estes v. Zinc Co., 97 Kan. 774, 156 Pac. 758.) The case was retried according to the rules of evidence stated in the former opinion.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
On July 18, 1901, R. P. Shulsky, who owned a¡ large tract of land in Doniphan county, made a will devising to each of his six children a separate piece of land. The first clause of his will devised eighty acres to the plaintiff herein, and reads as follows:
“First, I will and devise to my son, Alex B. Shulsky, the west half of the southwest quarter of section fifteen (15), township four (4) south, range nineteen (19) east, in Doniphan county, Kansas, for which a deed has already been made.”
In substantially the same language, the will made provision for each of the other five children. At the same time the testator executed six deeds referred to in the will,' conveying to each child the land mentioned in the will. The deeds and the will were placed in one envelope and handed by him to John Morley, a banker at Severance. On the outside of the envelope was a notation which Mr. Morley testified was in substance as follows:
“It instructed me to, shortly after I had knowledge of Mr. Shulsky’s death, to hand to the parties named in these deeds, the deeds, to hand them in person to the parties named, and to mail by registered mail to the probate court of Doniphan county, Kansas, the will.”
On June 27, 1906, Mr. Shulsky, the testator, called at the bank, asked for and received the envelope containing the instruments, took them away, and destroyed the deed to the plaintiff, the will and the envelope. On the same day he returned to the bank and handed to Mr. Morley an envelope which contained a new will, three of the same deeds he had taken away with him, and three new deeds. One of the new deeds conveyed to the plaintiff a life estate in the same tract of land described in the former deed, with remainder to the children of plaintiff. The former deed conveyed the title to the plaintiff in fee simple. The first clause of the new will reads:
“First: I will and devise to my son, Alex B. Shulsky, the west half of the southwest quarter of section fifteen (15), in township four (4) south, range nineteen (19) east Sixth P M in Doniphan county, Kansas, as per deed made to the same by me and dated June 26, 1906.”
Robert P. Shulsky died February 22, 1913. Thereafter plaintiff brought this suit against his daughter, Mary E. Shulsky, to quiet his title to the eighty acres of land, basing his claim of title under the deed of July 18, 1901, on the theory that the deeds placed in the envelope and handed to Mr. Morley were delivered by Robert P. Shulsky with the intent to make a present transfer of title to the grantees named in the deeds. Mary E. Shulsky, the defendant, claims under the second will, dated June 27, 1906. The trial court found for the plaintiff and rendered judgment quieting plaintiff’s title as against the defendant, who appeals.
The burden rested upon plaintiff “to prove the absolute unconditional delivery of the deed.” (Shattuck v. Rogers, 54 Kan. 266, 270, 38 Pac. 280.) The defendant’s contention is that the deeds placed in the original envelope were testamentary in their nature. The sole question is whether the instruments were intended to pass a present interest in the lands with only the right to possession, and enjoyment deferred until the maker’s death, or were intended to pass an interest only upon the death of the maker. The general rule is that where the instrument discloses the maker’s intention that it shall not operate until his death, it is testamentary in character and may be revoked. (Hazelton v. Reed, 46 Kan. 73, 26 Pac. 450.) In our view of the case, the intention of the maker is easily ascertained when the circumstances in connection with the execution of the deeds are considered. The deeds and the will of July 18, 1901, are all parts of the same transaction. The will contained the following statement:
“I have made, acknowledged and delivered to John M. Morley, banker at Severance, Kansas, warranty deeds to each of my said children, of the lands herein described as willed to them, with directions to deliver such deeds after my death and I hereby authorize and empower and direct the said John M. Morley within one month after my decease, to deliver to such of my said children the deeds for the lands granted -to them as set out and described herein and as described in said deeds respectively.”
The testator knew, of course, that his will was revokable at any time he saw fit to revoke it or to change the disposition of his property. He placed the will, however, and the deeds, to which the will referred, all in the hands of Mr. Morley at the same time, in the same envelope and with the same directions as to control. Subsequently he exercised the same dominion and control over the deeds as over the will, and, desiring to make another and' different will, he obtained the original in struments, destroyed the first will and made a new one, which necessitated a change in some of the deeds. The testimony given by Mr. Reeder, the attorney who drew the first will and the deeds executed at that time, shows that Mr. Shulsky wanted to make sure that each of the devises or provisions of the will would be carried out, and for that reason saw fit to make a deed direct to each devisee and to refer to the deeds. When he altered his plans and intentions with respect to the disposition of his property and made the neiv will, he very naturally made new deeds as part of the new will which they accompanied, and we think it is clear beyond question that they can not be construed otherwise than as testamentary in character.
“If a properly executed will incorporates in itself by reference any document or paper not so executed, whether it be in form of a will or codicil, or of a deed or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will. It is not essential that the paper referred to be itself a dispositive instrument. However, it is well settled that, in order that a paper may be incorporated in a will by reference, it must be referred to in the will as existing, and it must in fact be in existence at the time of the execution of the will.” (40 Cyc. 1094.)
“If a testator, in his will, refers expressly to another paper, and the will is duly executed and attested, that paper, whether attested or not, makes part of the will.” (Chambers v. McDaniel, 28 N. Car. 226, 229.)
“Another rule in regard to which there is complete unanimity of decision is that there are three essentials to the incorporation of an extrinsic document into a will: (1) There must be a distinct reference in the will to the document sought to be incorporated; (2) the extrinsic document must be so accurately described in the will as to assure its identity; and (3) it must be in actual existence at the time when suJi reference to it is made in the will.”. (Note, 68 L. R. A. 354.)
“It is certainly a well-settled principle in the law of wills, that a testator may so construct the disposition of his property as to make it necessary to have recourse to some paper or document in order to explain his intention, and to apply the provisions of his will to the subject-matter thereof. This is done by virtue of the principle of incorporation of the paper or document referred to into the will as part thereof; the will, in all other respects, being duly executed and attested as required by the law. In such case, the proof of the will sets up and establishes the paper referred to as a portion of the will itself, by force of the reference and the consequent incorporation.” (Vestry v. Bostwiek, 8 App. D. C. 452, 465.)
Applying the foregoing principles to the facts of this case, it' appears that all the requirements essential to the incor poration of an extrinsic document into the will are present. There was a distinct reference in the will to the deed; it was so accurately described as to assure its identity; it was actually in existence at the time the will was made.
The banker, Mr. Morley, was a witness and was asked whether it was his understanding at the time the papers were first placed in his hands, that Mr. Shulsky no longer had the right to take the deeds away. His answer was: “I don’t think so. I did n’t have that understanding; had I understood that, I would not have let him take them” away. He testified, too, that he had no recollection that anything was said, either by Mr. Shulsky or the attorney who came with him to the bank when the papers were deposited the first time, to the effect that Mr. Shulsky would have no right to take them away or change them. True, it does not necessarily follow that, because the deed was a part of the will, it may not at the same time be a good and sufficient deed. If there was an actual delivery of the deed when it was placed in the hands of the banker, and if it was the maker’s intention to pass a present interest in the real estate, possession and enjoyment alone to be postponed until his death, the deed controls. But in determining whether that was his intention, the fact that the deed was regarded by the testator as merely a part of the will, the fact that it was placed in the same envelope with the will, upon directions to deliver both at the same time in the event of his death, make it, in our opinion, manifest that he never intended to release his dominion and control over the deeds any more than over the will.
It follows, therefore, that the judgment will be reversed with directions to enter judgment for the defendant.
Marshall, J., dissents. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment on a negotiable promissory note. The defendants appeal.
For a statement of the facts in this case and of the questions involved, we quote from the defendants’ brief, as follows:
“On December 30, 1914, the appellee filed its petition against the appellants, declaring on five promissory notes of different dates, executed by the defendants. On April 6, 1915, the defendant, The Hutchinson Box Board & Paper Company, which will be hereinafter referred to as the Paper Company, filed its answer and cross petition; and on the same day the defendant Carey filed his answer and cross petition. The appellants set up an oral agreement between them and the appellee alleging that prior to and at the time of the execution of the first note, the appellee agreed by and with the appellants that if the Paper Company would borrow $14,000 as a revolving fund for the Paper Company, and the defendant, Carey, endorse the notes, that the notes should be made payable in ninety days, and that at the expiration of ninety days they should be renewed for another ninety days and so on for three separate renewals. That all of the notes sued upon were executed under the. same contemporaneous parol agreement. That the defendants had offered to renew the notes under the said parol agreement; had tendered new notes and payment of the interest, but that the plaintiff disregarding its said agreement had refused to carry out the same, demanded immediate payment of the notes and had brought suit upon them before the expiration of the said parol agreement, and that thereby the said suit was prematurely brought. Each answer also contained a cross petition, but the court at the time refused to consider the cross petition, and it is not material to this case. Plaintiff replied to the defendants’ answers by a general denial of each. On March 27, 1915, the appellee filed its motion for judgment on the pleadings, which motion was by the court overruled. Thereafter and on April 30, 1915, the case came on to be tried on the issues so framed to a jury. The jury failed to agree. On the 6th day of May, 1915, plaintiff in open court voluntarily dismissed the second, third, fourth and fifth counts of its petition as separate causes of action without prejudice, leaving the action pending on the first count. On the same day the plaintiff filed its motion for judgment on the pleadings as to the said first count, which motion was by the court sustained and judgment rendered in favor of the plaintiff on the said count, in the sum of $5308.18 and costs. From this judgment the appellants appealed and assign as error the sustaining of the motion for judgment and the rendering of the judgment in favor of the appellee and against the appellants.
“One sole question is presented by the record; whether the contemporaneous parol agreement to extend the notes as alleged in the answers of the appellants is valid and binding on the appellee. This is all there is to the case.”
The defendants rely largely on Moody v. Stubbs, 94 Kan. 250, 146 Pac. 346. There the court said:
“Where a husband and wife execute a deed upon property owned by her and she entrusts it to her husband to be delivered as security for a note executed by him to the grantee, and the husband without her knowledge delivers it under an arrangement made by him with the grantee that the note is to be renewed from time to time, extensions of the time of payment of the debt, made in pursuance of such arrangement, but -without the knowledge of the wife, do not effect the release of her property.” (Sybil.)
This shows facts altogether different from the facts in the present case. A principle of law was there applied altogether different from that now sought to be invoked by the defendants. The agreement for the extension of time in the Moody case was complied with. It was not set up to contradict the terms of the note. The fact that time was extended, not the agreement to extend time, was set up by Mrs. Moody for the purpose of showing that she had been released from the payment of the note.
The defendants cite a number of cases decided by this court. We have examined all of them. In Simpson v. Kimberlin, 12 Kan. 579; Babcock v. Deford, 14 Kan. 408; Weeks v. Medler,20 Kan. 57; McNamara v. Culver, 22 Kan. 661, 670, and Schoen v. Sunderland, 39 Kan. 758, 18 Pac. 913, cited by the defendants, the principle that parol evidence can never be introduced to contradict or vary the terms of a written contract is recognized. In McNamara v. Culver, supra, this language is found:
“Evidence of the situation of the parties, the circumstances surrounding the transaction, and of independent parol agreements not conflicting with the terms of the written instruments, was competent, and we do not see that any other material testimony was received.” (p. 670.)
Drake v. Dodsworth, 4 Kan. 159, recognizes the same principle in the following language:
“Parol evidence is not admissible to vary the terms of a written contract, especially when the parol evidence offered is concerning stipulations embraced in the written contract.” (Headnote, ¶ 4, 2d. ed.)
(See, also, Assurance Co. v. Norwood, 57 Kan. 610, 615, 47 Pac. 529; Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334; Roebuck v. Bank, 79 Kan. 862, 100 Pac. 621; Van Fossan v. Gibbs, 91 Kan. 866, 139 Pac. 174.)
The note provided for the positive payment of a certain sum of money at a fixed and definite time. The defendants sought to establish a parol agreement by which it was provided that payment of the note in money need not be made at maturity. This contradicted the terms of the note. This could not be done under the law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The state auditor was requested to register bonds issued by rural high school district No. 101. He refused, on the ground that notice of the election at which it was voted to issue them was published only eleven days in ■advance, instead of twenty-one days, as required by the statute (Laws 1915, ch. 311, § 2). This proceeding is brought to require such registration.
The proposition to issue the bonds received a majority of the votes cast, but not a majority of all who were entitled to vote, although more than sixty per cent of the electors had signed the petition for the calling of the election. Therefore it can not be said that the omission to publish the notice for the prescribed time could not possibly have affected the result. Whatever might be the rule otherwise, in such a situation the defect has been expressly adjudged to be fatal. (The State, ex rel., v. Staley, 90 Kan. 624, 135 Pac. 602.) The bonds having been issued without valid authority, the auditor properly refused to register them.
In the brief in behalf of the district an argument is made based upon the inconvenience and injustice that will result from a decision holding the organization to be invalid. The legal existence of the district, however, is not involved in this proceeding.
The writ asked for is denied. | [
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Per Curiam:
The defendants file a petition for rehearing. The fact that judgment was rendered in favor of the plaintiff on evidence was not stated in the former opinion of this court. After the demurrer to the petition had been overruled, the defendants were given leave to answer. They elected to stand on their demurrer. The journal entry of judgment recites that after hearing evidence on behalf of the plaintiffs the court rendered judgment in their favor.
This court decided most of the questions raised by the demurrer in favor of the defendants, but held the petition good as to certain facts therein alleged, which facts must be proved by evidence on a trial where they are put in issue. These allegations of fact are stated in the opinion, and it is on account of these allegations' that the petition was held good as against the demurrer. This court considered it neither just nor right that the defendants should be concluded on these questions of fact, although the defendants had been given an opportunity to answer and had deliberately elected to stand on their demurrer. It is right and just that they be given another opportunity to answer, if they desire to do so.
A rehearing is denied. The former opinion of this court is adhered to and the order therein made is confirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
In this case the state asks for a writ of mandamus directing the board of county commissioners of Reno county to issue a warrant for $1500 in favor of the board of state fair managers pursuant to chapter 177 of the Laws of 1915, which provides as follows:
“An act requiring the county commissioners to assist in payment of premiums for agricultural fair associations that have held two successful fairs, and repealing- all acts and parts of acts in conflict herewith.
“Be it enacted by the legislature of the state of Kansas:
“Section 1. That it shall be the duty of the county commissioners in Kansas to issue a warrant in favor of the treasurer of the county fair association, or any district fair association composed of less than one county, in their county, for a sum equal to one-half the amount of premiums paid by said county or district fair association, as shown by a sworn statement filed -with the county clerk by the president or secretary of said fair association, upon its exhibits of live stock, agricultural products, educational, art and domestic departments; and it shall be the duty of the county treasurer to pay said warrant; provided, however, that such fair association has been in actual operation and holding a fair for two years, and that the total appropriations from the said county commissioners upon the funds of the county shall in no instance exceed the following scale: That in counties with a population of less than 10,000, the amount so appropriated shall not exceed three hundred dollars. That in counties having a population of more than 10,000 and less than 20,000 the amount so appropriated shall not exceed six hundred dollars. That in counties having a population of more than 20,000 and less than 30,000 the amount, so appropriated shall not exceed more than one thousand dollars. Provided, that counties- of over thirty thousand population in which a state fair or a state-wide fair is held the county commissioners shall issue warrants as herein provided for $1500.”
The application for the writ recites that in full compliance with chapter 293 of the Laws of 1913 a state-wide fair was held at Hutchinson in Reno county, and that Reno county contains more than 30,000 inhabitants.
The defendant demurs to the application for the writ on the following grounds:
“Chapter 177 of the Session Laws of 1915, the same being house bill No. 97, is unconstitutional for the following reasons:
“First. It violates article 11, section 1, of the constitution of the state of Kansas.
“Second. The act contains two subjects.
“Third. That chapter 177 of the Session Laws, of 1915 is a special act.
“Fourth. That the classification in said chapter is arbitrary and without foundation.”.
These objections do not call for extended discussion. The act gives no offense to section 1 of article 11 of the constitution, which provides for a uniform and equal rate of assessment and taxation. This provision has frequently been construed to refer only to uniformity and equality of the assessment and rate of taxation throughout the territory where the tax is to be imposed. It does not mean that under all circumstances the aggregate percentage of tax levies in Reno county must always be the same as in all other counties. For example, Cheyenne county may be building a new courthouse; Wyandotte county may be constructing revetments on the Missouri river. These expenditures will necessitate differences in the total levies of these counties from those of Reno county. Here, in Reno county a state-wide fair has been conducted, and the legislature imposed a small share of the expense of that fair on Reno county. It was decided in The State v. Lawrence, 79 Kan. 234, syl. ¶ 4, 100 Pac. 485, that it was within the power of the legislature to impose part of the burden of establishing a university on the city honored and benefited by its location thereat; and in the same case it was held that such legislation did not violate the constitutional provision relating to uniformity and equality in assessment and taxation (syl. ¶ 5, and pp. 244, 245).
(See, also, Wulf v. Kansas City, 77 Kan. 358, 366, 94 Pac. 207; United States v. Railroad Company, 84 U. S. 322, 329.)
Does this act contain two subjects ? We think not. The gist of the act is to authorize and require boards of county commissioners to contribute to the expense of conducting certain fairs within their jurisdiction. Ordinarily two successful fairs must be conducted to entitle them to county aid, but a proviso is inserted to deal with the exceptional situation where a statewide fair has been conducted instead of an ordinary county or local fair. Clearly the contents of the act are all germane and pertinent to one subject. The scope of the title is Somewhat broader than the act itself, but that is not important. (Ash v. Thorp, 65 Kan. 60, 68 Pac. 1067.)
The body of the act does not require as a condition precedent to a contribution of county funds that the state-wide fair must be “successful” as indicated in the title. Thé text of the act would indicate that the word “successive” was intended instead of “successful.” Whether it does or not, two statewide fairs are not required to be held before county aid is to be extended. Moreover, we hardly think the success of a fair depends upon the existence of a cash balance of receipts over disbursements when all the accounts of the fair are settled. If that were the test of success, probably most of the great fairs and expositions would have to be chronicled as unsuccessful. If a financial balance was on hand after the fair’s expenses were paid, there would be no necessity for a contribution of county funds for its assistance. Since a fair is usually fostered and encouraged by public authority for its educational and recreative value to the people, it would seem that any fair which is truly educational and instructive in its exhibits of art, science, industry and husbandry, and which is well patronized by popular attendance, and which is conducted in orderly fashion, is a successful fair. Presumably if a statewide fair was attempted and ended in a fiasco, no contribution of county funds would be demanded.
Neither is the act constitutionally offensive as a special act. It is altogether general except as to the proviso touching the contribution to be made to state-wide fairs. As to the latter it is also general, although such fairs are not yet common. As time goes by and the interest in such fairs increases, we may look for such fairs in several of the larger counties of the state; and any successful state-wide fair held in any county of over 30,000 population will be entitled to the prescribed contribution from the county in which it is conducted.
The classification of the counties and the contributions which the various classes of counties may make toward the support of such state, county or district fairs is reasonable, and follows the established customs of this commonwealth on many phases of our legislation. Witness the classification of counties touching the maximum levies for county taxation (Gen. Stat. 1909, §§ 9395-9404) and the act fixing the salaries of county officers on a classified basis of county population (Laws 1913, ch. 197).
There appears to be no constitutional infirmity in chapter 177 of the Laws of 1915, nor any sufficient reason shown why the board of county commissioners of Reno county should not honor a voucher properly executed by the board of state fair managers and issue the statutory warrant thereon.
The writ is allowed. | [
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The opinion of the court was delivered by
Mason, J.:
On January 27, 1915, the bank commissioner took charge of the Citizens State Bank of Chautauqua, and shortly thereafter a receiver was appointed. It developed that the bank was insolvent, a condition obviously brought about largely at least through the fraudulent operations of its cashier, F. E. Turner. The Arnold Investment Company had purchased of Turner a number of notes and mortgages which he had forged, paying therefor in all $34,042.75. It brought an action to have the property in the hands of the receiver impressed with a trust for its benefit to this amount, on the theory that the money of which it had been thus defrauded had gone into and become a part of the assets of the bank. It recovered a judgment in accordance with the prayer of its petition, and the receiver appeals.
The question involved is whether the evidence was sufficient to support the judgment. It showed these facts: C. R. Waiter-house was cashier of the bank, owning a controlling interest, until January, 1913, when he sold out and was succeeded by Turner. Walterhouse had prior to this borrowed from the plaintiff (or from individuals who afterwards formed the plaintiff company), upon his own notes secured only by collateral which he had forged, to the amount of $25,041.08, and had sold to the plaintiff forged notes and mortgages endorsed by him, bringing the amount of his indebtedness up to $26,-577.58. Turner, apparently to save Walterhouse from exposure, took care of this paper as it matured, paying the holder out of the funds of the bank. Turner then, obviously for the principal purpose of filling or concealing the shortage in the funds of the bank thus occasioned, forged a number of notes and mortgages, payable to J. M. Vandeventer (the president of the bank) and himself, and endorsed by them, the Vandeventer signature being spurious, which he sold to the plain tiff. Transactions of this kind, by which the plaintiff paid $1789.79, took place prior to the time (October 1, 1913) when all the Walterhouse paper had been taken care of, and after that date the plaintiff was in the same way defrauded of $34,-042.75, the amount for which it obtained judgment in this action. The plaintiff paid for the forged paper, in each instance, by depositing the purchase price in a Kansas City bank, which was the correspondent of the Citizens State Bank, “to the credit of the Citizens State Bank, for the use and benefit of J. M. Vandeventer and F. E. Turner.” The Kansas City bank entered these deposits to the credit of the Chautauqua bank without qualification, holding them subject to its order, paying no regard to the designation of the beneficiaries except to repeat it in giving notice of the credit. As notice was received of each of these deposits, Turner caused an entry to be made on the books of his bank charging the Kansas City bank with the amount indicated, but no entry was ever made crediting it to Vandeventer & Turner, as would have been done if the transaction had been genuine. From time to time the fund in the Kansas City bank was increased by other items, the nature of which was not shown, and diminished by the payment of drafts issued by Turner as cashier, and other disbursements authorized by him in that capacity. When the account was closed by the receiver it had been reduced to $142.65. When the commissioner took charge the bank’s cash, including credits with its correspondents, amounted to about $3800. At the time of the trial, in February, 1916, the receiver had on hand between ■ $24,000 and $25,000 in money, $5000 of which had been collected on the cashier’s official bond, and a number of notes, some good, some doubtful, and some worthless, neither the face nor the actual value having been shown.
Although the plaintiff, at the time of the surrender of the Walterhouse paper, received the bank’s money in exchange for worthless securities, the transaction really amounted to its innocent acceptance from Walterhouse, in payment of his genuine indebtedness, of cash embezzled by Turner. Therefore the plaintiff’s title to the money is not assailable. (Benjamin v. Bank, ante, p. 361; Nassau Bank v. Nat. Bank of Newburg, 159 N. Y. 456, 54 N. E. 66.) And since this transaction was completed before the fraud sought to be redressed in this action was perpetrated, it can have no direct bearing upon the merits of the case. Turner’s knowledge of the fraud by which he obtained the money from the plaintiff is imputable to the bank, for which he acted in accepting the proceeds. (Peak v. Ellicott, Assignee, 30 Kan. 156, 162, 1 Pac. 499.) The plaintiff therefore has a valid demand against the bank as a general creditor. But its claim to a preference must be denied because it has failed to trace any of its funds into the hands of the receiver. It has not proved — and indeed it has not pleaded — that the assets that came into the hands of the receiver were increased by the' use that was made of its money. For anything that appears in the record substantially all the money, credits and other property held by the receiver may have been in the possession of the bank before the plaintiff bought any of the paper forged by Turner. To support its claim of priority the plaintiff was not required to show that any of the specific funds obtained from it reached the receiver, or to identify any particular property held by him as the proceeds thereof. But no recovery on that basis could be had without showing that the assets that came into the hands of the receiver were larger than they would have been but for the wrongful obtaining of the plaintiff’s money. It is not enough to show that the assets of the bank were increased by the deposit to its credit of the money obtained from the plaintiff. That condition necessarily results whenever money is paid to a bank, whatever may afterwards become of it. It is not enough that what may be called the net value of the insolvent estate to be administered has been increased — - that the discrepancy between the liabilities and assets is diminished — that the percentage disbursed in dividends shall be enlarged. The test is whether the money which was wrongfully obtained has been so disposed of as to increase the fund that reaches the hands of the person charged with administering the insolvent estate, to be by him distributed among the creditors. For instance, if the only assets that came into the hands of the receiver of a national bank should be the proceeds of an assessment upon the stockholders, it is clear that they could not be impressed with a trust with respect to. money wrongfully converted to its use by its officers, whatever disposition might have been made of it.
The plaintiff showed that its money, after being deposited in the Kansas City bank, was paid out on the order of Turner as cashier — that it was' used by the bank. But the rights of the plaintiff depend upon the particular use that was made of it. If the bank bought with it notes or other property that afterwards came into the hands of the receiver, in the original form or in some other, then to that extent the plaintiff was entitled to repayment before the declaration of any general dividend. But if it used the money to pay debts of Turner, or even to pay valid indebtedness of the bank, that circumstance does not make a preferred creditor of the plaintiff. The reason for the distinction is clear, although it has not always been regarded. Priority of payment can not be conceded to a particular creditor of an insolvent estate merely because his claim originated in a fraud practiced upon him. Such preference as he is given must be based upon the equities of the case, considering the rights of all the parties affected. If a solvent concern wrongfully appropriates the money of another to. its own use the effect is the same whether it buys property with it or pays a debt. But there no question of practical importance can arise as to the trust character of the claim, inasmuch as it can be collected in full in any event. In the case of an insolvent concern, however, the situation is entirely different. If the money misappropriated reaches the hands of the custodian who administers the estate, in its original form or in any other — that is, if the assets in his hands are thereby increased by the amount fraudulently obtained — the fund can be restored to the lawful owner and no one will be any worse off than if the transaction never had occurred. Restitution is made to the person defrauded, no one else is injured, and the original status is restored as to every one concerned. The transaction is simply undone, the result being the same whatever complications may have ensued, provided it is possible to establish that the fund to be disbursed has been made that much larger by reason of the wrongful obtaining of the money. But if the money is used to pay in full a claim against the insolvent, the claimant who receives the payment gets more than he is entitled to, at the ultimate expense of the other creditors, if full restoration be made of the misappropriated fund. Here the capital stock of the bank was $10,000. When it was looted of $25,000 to protect the forgeries of Walterhouse it of course became insolvent. For the purpose of illustration, let us assume that prior to this time its liabilities to creditors were $50,000 and its assets $60,000, so that on liquidation it could have paid its creditors and stockholders in full. Then by the embezzlement of $25,000 the stock was rendered valueless and each claim was subjected to a discount of thirty cents on the dollar, the aggregate of $50,000 in claims being reduced in actual value to $35,000. If in that situation the $30,000 (to use a round number) wrongfully obtained from the plaintiff were used to pay claims against the bank, its total indebtedness was thereby reduced to $20,000. If in such circumstances the receiver should now pay the plaintiff’s claim in full, there would remain but $5000 to be distributed among depositors or other creditors, as innocent as the plaintiff of wrongdoing or neglect,' who had parted with $20,000, and who, if the transaction between Turner and the plaintiff and the bank had never taken place, need have lost only thirty per cent of their investment, instead of seventy-five per cent. The fact that other creditors may have reaped a corresponding advantage, to which they were not entitled, affords no justification for inflicting this additional loss on their less fortunate associates.
The fund into which the misappropriated money must be traced (that is, the fund which must be shown to be larger by reason thereof than it would otherwise have been) in order that a preference may be allowed, is the fund derived from the property that is still on hand when the system is instituted of dividing the remaining assets of the insolvent among creditors in proportion to their demands. The defrauded claimant is entitled to receive from that fund just what he can show that he contributed to it, and no more.. He need not show that it is made up of the very specie obtained from him, nor need he be able to show that any particular portion of it resulted from the fraud practiced upon him. But he must show that it is larger by the amount of his claim than it would have been except for his contribution.
With respect to the views just stated there is little real difference of judicial opinion. Such as there is appears to arise less from a want of agreement upon the principles that should control than from a lack of uniformity in their application, and especially from the failure to keep in mind the distinction between an increase in the assets of an insolvent business as a going concern, and an increase in the assets that reach the hands of the person charged with winding up its affairs; between, on the one hand, preserving assets although changing their form from money to credit or to specific property, and, on the other, dissipating them by paying dollar for dollar on claims that should have been subjected to a discount. A majority of the court failed to give effect to this distinction in McLeod v. Evans, Assignee, etc., 66 Wis. 401, 28 N. W. 173. The same result was afterwards reached, in part at least, through the influence of that decision, in The Davenport Plow Co. v. Lamp, 80 Iowa, 722, 45 N. W. 1049; in Capital Nat. Bank v. Coldwater Nat. Bank, 49 Neb. 786, 69 N. W. 115; and in Carley v. Graves, 85 Mich. 483, 48 N. W. 710. But the-Wisconsin case was afterwards overruled (Nonotuck Silk Co. v. Flanders, 87 Wis. 237, 58 N. W. 383), as were the other cases, cited (two of them expressly and one by implication), so that in each of the four states named the law on the subject under discussion is now administered in accordance with the generally accepted rule, as it has already been stated (Bradley v. Chesebrough, 111 Iowa, 126, 82 N. W. 472; Fire & Water Com’rs v. Wilkinson, 119 Mich. 655, 78 N. W. 893; State v. Bank of Commerce, 54 Neb. 725, 75 N. W. 28; City of Lincoln v. Morrison, 64 Neb. 822, 90 N. W. 905). In Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658, this court cited with approval the earlier Wisconsin case, but in later decisions the-distinctions referred to have been noted and given effect, as. shown by these quotations:
“A trust is not imposed on the assignee unless the funds of the plaintiff actually came into his hands in their original form, or commingled' with the estate, or had been used by the assignor to swell and increase-the estate which passed by the deed of assignment. Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658; Hubbard v. Irrigation Co., 53 Kan. 637, 36 Pac. 1053. This cáse, unlike any other that has been considered' by this Court, rests on the bare presumption that the money came into. the hands of the assignee because it had been received by the assignor a. short time before the assignment, and had never been repaid to the plaintiff.” (Burrows v. Johntz, 57 Kan. 778, 782, 48 Pac. 27.)
“The fund itself, or something into which it has gone and which stands as its representative, must be on hand, subject to identification,. and separable from the general assets, in order to charge the assignee with the trust; or, if the fund has been so commingled with the general assets as to be incapable of identification or tracing, the estate which came to the assignee must have been augmented or bettered, in an appreciable and tangible way, in order to charge it with the trust. The mere saving of the estate by the discharge of general indebtedness otherwise payable out of it, or by the payment of the current expenses of the business, is not an augmentation or betterment of the estate, within the meaning of the rule.” (Insurance Co. v. Caldwell, 59 Kan. 156, 158, 52 Pac. 440.)
“In some of the cited cases the doctrine of the impressibility of insolvent estates with trusts was carried to the full length, and language is used which, taken apart from the facts in the cases, might give countenance to a rule that if the trust fund had been used by the trustee even for the payment of his general indebtedness, and without increasing the estate which passed to his assignee, it would be sufficient to charge the whole estate with a trust. . . . [Quoting the foregoing excerpt from Insurance Co. v. Caldwell.] . . . From the testimony, it appears to us that the trust fund went into and enlarged the assets of the bank, and that it was a part of the estate which passed into the hands of the receiver, and is, therefore, a charge upon it.” (Bank v. Bank, 62 Kan. 788, 794, 797, 64 Pac. 684.)
The principle by which the case is controlled is well settled, and a further review of the authorities is not regarded as necessary. (See, however, Lowe v. Jones, 192 Mass. 94, 78 N. E. 402, annotated in 116 Am. St. Rep. 230; Note, 15 L. R. A., n. s., 1100; Note, 86 Am. St. Rep. 802-807; Empire State Surety Co. v. Carroll County, 194 Fed. 593, 604, 605; Clinton M. & M. Co. v. T. Co. of N. A., 35 S. Dak. 253, 151 N. W. 998.)
The portion of the judgment awarding the plaintiff priority of payment is reversed, and the cause is remanded with directions to render judgment for the defendants on that issue. | [
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‘The opinion of the court was delivered by
MASON, J.:
In April, 1885, Charles Goff, to whom certificates of purchase for eighty acres of school land had been issued, one-tenth of the purchase price being paid, assigned them to his father, Thomas F. Goff, who took possession, completed the payments, and in 1905 received the patent, thereafter making valuable improvements. In June, 1913, the son brought an action against the father (joining other defendants to whom conveyances had been made subject to a life estate) for the possession of the land, alleging “that he received no consideration for the assignment of said certificate of sale save the promise of said defendant to hold same in trust for him and have patent assigned to plaintiff after twenty years having paid out on said land.” He also alleged in substance that in April, 1912, his father had put him in possession of "the land in pursuance of such agreement, and that he had made valuable improvements. A trial resulted in a verdict for the plaintiff, but a new trial was granted. The plaintiff appeals from the order granting the new trial, and the defendant complains of various rulings which he asks to have reviewed.
A number of special findings were returned, all of which were approved, excepting one to the effect that the defendant had put the plaintiff in possession of the land under the agreement referred to, which was set aside. The journal entry, after stating that fact, continues: “for the sole reason that said finding is not sustained by sufficient competent evidence . . . the court should grant a new trial in this cause.” The plaintiff testified that while living in Nebraska he had received two letters from his father; that he did not have them and did not know where they were, but that they stated in substance that if he would return home his father would turn over the land which he had been holding in trust and would build thereon a house for the plaintiff and his family. In behalf of the plaintiff substantially this argument is presented: The motion for a new trial was sustained solely because the court concluded that it had erred in admitting evidence of the contents of these letters, without better proof of their loss; no error was in fact committed in this respect because the only objection made to the evidence was too general to raise any question regarding the nonproduction of the letters; therefore the new trial was granted upon a mistaken view of a pure matter of law, which can be corrected on appeal. A flaw in this reasoning lies in the assumption that the court, if convinced that the evidence regarding the letters had been properly admitted, would have approved the finding based in part thereon. We do not think the language of the entry, that the finding regarding the transfer of possession was not sustained by sufficient competent evidence, is to be interpreted as an assertion that it was sustained by sufficient evidence if that concerning the letters was to be considered. The finding could not be made a basis of the judgment without its having been affirmatively approved by the trial court, and its approval, subject only to the competency of certain evidence, can not be implied merely from the statement that it was not sustained by ■sufficient competent evidence.
The trial court filed a written opinion giving the grounds of his decision. The plaintiff suggests that this forms no part of the record, and can not overcome the recitals of the j ournal entry. It may, however, aid in the interpretation of the language there used. It indicates other grounds for the granting of the new trial, but these may be disregarded. It gives some color to the plaintiff’s contention by enumerating error in the reception of the evidence of the contents of the letters as one basis for such action. But upon the whole it tends to strengthen rather than weaken the view that the court was unwilling to approve the finding concerning the change of possession.
Inasmuch as the verdict may have been based in part upon the finding which was set aside, it falls with it, and the order granting a new trial must stand unless it can be said that the remaining findings in themselves require a judgment for the plaintiff.
The finding relied upon as having that effect consists of an affirmative answer to this question: “Did the defendant, Thomas Franklin Goff, obtain an assignment of the certificate of purchase issued by the state, through the county of Graham for said lands from the plaintiff Charles Goff, upon an agreement that the said defendant would pay out on the land and hold the title to same in trust for said Charles Goff for 20 years, and at the end of that time take the title thereto and hold it in trust for said plaintiff, Charles Goff, and deed it to him?” The agreement referred to was not in writing, and was rendered unenforceable by the statute forbidding the creation by parol of express trusts concerning lands. (Gen. Stat. 1909, § 9694; Grantham v. Conner, 97 Kan. 150, 154 Pac. 246, and cases there cited.) A trust did not arise by implication of law from the facts found.- The plaintiff, as the holder of the school-land certificate, was practically the owner of the land, subject to the claim of the state for the unpaid purchase price. He assigned the certificate to his father for a recited money consideration. This amounted to a conveyance of the title, and in the absence of fraud or mistake is regarded as conclusive evidence of the transfer of the beneficial interest, precluding a showing of want of consideration for the purpose of establishing an implied trust. (15 A. & E. Encycl. of L. 1125; 39 Cyc. 116.) The finding does not disclose any circumstances outside of the mere agreement indicating that the grantee was not intended to take beneficially, nor that the grantee’s promise to reconvey was made with a fraudulent purpose, nor that any fraud was practiced except as the failure to perform the promise might be regarded as amounting to fraud. The refusal to carry out a verbal promise to reconvey land the title to which is transferred by a deed absolute on its face can not in itself constitute such a fraud as to make the grantee a trustee for the grantor by operation of law. The fraud which will produce that result must be something more than the refusal to perform the oral contract, such as the use of deception or other unfair means in procuring the conveyance. (28 A. & E. Encycl. of L. 883; 39 Cyc. 171, 178, 179; Note, 39 L. R. A., n. s., 906, 911.) The matter is sometimes affected by the confidential relation of the parties to the contract (Note, supra, pp. 924, 926), but the mere fact that they are father and son does not establish the necessary dependence of one upon the other, such for instance as arose between an absentee father and his children in Lehrling v. Lehrling, 84 Kan. 766, 115 Pac. 556, or between an attorney and his client in Bartholomew v. Guthrie, 71 Kan. 705, 81 Pac. 491. We conclude that the finding of the jury that the father obtained the assignment of the certificate of purchase from his son upon an agreement that he would pay out on the land and hold the title in trust for twenty years, and then, having completed payment and obtained a patent, make a reconveyance, does not show the existence of a trust arising by implication of law. Therefore no error was committed in granting a new trial.
The defendant complains of the overruling of a demurrer to the petition and to the plaintiff’s evidence. The petition, besides setting out the oral agreement to reconvey the land, alleged that the plaintiff was induced at considerable expense to return from Nebraska by his father’s promise that he should have the land; that he was placed in possession of it and made valuable improvements. These allegations were sufficient to constitute a cause of action on the theory of a part performance of the oral contract (Note, 39 L. R. A., n. s., 928; 39 Cyc. 52), and the plaintiff’s testimony had some tendency to support each of them. Other assignments of error on the part of the defendant are either covered by what has already been said, or, in view of the granting of the new trial, do not require to be passed on.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The facts in this case are, that a tract of mortgaged land was sold to satisfy a judgment in foreclosure amounting to $2769.24 and costs, the bid being $6250. The owner, desiring to redeem, was required to pay, on the amount of the bid, the rate of interest which the mortgage bore, ten per cent; but claiming that only the statutory rate of six per cent could be collected on the difference between the amount of the judgment and the amount of the bid, he paid such difference under protest and sued to recover. The trial court held against him, and he appeals.
The law applicable was declared in Clark v. Nichols, 79 Kan. 612, 100 Pac. 626. The fact that in that case the bid was substantially the amount of the judgment can not change the rule. The matter has been admirably presented by able counsel, but upon full consideration, no legal cause appears for departing from the decision referred to.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of assault and battery, and appeals.
The cause originated in the city court of Atchison where the defendant was convicted of assault and battery only, on a complaint charging assault and battery, disturbance of the peace, and use of improper language. The defendant appealed to the district court where he was again tried on all the charges contained in the complaint. The court submitted to the jury the charges of assault and battery and disturbing the peace, and the jury found him guilty of both those offenses. When the motion for a new trial was heard the court set aside the verdict so far as it related to disturbing the peace and sentenced the defendant for assault and battery only. The journal entry of judgment contains findings of the trial court to the following effect: On the trial no objection was made to the introduction of evidence on the two counts of the complaint; the district court had no knowledge of the ¡fact that the defendant was found guilty in the city court of the charge of assault and battery only; the first information of the fact the court had was at the argument on the motion for a new trial; the evidence offered at the trial was equally applicable to the charges of assault and battery and disturbing the peace; if the appellant had been tried on the charge of assault and battery only the evidence would have been identically the same as on the two charges on which'he was found guilty.
The assignments of error are that the court assumed jurisdiction to try the defendant on the charge of disturbing the peace; that the court erred in instructing the jury with reference to an offense of which he was not guilty — disturbing the peace; that the court erred in rendering judgment on the verdict of guilty of assault and battery after setting aside the portion of the verdict relating to disturbing the peace, and that because of these errors a new trial should have been granted. The argument is that the proceedings recited could not have been other than prejudicial to the defendant.
Objection was made to incorporating in the journal entry the findings referred to and objection is made to consideration of them by this court. It is not necessary to take the findings into account in determining the appeal. None of the proceedings at the trial except those already referred to is presented to this court. Considering the findings as eliminated, this court has no knowledge of the character of the evidence introduced or of any objections by the defendant to the course pursued. If the defendant went to trial without objection on all the charges contained in the complaint, made no objection to the evidence tending to sustain those charges, and made no objec-, tion to instructions to the jury relating to disturbing the peace as well as to assault and battery, he can not now complain, because the court has made no ruling against him. If the evidence introduced were pertinent to all the charges, timely objection to it would have been unavailing, and whatever error was committed in submitting the charge of disturbing the peace to the jury was corrected by the judgment. Prejudicial error is not made to appear and under the well settled rule prejudicial error must be made to appear by the proceedings presented for review to warrant a reversal. Consequently the court has no course open to it but to affirm the judgment, and it is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on two promissory notes, the defendant’s name having been written on the back of the notes by his son, F. L. Johnson. The defenses were that the defendant’s name was written on the back of the notes without authority and without consideration. The cause was tried before the court without a jury. The court made findings sustaining both defenses and rendered judgment accordingly. The plaintiff appeals and assigns as error that the findings were not sustained by sufficient evidence.
The notes belong to Lee Histed, the plaintiff being a holder for collection only. The notes were signed by David Hively and were payable to W. S. James. James was a member of a partnership known as the Cooperative Realty Company, doing business at Del Norte, Colo., and the notes were in fact property of the partnership. The partnership was composed of W. S. James, W. E. Chenoweth, M. I. Chenoweth, F. L. Johnson, and J. T. Johnson. The notes were turned over to Histed in part payment for water rights connected with the Russell Springs lakes. Histed claimed he had an understanding that the notes should be indorsed by all the members of the realty company. M. I. Chenoweth’s name was signed by W. E. Chenoweth and J. T. Johnson’s name was signed by F. L.. Johnson. The defendant resides in Kansas, and was not in Colorado at the time the notes were turned over to Histed. He had no knowledge of the fact that his name appeared on the notes and had no knowledge that they had been turned over to Histed until long afterward. The proof was clear that F. L. Johnson had no express authority to indorse his father’s name on the notes.
F. L. Johnson resides in Colorado. Years ago he resided in Kansas. For a time he operated his father’s farm, and while doing so drew checks on his father’s account to pay bills. For five years before going to Colorado he had not transacted his father’s business. When F. L. Johnson went to Colorado he was crippled, and his father, in order to help him, authorized him to check on his father’s account if he needed money. After the formation of the realty company the defendant gave F. L. Johnson permission to sign his name in making contracts with men to whom lands were sold and in transferring stock to individuals, but that was the extent of F. L. Johnson’s authority. Authority of an agent to bind his principal by indorsing ne-' gotiable paper is strictly limited, will not be lightly inferred, and must ordinarily be indispensable to the conduct of the business intrusted to the agent. (2 C. J. 636.) The district court was correct in refusing to find an implied agency.
Histed knew of the permission to sign the contracts and transfers of stock referred to. This knowledge was of a special and limited agency and gave Histed no right to assume that F. L. Johnson had authority to bind his father by indorsing negotiable paper. Consequently agency by estoppel was not established.
The note was shown to the defendant by an attorney who held it for collection. There is some dispute about what was said at the time, but it may be assumed the defendant was asked if he was claiming F. L. Johnson had no authority to sign his name, and replied, “No, that is not my defense.” Estoppel to set up the defense of want of authority based on this conversation was not pleaded, and the defendant’s statement can be considered only as bearing on the existence of authority, express or implied, and as bearing on ratification.
The defendant did not answer a letter from an attorney for the plaintiff demanding payment of the notes, because he did not believe he owed anything. This fact and the statement referred to in the preceding paragraph did not establish ratification as a matter of law.
It is said that the plaintiff received and retained the benefit of the transaction giving rise to the delivery of the notés bearing his indorsement, and so ratified the conduct of his son. The argument is this: The liability of the realty company to Histed for the purchase of the .water rights was reduced by the amount of the notes. If the defendant does not pay the notes he shares nevertheless in the reduced liability of the realty company. The notes, considered merely as Hively’s notes, were not accepted in part payment for the water rights. All the members of the partnership were to indorse them, and, prima, facie, partnership liability will still exist if Histed has not received what he bargained for. Besides this, the proof was that the consideration which Histed gave the partnership for the notes failed, so that it can not be said the plaintiff has received any benefit which repudiation of liability on the notes requires him to restore.
Failure of consideration was pleaded and was proved by the following testimony:
Testimony of J. T. Johnson:
“Q. That.is what I want to find out, Mr. Johnson, why didn’t you at that time notify Mr. Moses or Mr. Wilson that your son had no authority to sign your name on these notes? A. I did not answer that at all. I did n’t think I owed him anything. I got no value received.'
“Q. When the company was formed these notes belonged to the company, did n’t they? A. Well, I don’t know, they were made out to Mr. James. I never received any value for the notes.”
Testimony of F. L. Johnson:
“Q. 1 These 'notes were originally given by the company in payment of certain water rights, were they not? A. Yes, sir.
“Q. Which included the transfer of certain water rights by Mr. Histed to the company? A. Yes, sir.
“Q. Did the'company ever get these water rights? A. No; his title proved to be valueless-.
“Q. Did the company ever get the water rights that these notes represent? A. They never did.”
The plaintiff says he was -an innocent holder against whom failure of consideration can not be urged. The proof was clear that, as has been stated, he was holder for collection. The plaintiff makes certain explanations and criticisms of the testi mony quoted, but offers nothing which disqualified the district court from considering and relying upon it. The issue of want of consideration was clearly made and no evidence contradicting that quoted is abstracted.
Only the most material portions of the evidence have been referred to. The court can not spend much time discussing questions of fact. The findings are abundantly sustained, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
This appeal presents in new form an old question relating to the power of the district court over the homestead of parties to a decree of divorce when awarding alimony.
The plaintiff was granted a divorce from his wife, the defendant. The abstract states that the title to their homestead was in the plaintiff. The homestead was awarded to the defendant, subject, however, to a lien in favor of the plaintiff for $700. The lien not having been discharged within the time limited, an order was issued for the sale of the property. The appeal is from this order, the contention being that the court had no power to disturb the defendant’s homestead rights, existing before the divorce and continuing afterward, because of the terms of the homestead provision of the constitution. (Art. 15, § 9.)
The substance of the defendant’s contention was presented to this court in the case of Brandon v. Brandon, 14 Kan. 342. In that case the wife was granted a divorce and was awarded the homestead, the title to which was in the husband. He claimed the court had no power to make an adjudication of property rights which would compel him to surrender his homestead. The contention was declared to be unsound and is unsound for reasons stated in the opinion. The principle involved, which is that in awarding alimony and in adjudicating property rights in a divorce case the district court may deal with the homestead as with other property, was approved and applied in the case of Blankenship v. Blankenship, 19 Kan. 159. In that case the husband, having title to the homestead, was granted a divorce. Alimony awarded the wife was made a lien on the homestead. The homestead was sold to satisfy the lien and the sale was confirmed.
It is said that under no circumstances could the husband be awarded alimony and that the only discussion in the books relates to awards to the wife for alimony and not to awards to husbands. This is a play on words. The husband was not awarded alimony and was not awarded anything else in the sense in which alimony to a wife is awarded. The court evidently thought the defendant should have the homestead, but that the entire homestead property was too much for her. So the award of the entire homestead was in effect reduced in value by the sum of $700 to be paid to the husband and to be a charge against the property in his favor.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
in this action the state seeks to compel the mayor and commissioners of the city of Lawrence to issue certain bonds.
Under chapter 101 of the Laws of 1905 (Gen. Stat. 1909, •"§§ 744-747) as amended that city voted to issue bonds in the ■sum of $175,000, for the purchase of a waterworks plant. The ■defendants refused to issue the bonds, and contend, first, that there is no law providing for their issuance; second, that the •election at which they were voted was improperly conducted.
The defendants’ argument on their first proposition is that section 7 of chapter 124 of the Laws of 1913 repealed chapter 101 of the Laws of 1905, and for that reason there is no authority in that law for issuing bonds.
The law of 1905 has been amended, but we will now discuss this question the same as if these amendments had been in the law at the time of its enactment. The title of chapter 124 of the Laws of 1913 is as follows:
“An act authorizing cities of the second and third class whose total indebtedness shall not exceed 15% of its total assessed valuation now -owning and operating a system of waterworks to issue bonds for the purpose of enlarging, repairing, extending, and improving such system.”
This law is composed of eight sections, the first six of which ■ are restricted in their application to the classes of cities named in the title of the act. There is nothing in these six sections that applies to any city other than those of the classes named in the title. Section 7 of the act reads:
“Chapter 101, Laws of 1905, being sections 53, 54, 55, compiled Laws of 1909, section 165, chapter 18, compiled Laws of 1909, section 1, chapter 75, Laws of 1911, and all other acts or parts of acts in so far as they conflict with the provisions of this act, be, and the same are hereby repealed.”
Section 8 is immaterial in this discussion.
The defendants argue that the grammatical construction and punctuation of section 7 of the act show that it was the intention of the legislature to repeal all of chapter 101 of the Laws of 1905, and to repeal all other acts or parts of acts in so far as they conflict with the provisions of chapter 124 of the Laws of 1913. The language used in section 7 of this act is capable of two constructions. One is the construction contended for by the defendants. The other is that all of the laws specifically named, and all other acts or parts of acts are repealed, in so far as the laws specifically named and the other acts, or parts of acts, conflict with the provisions of chapter 124 of the Laws of 1913. “They,” in the clause “all other acts or parts of acts in so far as they conflict with the provisions of this act,” .may refer to all the laws specifically named and to all other acts or parts of acts conflicting with the provisions of chapter 124 of the Laws of 1913, or may refer only to the other acts or parts of acts.
That this section was carelessly drawn is conclusively shown by its reference to “sections 53, 54, 55, compiled Laws of 1909.” Those sections refer to matters altogether foreign to the subject now under consideration.
Under these circumstances, it is proper to examine the title of the act and the body of the act itself to ascertain the intention of the legislature as declared in section 7. (Note, 2 L. E. A. 610; 36 Cyc. 1128.) There is nothing in either the title or the body of the act that shows any intention whatever on the part of the legislature to interfere with any law on the subj ect of issuing bonds for the purpose of purchasing or building public-utility plants by cities in this state.
Chapter 123 of the Laws of 1913 may be taken into consideration to determine whether or not the law of 1905 has been repealed. Chapters 123 and 124 were passed by the same session of the legislature and were approved two days apart. Chapter 123 took the place of chapter 75 of the Laws of 1911, which last-named chapter amended section 1 of chapter 101 of the Laws of 1905 (Gen. Stat. 1909, § 744). Under the statutory rule of construction (Gen. Stat. 1909, §9037), chapter 123, so far as its provisions are the same as those of any prior statute, must be construed as a continuation of the provisions of the prior statute, and not as a new enactment. Chapters 123 and 124 of the Laws of 1913 must be construed together and harmonized. (In re Hall, Petitioner, 38 Kan. 670, 17 Pac. 649; Telegraph Co. v. Austin, 67 Kan. 208, 212, 72 Pac. 850; The State v. Pauley, 83 Kan. 456, 461, 112 Pac. 141; Hibbard v. Barker, 84 Kan. 848, 851, 115 Pac. 561; Railway Co. v. Railway Commissioners, 85 Kan. 229, 233, 116 Pac. 896.) Effect must be given to all the provisions of each act, except where their provisions are so antagonistic that both can not be made to operate. Chapter 124 does not cover all the ground embraced in chapter 123, and for that reason chapter 124 does not repeal chapter 123, at least so far as it applies to, cities not owning- and operating a system of waterworks.
The repeal of chapter 101 of the Laws of 1905, except in so> far as that chapter conflicts with the provisions of chapter 124 of the Laws of 1913, is not embraced within the title of the latter act. That title is very restricted. It applies to cities .of the second and third classes now owning and operating a system of waterworks. Any legislation not embraced within, the title would be in violation of section 16 of article 2 of the state constitution. It is not necessary that the title of an act shall state that it repeals other laws, where the laws repealed are within the contemplation of the title. However, if the law repealed is not within such contemplation, the repealing clause violates the constitutional provision the same as if the act itself contained an unconstitutional provision.
In The State v. Sholl, 58 Kan. 507, 49 Pac. 668, this court said:
“Section 16 of article 2 of the Constitution applies as well to bills which change the law by repealing acts already in force as to the enactment of new laws; and where it is sought to change the law by repealing statutes then in force, the bill for that purpose must contain only one subject, which must be expressed in its title.” (Syl. ¶ 2.)
(See, also, Northern Pac. Exp. Co. v. Metschan, 90 Fed. 80; Abel v. Eggers, 36 Nev. 372, 136 Pac. 100; 36 Cyc. 1032.)
If the construction of section 7 of the act of 1913, contended for by the defendants, were the correct one, that section would be unconstitutional. Under repeated decisions of this court, the section should, if possible, be held to be constitutional. (Comm’rs of Cherokee Co. v. The State, ex rel., 36 Kan. 337, 13 Pac. 558; In re Pinkney, Petitioner, 47 Kan. 89, 95, 27 Pac. 179; The State v. Guiney, 55 Kan. 532, 534, 40 Pac. 926; Rathbone v. Hopper, 57 Kan. 240, 244, 45 Pac. 610; Wilson v. Herink, 64 Kan. 607, 609, 68 Pac. 72.) Our conclusion is that the legislature, by section 7 of chapter 124 of the Laws of 1913, did not intend to take from the cities of Kansas the power to purchase or build public-utility plants.
The polling places were held open from seven o’clock in the morning until seven o’clock in the evening. The defendants contend that this vitiated the election; that the polls should have been opened at nine o’clock in the morning and closed at six o’clock in the evening. There is no pretense of fraud or other irregularity. In Russell v. The State, ex rel. Nicholson, 11 Kan. 308, it was said:
“A mere irregularity in conducting an election, which does not deprive a legal voter of his vote, or admit a disqualified voter to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election.” (Syl. ¶1.)
This principle has been followed in Jones v. The State of Kansas, ex rel. Atherby and Kingsbury, 1 Kan. 273, 279; Gille land v. Schuyler, 9 Kan. 569; Morris v. Vanlaningham, 11 Kan. 269; and Jones v. Caldwell, 21 Kan. 186. If the defendants are correct in their contention that this election was not conducted as directed by the statute, it was a mere irregularity, and such a one as does not render the election invalid. The polls were open during the entire time required by the law. Unless a wrong result was produced, the election must be upheld. No such result has been shown.
The defendants claim that this action can not be maintained because the plaintiff is not the real party in interest; that the real party in interest is the owner of the waterworks system, which the city, by its election, determined to buy. When the city voted to issue bonds to purchase the waterworks plant it became the duty of the city officers to issue the bonds as directed by law. When they refused to do so they refused to perform a duty imposed on them by law. If the law.makes it a duty of the city officers to issue the bonds, a proceeding to require the performance of that duty may be brought by the state, since it has an interest in seeing that public duties are not disregarded by public officers. (The State, ex rel., v. Faulkner, 20 Kan. 541; The State v. Lawrence, 80 Kan. 707, 103 Pac. 839; The State v. Dolley, 82 Kan. 533, 536, 108 Pac. 846; The State, ex erl., v. Doane, ante, p. 435, 158 Pac. 38.)
A peremptory writ is allowed, commanding that the bonds be issued. | [
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The opinion of the court was delivered by
Johnston, C. J.:
William Terry was charged with and convicted of committing a rape upon Pearl Terry, his thirteen-year-old daughter. A motion for a new trial was overruled, and on the 14th day of October, 1914, the court sentenced the defend ant to the penitentiary. Upon this appeal the defendant complains that the court erred in the admission of testimony, in the instructions given to the jury, and in holding that the verdict was supported by the evidence.
It is first contended that there was error'in receiving evidence of admissions made by the defendant before there was any testimony that an offense had been committed by any one. Ordinarily proof that a crime has been committed should precede evidence tending to implicate the defendant. It is a rule of convenience to aid in the search for truth, but is not an unbending one. The order of proof is a matter largely in the discretion of the court, and a departure from the rule which does not operate to the prejudice of the defendant is not ground for a reversal.
A complaint is made that thé court permitted the prosecution to cross-examine and contradict witnesses called in behalf of the state. Pearl Terry, upon whom the offense was charged to have been committed, made the complaint which initiated the prosecution, and in the preliminary examination she testified that her father had had sexual intercourse with her a number of times. At the trial she was again called as a witness and stated that her father had not mistreated her. She did admit testifying previously to instances of criminal conduct but stated that the evidence then given was not true. Having testified in support of the charge at the preliminary examination, the state naturally called her as a witness at the trial, and, her testimony being directly contrary to that previously given, it was not improper to permit the state to call her attention to her former testimony and to induce her, if she would, to correct her present testimony. Under such circumstances it was competent for the state not only to cross-examine her as to the in-, consistencies in her statements, but also to show by other witnesses that the facts were in accordance with her previous testimony, although it might incidentally discredit her present testimony. (Johnson v. Leggett, 28 Kan. 590; The State v. Sorter, 52 Kan. 531, 34 Pac. 1036; The State v. Moon, 71 Kan. 349, 80 Pac. 597; The State v. Hamilton, 74 Kan. 461, 87 Pac. 363; Nuzum v. Springer, 97 Kan. 744, 156 Pac. 704.) During her examination and when the inconsistencies in her testimony became apparent and she had stated that she had affirmed rather than testified under oath, the court admonished her that she was under the same obligation to tell the truth as she would have been had an oath been administered to her and if she had testified falsely she was liable for perjury just the same as though testifying under oath. Complaint is made of this admonition. Under the circumstances it can not be regarded as error.
It is next charged that the court erred in permitting the county attorney to cross-examine Mrs. Terry, the wife of the defendant, who was called as a witness for the state. She, too, proved to be an adverse witness, and it was claimed that her testimony conflicted with former statements made by her to a number of people. A part of the inquiry took on the character of a cross-examination, but most of the questions were asked and answered without objection. One of them, to which an objection was made, was answered,'but the answer was without materiality or prejudice.
Evidence which tended to impeach that given by Mrs. Terry and her daughter was received. ■ As we have seen, they were hostile witnesses, as much so as if they had been called by the defendant, and the state was justified in offering testimony which tended to contradict and impeach them. Much of the testimony of which complaint is made was received without objection and error can not be predicated on its admission. Some evidence was received which was in' the nature of hearsay and if an objection had been made to it upon that ground it should have been excluded, but' such objections were not made except in a few instances and then only immaterial answers were given.
Error is assigned on the refusal of the court to give a number of instructions that were requested but the defendant does not undertake to support them in argument, and the instructions given appear to fully cover the subjects of those which were requested, and those given fairly state the law applicable to the case.
Some contention is made that the evidence does not sustain the conviction, the principal contention being that proof of penetration is wanting. Some proof was offered as to this element of the offense, and sufficient, we think, to warrant the finding of the jury that the offense had been committed.
The final complaint is that judgment was not legally pronounced against the defendant in that he was not informed by the court of the verdict that had been returned against him and Lad not been asked whether he had legal cause to show why j udgment should not be pronounced against him. His motions for a new trial and in arrest of judgment indicate that he had learned of the verdict and had attempted to show cause why he should not be adjudged guilty. The statute provides for the statement and inquiry so that the defendant may at the last moment state or show any cause he may have why judgment should not go against him. (Crim. Code, §§ 248, 249.) The record does not show the omission of any of the1 steps essential to the rendition of a valid judgment, and we can not assume from the mere silence of the record that the court acted erroneously in this respect. In the entry of judgment it is recited that “the defendant . . . was . . . duly arraigned for sentence in open court, all the officers of the said court being present in person, and the court being fully advised in the premises passed sentence upon the said William Terry,” stating the sentence imposed. In the ordinary legal sense arraignment precedes a trial and is the calling of the defendant to the bar of the court to answer to the charge made against him. While the term is rarely used in speaking of the' bringing of the defendant to the bar for judgment, it would appear when so used to imply that he was called before the court to answer what reasons he had why j udgment should not be entered upon the verdict returned by the j ury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In the court below plaintiff recovered judgment for a sum claimed to be due from the defendant for premiums upon certain bonds executed by it as surety. The defendant appeals.
The plaintiff is a corporation authorized to conduct an insurance and Casualty business. The defendant is a corporation engaged in contract work. On November 15, 1910, the Kaw Valley Drainage District of Wyandotte county, which is a public corporation, let a contract to the defendant for the construction of levies and other improvements along the Kansas river. It becaihe necessary for defendants to furnish bonds, one to the drainage district for the faithful. performance of the contract, and one to the state of Kansas, guaranteeing the payment for labor and material. On the 23d of November, 1910, it applied to plaintiff to furnish the bonds, and in the written applications agreed that in consideration of plaintiff furnishing the surety it would pay for the performance bond, five dollars for every $1000 per annum on the amount of the contract each year in advance, and the contract price was estimated to be $500,000. For the bond running to the state it agreed to pay one dollar per thousand on the amount of the bond “each year in advance.” Upon these applications the bonds were executed by defendant as principal and plaintiff as surety. Thereafter defendant began work under the contract, and paid the yearly premiums in advance for the first year, and on November 23, 1911, paid them in advance for the second year. When the premiums became due for the third year it refused payment. The reasons for its refusal are thus stated by the secretary of the defendant company, who testified:
“Upon getting this statement from the plaintiff for the third year premium, I went before the drainage board and told them that we thought we had sustained sufficient damage on account of the changes in the work, etc., and that they should pay the premium on this bond, and they finally, after discussing the matter back and forth, said: ‘We don’t think you should pay it, and we want to save ourselves the expense of paying it, so we will just cancel it’.”
Thereafter and on January 26, 1913, the board of directors of the drainage district adopted a resolution reciting that about three-fourths of the work provided for in the contract had been completed, and that the board would retain ten per cent of all estimates under the contract, amounting approximately to $40,000, until the work was completed. In view of these conditions the resolution declared that the board can celed the performance bond, retaining in lieu thereof the percentage, and that the plaintiff company was released from all liability as surety on the bond. After the adoption of the resolution the drainage district turned the bond over to the defendant. The work provided for in the defendant’s contract was not completed until November 22, 1913.
The first contention is that defendant is not liable for payment of the premium, because the bond was canceled and plaintiff released from all liability thereon by the action of the drainage board. There are two reasons why the defense is unavailing. There was a contract between plaintiff and defendant by which premiums were to be paid each year in advance, and the agreement for payments in this way formed a substantial part of the consideration for the execution of the bond by the plaintiff. The attempt to cancel the bond and release the surety was through an arrangement between the drainage district and the defendant to which the plaintiff was not a party. The contract rights of plaintiff could not be destroyed or affected by the adoption of the resolution, nor by any subsequent agreement entered into without its consent, by defendant and the drainage board.
The second reason is that the drainage district was without authority to take any action looking to the release of the bond. The statute which required the giving of the performance bonds reads as follows:
“Every contractor shall be required to give a bond to the board of directors in a sum sufficient to secure the proper execution of his contract and conditioned to pay all damages which shall result to the landholders of the district, from failure to perform their contracts or by reason of negligence in the performance of the same.” (Gen. Stat. 1909, § 3026.)
The statute required the board to exact the bond, but conferred no power upon it to cancel the bond, or to release the surety before the completion of the contract. It had as much power to dispense with the taking of the bond in the first instance. If the board' could have canceled this bond on the ground that only one-fourth of the work remained to be completed, it could have released it at any time after the bond had been executed, and thus dispensed with it entirely. It is true the board is given (Gen. Stat. 1909, § 3006) certain general powers in the conduct of the business affairs of the district, but these general powers are not broad enough to authorize the board to cancel a bond of this character or to release the sureties thereon before the conditions of the bond have been performed. The statute requiring the board to take the bond is mandatory, and requires that the bond be conditioned to pay all damages to the landholders of the district occasioned by any failure to perform the contract, or by reason of negligence in the manner in which it is performed. Until the work was finally completed it could not be ascertained whether the landholders of the district would have claims against the contractor for damages. The bond is not for the sole benefit of the drainage district as a corporation, but its purpose is also to secure landholders of the district against damages. Notwithstanding the attempted cancellation and release the plaintiff’s liability as surety on the bond continued until the completion of the contract, and the release would not have furnished the plaintiff a defense to an action brought by a landholder.
The other contention made by the defendant is that the trial court erred in ruling out evidence offered to show a prevailing custom among bonding companies to rebate the premium for surety bonds where the work is completed during the year for which the premium has been advanced. The contract in this case is not ambiguous in any respect. Necessarily the number of years for which the defendant was to pay the premium was not stated, because it was not known how long the contract would require; but in plain, unambiguous language it was provided that the premiums be paid yearly in advance.
The parties might have contracted for a rebate based upon a proportionate or short-time rate for the fractional periods of the year; but they did not. Proof of a custom or usage among other companies can not supply such a contract, nor is such proof admissible or competent where the intention of the parties appears from the language employed. As was said in McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121, “But beyond this, usage or custom can not make a contract when the parties themselves have made none.” (p. 312.)
To the same effect see Eckhardt v. Taylor, 90 Kan. 698, 136 Pac. 218, and Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579. In the latter case it was said:
“Had there been in the terms of the written lease some ambiguity or uncertainty, or some obvious omission, evidence of usage or custom would have been proper to explain the ambiguity or to supply the omission. But there is nothing in the language of the instrument that is uncertain or that requires explanation; nor is there any obvious omission that can be supplied by proof of usage or custom.” (p. 521.)
The evidence as to custom was properly excluded and it fol-. lows that the judgment will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from an order overruling a demurrer to the following petition:
“Said plaintiffs allege that they are residents, property owners and tax-payers in Topeka and Mission township, Shawnee county, Kansas; that this action is one of common and general interest to the tax-payers of said townships and they bring this suit for themselves and for and on behalf of said tax-payers, generally, as well as for those residing within the benefit district referred to in the next paragraph.
“II. That September 22, 1915, a petition to the board of county commissioners of said county was filed with the county clerk, asking for the improvement of the Tenth Street Road, commencing at Washburn avenue, ar.d running west to the west line of Section 34, Township 11, Range 16, one mile of said road being within the limits of said Topeka township; that the petition prayed for the improvement of said highway by the use of crushed stone or macadam, with a top surface of Burmudez asphalt, or other asphalt, equally good, eighteen feet wide, to be paid flor in ten annual installments; that the prayer of said petition was granted by the defendant, September 27, 1915, and the improvement of said road ordered.
“III. That the petition for the improvement of said highway is not in compliance with the law, and is defective and insufficient in several respects, to-wit:
“(a) That it does not contain the-requisite number of signatures of land owners, as required by section 1, chapter 201 of the Laws of 1909,, which is designated in said petition as the law under which it is proposed to make such improvement.
“(b) That said petition was signed by certain persons who were not at the time bona fide owners within the designated district.
“(c) That J. E. House, as Mayor of the city of Topeka, signed said' petition, under purported authority of said city; that said act was unauthorized, illegal and void.
“(d) That-certain individuals assumed to sign said petition for and on behalf of the owners of a tract of land known as the Catholic Cemetery ; that they had no legal authority to sign said petition.
“(e) That some of the signatures to said petition -were obtained by false and fraudulent representations.
“IV. That the limitations of the district, as described in said petition, are irregular, illogical and unjust, and not of the Laws of 1909; that certain tracts of land whose owners were opposed to the contemplated' improvement in compliance with the spirit or the letter of chapter 201 were excluded, and other tracts whose owners were favorable to the improvement were included, arbitrarily, for the sole purpose of making-it appear that 60 per cent of the persons who own 50 per cent of the land within the district, were favorable to such improvement, and had signed the petition.
“V. That the cost of the proposed improvement is excessive, and out of proportion to any benefit that can accrue to the adjoining lands; that in many cases the annual tax to pay for such improvement will exceed the revenue derived from the land, and would amount to practical confiscation of the property.
“VI. That chapter 201 of the Laws of 1909 is unconstitutional and' void for these reasons:
“(a) That the mandatory provisions of the constitution of the state-of Kansas were not observed in its passage by the legislature.
“(b) That it imposes upon the township through which said road is projected, a portion of the cost of its construction, without giving -the township any voice, hearing or representation with respect to the same.
“(c) That it requires the township board to levy taxes in compliance with an order of the board of county commissioners for a debt which it had no voice in creating, thus depriving an independent municipal corporation of its power to levy and .collect taxes of its own volition, and to control its own affairs.
“(d) That the board of county commissioners has no discretion with xespect to such improvement, but must order the construction of the road in accordance with the petition presented.
“(e) That said chapter confers upon the petitioners legislative power.
“(f) That said chapter 201 was repealed by chapter 200 of the Laws of 1909.
“VII. That the defendant commissioners made no investigation of the sufficiency of said petition, took no evidence of the ownership of the real property within the designated district, made no examination of the records of real-estate titles in the office of the register of deeds of Shawnee county to determine the right of the petitioners to sign such a petition; but without evidence of the legality and sufficiency of the petition and in disregard of their official obligation and duty, arbitrarily, approved the • petition and ordered the improvement of the road as therein described.
“VIII. That chapter 201 of the Laws of 1909, and the amendments thereto, make no provision for notice of the proceedings for the contemplated improvement of any highway, to the land owners within the ■designated benefit district, or to the taxpayers of the township through which the road runs; and no notice of any kind,- actual or constructive, was served upon, or given to, these plaintiffs, to the taxpayers of Topeka and Mission townships, or the owners of land abutting the road described in the petition.
“IX. That the Tenth Street Road is only one of some twelve or fifteen important highways entering the city of Topeka, through said township, the improvement of each of which is equally important; that the improvement will impose upon the taxpayers of said township an unjust, ■excessive and oppressive burden for which no compensatory benefit would be derived, and would lead, to a demand for the same kind of improvement upon all the important roads entering the city.
“X. That the construction of said road, in accordance with the action already taken by the defendants, would cause irreparable injury to said plaintiffs for which there is no adequate remedy at law; that the defendants threaten, and are, in fact, proceeding to carry out their plans for the improvement of said highway, regardless of the wishes and in derogation of the rights of the residents and taxpayers of said township, and will do so unless restrained by order of this court.
“Wherefore, The plaintiffs pray that the said defendant be per manently enjoined from carrying out the order for the construction of said improvement, or from taking any further action, under said petition, and for such other relief as may be just and equitable.”
The defendants argue that the plaintiffs can not sue for the reason that they have not sustained any damage other than that sustained by the public in general. Comm’rs of Barber Co. v. Smith, 48 Kan. 331, 29 Pac. 559, and kindred cases are cited in support of this argument. In response to this the plaintiffs cite section 265 of the code of civil procedure, which in part reads:
“An injunction may be granted to enjoin . . . any public officer, board or body from . . . doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied . . . may unite in the petition filed to obtain such injunction.”
The act of the board of county commissioners will result in the levy of an assessment on the lands of the plaintiffs. If the act of the board is illegal it may be enjoined by any number of persons whose property may be affected by the assessment. This section of the code as it now appears was enacted in 1905. (Laws 1905, ch. 334.) Previous to that it read:
“An injunction may be granted to enjoin the illegal levy of any tax, charge or assessment, or the collection of any illegal tax, charge or assessment, or any proceeding to enforce the same; and any number of persons whose property is affected by a tax or assessment so levied may unite in the petition filed to obtain such injunction.” (Civ. Code, § 253, Gen. Stat. 1901, § 4700.)
Previous to the passage of the act of 19.05 parties situated as the plaintiffs are were compelled to wait until the levy or collection of the tax or assessment was attempted before they could maintain an action. In Gas Co. v. Railway Co., 74 Kan. 661, 87 Pac. 883, this court said:
“The difference between the act amended and the amendment is that the latter gives to the person seeking relief a right of action earlier in the tax proceedings, and also gives to such person a right to have an injunction against any public officer, board or body to restrain them from entering into contracts which would result in imposing upon his property an illegal tax. The plaintiff might have waited until an attempt was made to sell its property for the nonpayment of the taxes levied to pay this bonded indebtedness, but it was not compelled to do so. The statute gives the right of action at the inception of any attempt to create such illegal burden.” (p. 665.)
Under the law as it now exists the plaintiffs had legal capacity to sue and prosecute this action at the time it was commenced. (Pollock v. Kansas City, 87 Kan. 205, 123 Pac. 985; Hartzler v. City of Goodland, 97 Kan. 129, 154 Pac. 265; Arnhold v. King, 97 Kan. 576, 579, 155 Pac. 805.)
On the part of the defendants it is contended that the finding of the board of county commissioners on the sufficiency of the petition is conclusive, and The State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684, is cited. In response to this the plaintiffs point out the difference between the petition in the Holcomb case and the petition in this case. In that case the state by proceedings in quo warranto questioned the validity of the incorporation of the city of Zenda. The petition in that case alleged:
“That the petition presented to the board of county commissioners was not. signed by a majority of the electors of the unincorporated town and that the number of inhabitants was less than two hundred.” (p. 662.)
The board of county commissioners acted on the petition presented to them. The court said:
“The act providing for the incorporation of cities of the third class (Gen. Stat. 1909, § 1511) confers authority on the board of county commissioners to determine whether or not a petition for incorporation presented to it is signed by a majority of the electors of the unincorporated town. The authority thus conferred is jurisdiction, which attaches when a petition fair on its face and duly published is filed. Proceedings following resulting in an order effecting incorporation are the exercise of jurisdiction. The legislature' having authorized no appeal or other method of review, the action of the board of county commissioners is final and conclusive although irregular and erroneous, and can not be attacked by the state in an action of quo warranto prosecuted against the corporation except for fraud, collusion or other misconduct the substantial equivalent of fraud.” (Syl. ¶ 1.)
If the state can not successfully question the action of the board of county commissioners in the incorporation of a city it follows that a property owner and taxpayer can not question the action of the board in ordering an improvement under chapter 201 of the Laws of 1909. In the absence of fraud, corruption, or other misconduct the substantial equivalent of fraud, the findings of the board of county commissioners are conclusive on the courts. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; Williams v. City of Topeka, 85 Kan. 857, 118 Pac. 864; Spaulding v. Homestead, etc., Ass’n, 87 Cal. 40, 24 Pac. 600; Kirchman v. West & South Towns St. Ry. Co., 58 Ill. App. 515; McEneney et al. v. The Town of Sullivan, 125 Ind. 407, 25 N. E. 540; 28 Cyc. 1022.)
The plaintiffs maintain that the signing of the petition by J. E. House, as mayor of the city of Topeka, was unauthorized, illegal and void, and that the individuals who signed for the Catholic cemetery had no legal authority. Whether or not the petition was properly signed was one of the questions to be determined by the board of county commissioners. Their conclusion as to this matter is a part of their finding on the sufficiency of the petition and is binding on all parties. The city of Topeka has power to sue and be sued and to hold real property for the use of the city. (Gen. Stat. 1909, § 866.) It has power to protect that property by whatever legal means may be necessary. It can do the same things with reference to its real property that any other property owner can do. The petition to the board of county commissioners was drawn under section 1 of chapter 201 of the Laws of 1909, which section in part reads:
“Wherever sixty per cent of the landowners along the lines of • any regularly laid out road, who shall own at least fifty per cent of the land to be taxed, within such distance as shall be stated in the petition . . . shall petition the board of county commissioners of the county in which such road is located for the improvement of such road, or any part thereof, said county commissioners shall cause said road or part of road thereof to be improved as prayed for in said petition,” etc.
There is no restriction in this statute as to the legal character of the landowners. The city had authority to petition for this improvement.
What has been said concerning the city of Topeka applies with equal force to the Catholic cemetery, be that an association of individuals or a corporation.
Another contention of the plaintiffs is that the limita- . tions of the district as set forth in the petition to the board of county commissioners are irregular, illogical, and unjust. So far as this matter is in the control of any .one outside of the petition, it is with the board of county commissioners. When they find that the improvements prayed for will be a public utility and order the improvements made, everything has been done that can be done. The determination of the board is final and conclusive except for fraud.
Another argument of the plaintiffs is that the cost of the proposed improvement is excessive and out of proportion to any benefit that can accrue to the adjoining land. This is a matter for the determination of the board of county commissioners.
The plaintiffs claim that chapter 201 of the Laws of 1909, the act under which this improvement is proposed,, was repealed by implication by chapter 200 of the Laws of the same session, and argue that this result is brought about by chapter 200, the last act passed, being contradictory to and in conflict with chapter 201. Chapter 201 provides for the improvement of any regularly laid out road when sixty per cent of the landowners along the line of the road petition for its improvement. Chapter 200 provides for a system of building, improving and repairing roads and highways, other than dirt roads, throughout the county. The people of a county may or may not desire to proceed under chapter 200. The people living along the lines of a regularly laid-out road may desire to improve that road, independent of the desire of the people of the county, and may proceed under chapter 201. The two acts prescribe different systems of building roads. Either one or the other may be adopted. There is room for both to operate. Both may be resorted to in any county for the improvement of different roads at the same time. Chapter 200 does not repeal chapter 201.
It is argued by the plaintiffs that chapter 201 of the Laws of 1909 is unconstitutional and void for five reasons, set out as subdivisions a, b, c, d, and e of paragraph VI of their petition. This act was declared constitutional so far as it confers legislative powers on the petitioners, in Hill v. Johnson County, 82 Kan. 813, 109 Pac. 163. This court is unable to give any reason for declaring the act unconstitutional on any of the grounds named by the plaintiffs. Under these circumstances, following a well-established rule, this court will presume in favor of the constitutionality of the act until the contrary clearly appears.
The plaintiffs contend that the statute is void because it makes no provision for notice to landowners of the proceedings for the contemplated improvement of the road. In Hill v. Johnson County, supra, the unconstitutionality of the act was urged on the ground that it contained no express provision for notice to the property owners before the special assessments became a tax on the property. It was there held that the act was not unconstitutional because it contained no express provision for such a notice. In 1911 the act was amended by section 3 of chapter 249 of the Laws of 1911 so as to provide that the county clerk shall mail a written or printed notice to the owner or owners of any tract of land liable to assessments for improvements thirty days or more before the disposition of the bonds issued for such improvements. This is evidently for the purpose of giving the property owner opportunity to appeal to the courts to redress his grievances. If the act was declared constitutional before this amendment it can not be said to be now unconstitutional when it provides for notice.
There remains another question for determination. The seventh subdivision of the plaintiffs’ petition alleges “that the defendant commissioners made no investigation of the sufficiency of said petition . . . but without evidence of the legality and sufficiency of the petition and in disregard of their official obligation and duty, arbitrarily approved the petition and ordered the improvement of the road as therein described.’”
In addition to these allegations the petition alleges that the petition to the board of county commissioners did not have the requisite number of signatures of landowners, and that it was signed by certain persons who were not bona fide owners of property in the designated district. These allegations are attacked by demurrer and full force and effect must be given them. Under these circumstances, if the commissioners made no investigation of the sufficiency of the petition, but in disregard of their official obligations and duty arbitrarily ordered the improvement of the road, their acts were the substantial equivalent of fraud. The county commissioners must maké an investigation of the sufficiency of the petition presented to them, and they must act under'their official obligation and duty and must act on their best judgment. Because of these allegations the petition states a cause of action and the demurrer was rightly overruled. But the fact that the defendants filed a demurrer which was overruled and on which they elected to stand should not preclude them from contesting these allegations by answer and proof.
The judgment overruling the demurrer is affirmed, but the cause is remanded with directions to the district court to permit the defendants to file an answer to these allegations if they desire to do so.
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The opinion of the court was delivered by
Porter, J.:
In this action the plaintiff seeks by mandamus to compel the defendant to carry out a contract for the erection of a bridge. In a former opinion (Bridge & Iron Co. v. Labette County, 97 Kan. 142, 154 Pac. 230), it was held that inasmuch as the remedy in an action at law is not fairly adequate, mandamus is a proper remedy. Because of the fact that defendant desired to aid the court in its solution of the question of law involved, by presenting testimony relating to reinforced concrete bridge construction, leave was granted to both parties to submit evidence. This has been done by the filing of affidavits,' and the case is now here for final disposition.
On April 8, 1915, the board of county commissioners of Labette county adopted a resolution declaring it was necessary to build a certain bridge-at a cost not to exceed $4500. On the same day a plan and specifications of the proposed bridge were filed with the county clerk, who thereupon duly advertised for bids to be submitted on- May 8, 1915. The plaintiff was the lowest bidder and entered into a written contract with the county to construct the bridge; It seems that the board was willing to have the plaintiff proceed with the erection of- the bridge, but has been notified by the attorney-general that the contract was illegal and void, because the plan and specifications upon which the bids were invited do not satisfy the requirements of the statute regulating the letting of such contracts, and for that reason the board adopted a resolution attempting to cancel the contract. The plans and specifications on file with the county clerk contained the following clause:
“The contractor shall submit detailed plans for and shall receive a written approval of such detailed plans from the Board before he shall commence any work or buy any material for the work covered by these specifications. Such detailed plans, when properly approved, shall become a part of the contract, and shall be binding on both parties.”
The plaintiff’s bid was approved May 8,1915, and the written contract, the validity of which is here involved, was entered into on that day. Three days later the plaintiff submitted a detailed working plan showing with particularity the manner in which it proposed to build the bridge, which was approved by the board and its consulting engineer as being in strict conformity with the general plan and specifications determined upon by the defendant and filed with the county clerk.
The whole controversy between the parties involves the question whether the statute requiring a plan and specifications to be filed with the county clerk-for the inspection of bidders is satisfied by the filing of the plan and the specifications adopted in this case, or, on the contrary, can only be complied with by the filing of detailed drawings and exact specifications. It is the contention of the defendant that if each bidder shall bid-upon a detailed working drawing of his own there can ordinarily be no competition in the bids as to the bridge actually built by the successful bidder according to his own plans. The plaintiff contends that the plan and the specifications which the defendant filed for the inspection of bidders complied with the statute; that it is necessary that something be left to the discretion of the board, who must determine in each instance what competition the nature of the case will admit and what is the best method to secure such competition; and that, in the absence of any evidence of fraud or unfairness, the course pursued by the defendant in letting the contract in question must be held as within such discretion and valid.
In the affidavit for the writ it is alleged, and considerable evidence has been offered to sustain the statement, that ever since 1879, when the provisions requiring plans and specifications to be determined and filed with the county clerk prior to the letting of a contract were enacted, it has been the uniform practice of boards of county commissioners, whenever they deemed it necessary to build a county bridge, to determine upon a plan or general design as distinguished from a detail or working drawing, and to adopt such specifications as in the judgment of the board would result in the construction of the kind of bridge desired, and to file with the county clerk for inspection this general plan and specifications. The practice during all this time has been for bidders to submit detail drawings showing the means to be employed to conform with the general plan and specifications, and these detail plans were then examined to see if they conformed with the general plan and specifications. Recently, however, the attorney-general of the state has advised the defendant and other counties that this method is illegal and that the statutory requirements can be satisfied only by filing with the county clerk a detailed working drawing of the proposed bridge for the inspection of those who might bid for the contract, and that such plan must be in detail to such an extent that the contractor can proceed with the work without additional or supplemental plans and that the plans and specifications must contain such particulars that the successful bidder could and must construct the bridge in strict conformity therewith and not otherwise.
Because of the uncertainty respecting these statutes and the powers they confer upon the several counties, and the great public interest in the question involved, this case has been advanced for early hearing.
Section 2081 of the General Statutes of 1909, reads in part as follows :
“All contracts for the erection of any courthouse, jail, or other county building, or the construction of any bridge the cost of which exceeds one thousand dollars, shall be awarded, on a public letting, to the lowest responsible bidder.”
Article 2 of chapter 14 of the General Statutes of 1909 (§■§ 660-673), relating to the building of bridges in counties . having a population exceeding twenty thousand, the class to which the defendant belongs, provides “when the board of county commissioners deem it necessary to build a bridge, it shall determine upon a plan, the material to be used, and estimate the cost thereof.” (§ 661.) Section 664 provides that “the plans and specifications for the bridge shall be left in the office of the county clerk for inspection,” and also fixes the time for giving notice of the letting of the contract. These provisions have been in force since 1879. At the 1913 session the legislature passed an act relating to the construction of reinforced concrete bridges which reads:
“That it shall be the duty of the board of county commissioners of each county, and the mayor and common council of each incorporated city, and the township board of each township in the state, in constructing bridges and culverts on the public roads and highways over which said officials have control, to cause the said bridges and culverts to be constructed of concrete, reinforced concrete, stone, corrugated iron, which shall be ninety-nine per cent pure, or steel, or both in preference to steel, in each and every case where such bridge or culvert can be constructed at a cost not to exceed 130 per cent of the cost of building said bridge or culvert of steel. Said officials shall not consider bids on any bridge or culvert made of concrete, reinforced concrete, or stone, which is not designed to safely carry a uniform live load of at least two hundred pounds per square foot of floor surface, nor on a bridge or culvert of seventyIflve-foot span or less made of any other material except wood, which is not designed to safely carry a uniform live load of not less than "one hundred pounds per square foot of floor surface; nor shall said' officials consider bids upon a plan which is not designed with a smaller factor of safety than four; provided that every concrete, reinforced concrete, stone or steel bridge, with a concrete floor, shall be guaranteed by thm contractor for a period of four years after the completion of said bridge against defects of design, workmanship or materials, said guarantee to be covered by an approved surety bond issued by a company authorized to do business in the state of Kansas.” (Laws 1913, ch. 70. § 1.)
The plan and specifications filed with the county clerk for the inspection of bidders in this case comprise fifty-seven details, the second one of which reads;
"The accompanying plans, together with the accepted bids and these specifications, form the basis of the contract and are each to be considered a part thereof. The contract contemplates a structure complete in all its details. For such parts that are riot shown with sufficient detail, the contractor shall submit detail drawings for such parts to the Board for approval before its incorporation in the work. After approval, such detail drawings shall become a part of the contract. Dimensions given must control in preference to scale measurements. When intermediate dimensions are desired the scales of similar adjacent parts shall control.”
The specifications include first, what are known as “standard specifications,” and define with particularity the materials of. which the bridge shall be constructed, the character of the stone and cement, the character of the steel used in the reinforcing members, the tension and stress of the same, the manner in which they shall be embedded and fixed in the concrete; and provide that all materials shall be subject to inspection and approval by the board who shall control as to interpretation. The plan accompanying the specifications consists of a blueprint which shows an elevation of one-half of the bridge, gives the center line, the different arcs of the arched rings with radii centers and degrees, together with details of appearance, including the ornamental features of the bridge and the coping and railing. It shows a cross-section of the roadway, giving a width of fourteen feet in the clear, and the depth and pitch of the earth fill. The blue print also gives the following-details :
(a) The crossing and 'location of the bridge; (6) contour of the ground; (c) character of the soil, showing depth of rock or shale below the surface; (d) the depth in the rock or shale to which piers and abutments must be sunk; (e) the low water-line and the height of the archways above that line; (/) the locations of the abutments and piers; (g) the length in the clear of each span; (h) the curve of each arch ring; (i) the elevation of the roadway, and its pitch or camber with a datum line by which to construct the roadway; (j) the angle at which the wings are to be built showing the ‘skew’ at each end and proper elevations for each; (7c) the position and elevation of an old stone ford to be removed by the contractor; and (7) a note is added stating that thickness of the arch rings, piers and abutments is to depend on details of reinforcing.”'
The principal omissions which the defendant considers material are, first, failing to give the thickness of the arch rings; second, failing to give the thickness of the pier; third, failing to give the dimensions of the abutments; fourth, failing to give the thickness of the wings. The plaintiff claims these objections are answered by the fact that the plan does give the length of the lower arcs and the width of the lower surfaces of these rings; and that as to the dimensions of the abutments, their height and width are given; and that as to the thickness of the wings, the specifications state their height, location, length, angles and “Skews.” The plaintiff further calls attention to the fact that a note on the blue-print states: “Thickness of arch rings, piers and abutments to depend on details of reinforcing,” and contends that the meaning of this note is that the bulk or thickness of the arch rings, piers and abutments must be appropriate to the method used by the contractor in reinforcement. It is also contended by the plaintiff that all bidders were invited to compete as to methods of reinforcing and notified that any method of reinforcing that would correspond to the plans and specifications and produce the required structure would be considered by the county, and as all bidders were chargeable with notice of the requirements of the act of 1913, supra, as to the strength and factors of safety, each of them understood that whatever method of reinforcing he proposed, the arch rings, piers and abutments and the completed bridge must be adequate to meet the statutory requirements. It is urged that if the county had specified the thickness of the arch rings, piers and abutments, it would amount to the same thing as though the commissioners had adopted a single one of the several accepted methods of reinforcing and had excluded all the rest, and that while the county might have secured an equally good bridge, competition would necessarily have been restricted. Attention is called to a list of thirty patents issued to inventors of this type of bridge, the majority of which have been granted within the past ten or fifteen years, and it is stated in the brief that there have been many additional patents issued between April, 1911, and March 10,1914, covering reinforced concrete arches.
One of the managing officers of the plaintiff testifies that the use of detail plans has resulted in limiting competition in bids for reinforced concrete bridges, not only because of numerous patents covering various methods, but because a bridge of this character is a composite structure composed of steel and concrete combined, and any variation in detail of the amount or position of one of these materials changes the stresses and likewise the amount of the other material; that the majority of bridges built in this state since 1898 have been constructed of steel, that practically no concrete bridges were built before 1906, and that at this time there are not more than one-third of the bridges, exclusive of culverts, which are made of concrete; that the procedure for letting contracts for county bridges developed during thé steel-bridge era, in which the practice has been to file a plan, specifications, and estimate of the cost, and that the plan so prepared and usually adopted determined the following points about the bridge: (1) Length of bridge; (2) width of the roadway; (3) height of bridge; (4) waterway; (5) depth of foundations; (6) general appearance; (7) angle the bridge makes with the stream; (8) general dimensions and locations of wing walls.
It is said the specifications usually determine: (1) The material of which the bridge shall be built; (2) the load the bridge shall safely carry; (3) the quantity of the different materials to be used; (4) standard specifications, which include rules and requirements common to specifications for the successful and satisfactory completion of the bridge and the protection of the county. He further testifies that after the contract is let, the practice has been for the contractor to file with the board his detailed working plans, which the board approved, with such modifications as it desired to have made; and that he has never known of a detailed working plan for a bridge to be placed on file for the inspection of bidders, either for highway or railroad work. His testimony is that with the plan and specifications determined upon by the board in this case—
“Any one skilled in reinforced arch construction will he able to fully determine just how the details can he arranged 'to build the bridge, and any one skilled in' the art and employed by the board can determine whether the details the contractor submits to him will result in the bridge the board have previously determined upon. There is nothing to hinder any one skilled in the art from bidding on the general plans and the ■specifications submitted in this case. No two reinforced concrete arch designers will make the details the same, yet both will produce the bridge the board determined upon in this case.”
The plaintiff directs our attention to the fact that the art of building reinforced concrete bridges has developed a variety of methods, a great majority of which are protected by patents; that the quantity of steel used in such construction is relatively small, and that it is the constant object of inventors to reduce the quantity of concrete by scientifically reinforcing a smaller quantity thereof with steel or iron, and thus materially reduce the cost without sacrificing strength, durability, or appearance; that one contractor uses larger quantities of concrete and steel, while another, by using a different method of arranging the reinforcing members in the concrete, produces a bridge from a smaller amount of materials which is equally strong and durable and fully up to the statutory and proper engineering standards. It is said that one bidder may accomplish the result by making his arch rings thicker than another bidder would make them by using a different detail of reinforcement; and it is urged that there can be no valid objection against the board exercising their sound discretion, when, in .asking for bids on a bridge of this character, they note on the plans filed for inspection that quantities of materials are to depend upon details of reinforcing, and thus invite competition from bidders using different methods of reinforcing, irrespective of patents protecting the various methods; and it is urged that if any person is entitled to construct such bridge, by using more than one patented method of reinforcement, he is at liberty to offer bids in the alternative covering various methods.
The affidavit of the state engineer is to the effect that where detailed working plans are not on file before the contract is made it is impossible for the engineer to make an estimate of the cost of construction, and, further, that the expense to each bidder of preparing a set of detail working plans for a bridge similar to the one in this case is about $150. He further testifies, in substance, that it is impossible to estimate or even to make an approximate guess as to the amount of concrete and steel that would be required for the construction of this bridge from the general plans and specifications, and that it would be impossible for a contractor to construct a bridge with no more information than is furnished in the general plans and specifications, and that an engineer could not estimate the cost of the bridge; that detailed working drawings would have to be prepared showing the thickness of the concrete in each section of the arch ring, etc., and the sizes, spacing, exact location, and length of all reinforcing members before an estimate could be made. Also, that the detailed plans show a structure which is not designed according to the general plan or the advertisement; that the plans on file for the inspection of bidders indicate a vastly greater volume of concrete than is shown by the detailed plans. The necessary effect of this, if true, is to let every one but the favored bidder make his estimate upon the larger amount of concrete and consequently to bid higher than he would if he were bidding on the detailed plans.
The purpose of the statute requiring that contracts of this kind be let to the lowest bidder is to secure economy and to protect the public from collusive contracts which would result in favoritism and fraud. The intent of the requirement that a plan and specifications shall be on file for the inspection of bidders is that all bidders shall be placed on an equality, and that each shall know exactly what is required. We think it is clear that, although when these statutes were first adopted the construction of reinforced concrete bridges was an art unknown in this country, nevertheless the statute meant then just what it means now: that the plans and specifications on file for the inspection of bidders must, so far as the nature and character of the proposed work will admit, be sufficiently definite and explicit as to enable bidders to prepare their bids intelligently on a common basis. It may be said as a general rule that plans and specifications are sufficient if contractors and others skilled in such matters are able to determine what is required. (Yaryan v. Toledo, 28 Ohio C. C. 259, affirmed without opinion in 76 Ohio St. 584, 81 N. E. 1199.)
A discussion of the question of the sufficiency of specifications for guidance of bidders for public contracts will be found in a Note in 30 L. R. A., n. s., 214.
The authorities cited in the briefs of the parties furnish very little aid in determining whether or not the plans and specifications in the present case complied with the provisions of the statute. The case most relied upon by the plaintiff is Attorney General v. Detroit, 26 Mich. 264, in which the opinion was written by the late Judge Cooley. Some of the language in the opinion in a general way seems to sustain the plaintiff’s contention. For instance, it was said in the opinion:
“If they invite proposals for a particular thing or process, they necessarily in so doing exclude everything else which might have been substituted for the thing called for; and there is no clearer field for corruption and favoritism than in shaping proposals, if in fact the city is in corrupt hands.” (p. 270.)
Again in the opinion it was said:
“If a patented article were desired, which was owned by a single person who refused to sell the right to territory, or to fix a royalty, or if stone or any other material were required, and a single person owned all within a practicable distance of the place where it was to be used, nothing could be more obvious than that proposals which confined bids to the particular article or material, would invite no valuable competition, and that the protection of the public must lie in the power of the council to reject unreasonable offers. In such a case nothing is easier than for the council to obey strictly the letter of the law, and yet dishonestly and corruptly award a contract to one who is lowest bidder for no other reason than because no one can bid against him, and who, having a practical monopoly, is allowed to fix his own terms.” (p. 270.)
The foregoing language was applied, however, to a case wholly dissimilar to the present one. There the common council determined to pave a certain street, and “instead of determining in advance what particular kind of pavement should be put down, and confining their invitation for proposals to that kind” (p. 267), prepared and filed specifications for each of several different kinds of wood and stone pavement, and invited bids for the work to be done with either wood or stone pavements according to the specifications on file. Numerous competitive bids were received for putting down the various kinds of pavement, some covered by patents and others open. After the bids were in the council determined what pavement it would adopt, and let the contract to the lowest responsible bidder for that kind of pavement. We have no doubt that in this case the county might have adopted the course of inviting bids for a steel bridge, a stone bridge, and one of concrete, and if it had filed for the inspection of bidders plans and specifications for each of the three kinds, it might' have determined after the bids were in which kind of bridge it would adopt and have let the contract to the lowest responsible bidder on that particular kind of a bridge. The following language of Judge Cooley in the Michigan case would apply to such a condition:
“When bids are thus called for, all bidders for a particular kind of pavement are bidders against all others, in a certain sense, but they are also bidders against each other in a more particular sense. It would be the duty of the council, when all bids were in, to examine all, and to select the kind of pavement for which the bids, all things considered, were relatively the lowest. They might thus, perhaps, reject the kind they would have preferred in advance, but for which they find all bids exorbitant, and determine upon another, because, in their opinion, the offers made for it are more satisfactory.” (p. 272.)
In many of the cases cited by the defendant no plans and specifications whatever were filed, and of course it was held that the statute was violated. Thus, in The People v. Commissioners of Buffalo County, 4 Neb. 150, although the bridge was to cost $50,000, there were no plans and specifications prepared or filed in advance, and the only competitive bidding was on the plans and specifications of the bidders.
In Mazet v. Pittsburgh, 137 Pa. St. 548, 20 Atl. 693, certain general specifications were adopted which were applicable to all of certain streets to be paved. There were no specifications as to asphalt pavement, and bidders for that kind of pavement were directed to prepare their own specifications, which was accordingly done. The contract, however, was awarded to the defendant for what is called a “vulcanite” asphalt pavement, which the court in the- opinion said was “a kind of pavement neither called for in the ordinance, nor even hinted at in the advertisement inviting bids.” (p. 563.) The court held that the purpose of the statute and ordinances was to secure to the city the benefit and advantages of just competition between bidders and at the same time to prevent favoritism and fraud in every form, and that where there were no plans and specifications upon which to bid there could be no competitive bidding. This case is relied upon by the plaintiff, but it can hardly be said to apply to the facts here.
A case very frequently referred to, and which is cited and quoted from at length-by the defendant, is Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. 353. There, the county commissioners following a statute authorizing them to ■do so had adopted a general plan and detailed specifications. They then advertised for “sealed proposals, competitive plans and specifications.” (p. 646.) The constitution of Arkansas contains a provision that all such contracts shall be given to the lowest responsible bidder. The court held that the general specifications were not sufficient and that it was essential that there be definite and detailed specifications, otherwise there could be no intelligent competitive bidding. The case differs from this, because here competitive plans and specifications were not expected to be filed with the sealed proposals, and it was not contemplated that any one except the successful bidder should prepare a detailed working plan after the contract was entered into.
None of the cases cited goes so far as to hold that statutes similar to ours can only be complied with by filing detailed working plans for the inspection of bidders. Nor have we been able by careful research to find any authorities that go to that extent or which are based upon facts at all similar to those in the present case. The authorities are practically unanimous in holding that there can be no active, intelligent competition among bidders unless plans and specifications are open to inspection which are sufficiently explicit as to afford to all bidders an equal opportunity to bid upon the same project or proposition.
The conclusions reached by a majority of the court are that the plans and specifications which the commissioners prepared in advance of the bidding are not a sufficient compliance with the statute, and that after the contract was awarded to the plaintiff it could not lawfully be changed by the substitution of additional specifications which made substantial changes .in the requirements submitted to the other bidders. If the relative amount of concrete and steel to be used in the construction was not definitely known and understood by all bidders, but was to depend upon the design of the successful bidder and upon additional plans subsequently approved by the county board, all bidders could not be said to stand upon an equal basis, and, moreover, it would be impossible for the board to have had before it when bids were offered a correct estimate of the cost of the bridge. Wherever the plans and specifications on file for the inspection of bidders are, as in this case, so general as to admit of any substantial variation of detail, then active, intelligent competition among bidders is prevented, and favoritism and corruption are made possible, and ■the purpose of the statute has not been complied with.
A further question remains for consideration. We are asked to determine whether section 673 of the General Statutes of 1909, which expressly provides that where the estimated cost of a bridge exceeds two thousand dollars, no appropriation shall be made until the question has been submitted at a general election, is still in force. This provision, which was a part of the Laws of 1879 (ch. 77, § 14), has been impliedly repealed by a recent act (Laws 1911, ch. 68), in which the legislature covered the entire subjecv in respect to the amounts and manner in which appropriations may be made for the building of county bridges, and classified counties according to population. The later act is general in its application, and every county in the state is placed in one or another of the various classes. In each class a county may, without an election, make an appropriation for building a bridge if the estimated cost shall not exceed a certain maximum, and when the cost does exceed that sum an election must be called. It was evidently the purpose to substitute the general law in place of all other laws on that, subject. (Topeka v. McCabe, 79 Kan. 329, 331, 99 Pac. 602, and cases cited.)
It follows from what has been said that the contract for the construction of the bridge is void because of the failure to comply with the provisions of the statute, and therefore the writ is denied.
Porter, J., and West, J., dissenting. | [
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The opinion of the court was delivered by
Porter, J.:
This is an action by a landlord to recover rent. The petition set forth a written lease of the south half of a store room on Kansas avenue in- the city of Topeka, for a term of sixteen and a half months from July 15, 1913, at a rental of $125 a month payable in advance. The defendant went into possession and paid the rent until June, 1914, when he abandoned the premises and refused to pay the rent for the rest of the term. The plaintiff gave him notice that he would be held for the agreed rent until the termination of the lease, but that in the meantime plaintiff was willing to cooperate with him in finding another tenant for the room and would report any application that might be made. The answer set up a constructive eviction and alleged that the premises were leased for the purpose of conducting a shoe and hat shop; that the plaintiff occupied the north half of the room as a retail cigar and tobacco shop, the premises being divided by a partition; that the front door of the plaintiff’s place of business and that of the defendant opened from a common vestibule; that in the east end of the premises a large plate glass show window was of great value as an advertising feature to the defendant’s business; that during all the time the defendant occupied the premises the plaintiff willfully permitted a group of young men who frequented plaintiff’s place to- stand and loiter in front of defendant’s show window, obstructing the view from Kansas avenue and destroying the usefulness of the window as an advertising medium; and that these loafers maintained their position in front of the defendant’s place with the consent and encouragement of the plaintiff. Another defense alleged was that plaintiff permitted gambling in his cigar store, where numbers of young men congregated early in the morning and remained until late at night, and that they in dulged in loud, profane and indecent talk which could be heard in the defendant’s store by himself and his customers. The answer alleged these grounds for the abandonment of the lease.
The jury returned a general verdict in favor of defendant, and at the request of the plaintiff answered a number of special questions. The plaintiff moved for judgment on the special findings, and the sole question for determination is whether the court erred in refusing to sustain the motion.
The special findings are in substance that persons did not congregate in front of Matthews’ show window or in the front entrance at the instance, direction, or with the consent of the plaintiff or any of his employees; that there was no gambling conducted at Eagle’s plaeé “that interfered with defendant’s occupancy of his store” and thát Eagle had instructed his employees not to permit gambling on the premises; that neither Eagle nor any of his employees used loud, profane or indecent language on the premises; that they did not consent to nor encourage others to use such language, and that the conduct of persons congregating at Eagle’s premises was no different from the conduct of a like body of persons under similar circumstances. The findings are, too, that Matthews-was familiar with the fact that Eagle was conducting a cigar store at this place before entering intp the lease and was familiar with the place and its surroundings at the time the lease was made, and that the conditions were no different during his lease than before.
None of the grounds upon which the defendant, claims the right to abandon the premises resulted from any wrongdoing of the plaintiff. The space in front of the show window on the side occupied by the defendant was not under the control of the plaintiff, and he could not be held responsible for the presence of persons congregating .there. If the defendant was dissatisfied with having persons standing in front of his window, he should have complained to the police. It is said that “trespasses, or other acts of third persons impairing the usefulness or enjoyment of the demised premises, do not amount to an eviction by the lessor, unless the acts from which the eviction is asserted to result were committed under the direction of or at the instance or with the consent of the lessor.” (24 Cyc. 1132.) The rule is that in order to constitute a constructive eviction the acts complained of must be those of the landlord or those for which he is responsible. Moreover, the defendant remained in possession of the premises under the lease for eleven months after the commencement of the term. The findings are that the conditions remained the same before and after the execution of the lease; so that he must be held to have waived any right to claim that he had been evicted from the premises by reason of the conditions. Where a tenant claims that circumstances have arisen which give him the right to abandon a lease, he must act within a reasonable time after he discovers the conditions. (Seaboard Realty Co. v. Fuller, 67 N. Y. Supp. 146, 8 N. Y. Ann. Cas. 418; 24 Cyc. 1134.) The findings are in direct contradiction of the general verdict and must control.
The judgment is reversed and the cause remanded with directions to sustain the plaintiff’s motion for judgment. | [
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The opinion of the court was delivered by
Mason, J.:
A petition alleged the execution by the defendant of .a promissory note payable to the plaintiff, • and asked judgment for the amount. A demurrer to this pleading was sustained, obviously on the ground that it failed to allege nonpayment. Leave to amend was given and the plaintiff filed an amended petition reciting that he adopted and made a part thereof all the allegations of the original petition, “the same as though set out in this amended petition in full,” and adding that the note was wholly unpaid. Facts were also stated showing the suspension of the statute of limitations, which otherwise would have run between the filing of the original petition and its amendment. A demurrer to the amended petition was overruled and the defendant appealed. The plaintiff moves to dis- piiss the appeal on the ground that it presents no question that is involved in substantial doubt.
An oral argument on the motion developed these facts: The defendant concedes that if the allegations of the original petition are regarded as incorporated into the amended pleading a cause of action is stated, but he maintains that the attempt so to incorporate them by reference is ineffective, and that the new petition is demurrable because it does not in itself allege the execution or contents of the note. The defendant has filed a brief in support of his position. The sole claim of error is based upon the contention, stated. The question involved is simply one of practice, upon which the parties have now been heard orally and in writing. No good purpose would be served by any further or more formal submission on the merits and the case will be finally disposed of at this time.
The practice of adopting by reference allegations set out in another count of the same pleading is general (39 Cent. Dig., Pleading, § 118), and is permitted even in criminal cases (22 Cyc. 366). No material error can be committed in permitting a party by this method to incorporate into his pleading, without actually repeating it at length, matter contained in any of the papers on file in the case, for his version of the facts is thereby exhibited with clearness and precision to which repetition could add nothing. An amended petition must itself disclose all the facts upon which the plaintiff relies, but it may do this by the means here employed. The scope of the rule is shown by the words italicized in the statement of it:
“It is a well-settled rule that the original complaint is superseded and its effect as a pleading is destroyed by the filing of an amended complaint which is complete in itself and does not refer to or adopt the original as a part of it." (3 Ene. L. & P. 793.)
Where the amended pleading does refer to and adopt the original as a part of it, both must be considered upon a demurrer if any effect is given to such reference and adoption. The practice in the matter is thus indicated:
“Although looked upon with disfavor by the courts, the practice prevails quite generally of making amendments by reference to and adoption of specified portions of previous pleadings, and by adding thereto new averments so as to constitute another and separate pleading. . . . A pleading may be incorporated in an amendment by reference even though it has been stricken from the files.” (31 Cyc. 389.)
If in a particular instance the device of adopting by reference the allegations of another document should be carried so far as to result in practical inconvenience, the trial court might properly require a full transcript to be made upon a single paper. And if for any reason a trial court should make such a-requirement it would of course be the duty of a party to comply with it. But if the court before which a case is.pending permits allegations elsewhere set out in full to be adopted in a pleading by reference, no possible prejudice to the legal rights of any one can result, and the ruling can not be a just ground of reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an action in replevin to recover possession of a tubular boiler which had been sold by plaintiff to the Klassen Milling Company under a contract reserving title in plaintiff until full payment of the purchase price. At the time the action was brought the boiler was in the possession of defendant who has acquired title to the real estate under mortgages in existence at the time the boiler was installed. The defendant contends that the property in question by reason of being attached.and firmly fixed to the real estate has become a part thereof and can not be recovered by replevin. The case was tried without a jury and the court found generally in plaintiff’s favor and rendered judgment accordingly, from which the defendant appeals.
Long prior to the sale and installation of the boiler, the defendant, J. R. Burkholder, who resided in Canada, held mortgages on the real estate amounting to $7000, and in 1912 he brought suit to foreclose them and obtained judgment. At the sheriff’s sale under his judgment he purchased the real estate. He had no actual notice of the contract under which the machinery was placed in the mill, but the contract was filed for record December 4, 1911, some months after the boiler was installed.
In May, 1911, the boiler was delivered and installed in a frame building which stood about ten feet from the mill building. Another boiler in good condition but too small for the mill was removed to make room for this one. The front part of the boiler weighed 4400 pounds, and the tubular portion weighed nine tons. It was eighteen feet long and six feet wide. A solid brick wall laid in cement was built about it, and four pipes connected it with the mill. The smokestack stood on a brick pier outside the boiler house, and it would not have been necessary to destroy the smokestack in order to remove the boiler. Witnesses for the plaintiff testified that the removal of the boiler would not injure the property to which it was attached; and they varied from $35 to $150 in their estimates of the cost of removing it. The plaintiff was not a party to the foreclosure proceedings, but knew at the time the sale of the boiler was made that it was to be attached to the real estate and used to furnish power to the mill.
In modern times there has been a great relaxation of the ancient rule that all things annexed to the realty become part of it. Formerly the criterion for determining whether machinery in a building had become part of the realty was whether it was physically attached or in the ordinary understanding became a part of the realty. The weight of authority now is that the intention of the parties is the safest criterion. As said in the opinion in Shoemaker v. Simpson, 16 Kan. 43:
“Even dwelling houses, or indeed anything placed by men upon the soil, if they can be again removed, either in bulk or in pieces, may under some circumstances be only chattels, although they may be ever so firmly attached to the soil. The intention of the parties is one of the strongest elements in determining questions of this kind.” (p. 50.)
The exact question involved in this case was decided in Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345. That was a controversy between the holder of a chattel mortgage covering a steam engine which had been installed in a mill upon which Eaves held a prior real-estate mortgage. It was held that by reason of the terms of the chattel mortgage, the engine, regardless of the nature of its attachment to the mill, never became a part of the realty, and that the vendors were entitled to recover its possession and remove it from the mill.
In the opinion it was said:
“As a general rule, improvements on real property inure to the mortgagee as part of his security; but whether any given piece of property becomes so attached to the freehold as to make it a part thereof is frequently a question of great difficulty. . . . The engine when built, and at the shop of builders, was unquestionably personal property. Under the light of adjudicated cases, and having no regard to the terms of the chattel mortgage, it may well be doubted whether it ever became a part of the realty as between vendor and vendee. . . . But when we consider the purpose of the parties, as evinced by the mortgage, to make the engine retain the character of a chattel, regardless of the manner of its attachment to the mill, and as the mortgage violated no principle of law, wrought no injury to the rights of any, and was in the interest of trade, we have no doubt that the engine continued to be personal property. . . . It is not intended to decide that parties can by any arrangement make property either real or personal as they may choose.” (pp. 316, 317.)
The opinion then quotes (p. 317) from the leading case, Ford v. Cobb, 20 N. Y. 344;
“It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and can not in general be changed by the convention of the parties. Thus, it would not be competent for parties to create a personal chattel interest, in a part of the separate bricks, beams, or materials of which the walls of a house were composed.” (p. 348.)
In section 133a of the fifth edition of Jones on Chattel Mortgages, it is said;
“One already holding a mortgage of the realty has no equitable claim to chattels subsequently annexed to it.' He has parted with nothing on the faith of such chattels. Therefore, the title of a conditional vendor of such chattels, or of a mortgagee of them before or at the time they were attached to the realty, is just as good against the mortgagee of the realty as it is against the mortgagor.”
The point is made by defendant that Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345, is not controlling because the opinion in that case states that the prior mortgagee had actual and constructive notice of the contract under which the chattel was annexed to the realty. The decision, however, was not made to turn in any respect upon the question of notice, and besides the great weight of authority supports the doctrine that notice to the mortgagee of the real estate of the annexation of chattels covered by a chattel mortgage or a conditional sale agreement is not essential to preserving the rights of the vendor of the chattels. (Cox v. Lighting Company, 151 N. Car. 62, 65 S. E. 648, 134 Am. St. Rep. 966, 18 Ann. Cas. 936.) The opinion in that case states :
“In no one of the many cases examined by us has notice to the prior mortgagee of the realty of the annexation of chattéls covered by a chattel mortgage or conditional sale been considered as determinative of his superior right or as important in fixing' the rights of the respective mortgagees.” (p. 67.)
The opinion (p. 68) cites and approves Eaves v. Estes, supra. In the North Carolina case the prior real estate mortgage contained an express provision that it should cover future additions and improvements made upon the property. Other cases sustaining the rights of the conditional vendor as against a purchaser on foreclosure of a prior mortgage are Tifft et al. v. Horton et al., 53 N. Y. 377, 13 Am. Rep. 537, and Campbell v. Roddy, 44 N. J. Eq. 244, 6 Am. St. Rep. 889.
The foregoing cases also hold that the execution of a chattel mortgage by the owner of the realty upon machinery which he afterwards places in a building thereon is an unequivocal declaration of an intention that the machinery shall be regarded as personalty. In Page v. Edwards, 64 Vt. 124, 23 Atl. 917, it was held that machinery sold in this way will retain its character of personalty against the holder of an existing mortgage on the land, notwithstanding it is used to replace other machinery which was there when the real-estate mortgage was executed, and which was removed to make room for the machinery in question. To the same effect, see Hill v. Sewald, S3 Pa. St. 271, 91 Am. Dec. 209.
An elaborate discussion of the question will be found in a Note, 37 L. R. A., n. s., 119, which includes only those cases falling strictly within its scope, that is, the rights of the selling-party retaining title thereto or a lien thereon as against existing mortgagees of the realty to which it is affixed by the owner. The author of the note states that the weight of authority is to the effect that where the removal of the fixture will not materially injure the premises, a vendor of the fixture retaining title may assert his rights thereto as against a prior mortgagee of the realty.
What is termed the equitable rule adopted by many of the courts is stated in the following language:
“Whether the chattel mortgage shall be postponed, notwithstanding the agreement between the owner of the land and the mortgagee, must de pend upon the inquiry whether or not the preservation of the rights of the holder of the chattel mortgage will impair or dimmish the security of the real estate mortgagee as it was when he took it. If it will not, then it would be inequitable that the latter should defeat or destroy the security of the former. If it will, then it was the folly or misfortune of the holder of the chattel mortgage that he permitted the property to be annexed to a freehold from which it can not be removed without diminishing or impairing an existing mortgage thereon.” (Binkley v. Forkner et al., 117 Ind. 176, 184, 19 N. E. 753, 3 L. R. A. 33, 36.)
The evidence of the plaintiff in the present case tended to show that the boiler in question can be removed without substantial injury to the real estate. There are no special findings, but the general finding in plaintiff’s favor must be held to include a finding that plaintiff’s fights may be preserved without defeating or impairing the security of the defendant. So, if we should follow the equitable rule just referred to, the judgment must be affirmed. The essential facts, however, are not different from those in the well-considered case of Eaves v. Estes, 10 Kan. 314, 15 Am Rep. 345. We are satisfied with the reasoning upon which Chief Justice Kingman • supported the conclusion reached by the court in that case, which has continued as the law in this state since 1872.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Noah Cameron' died intestate on January 18, 1911, holding the record title to several city lots in Lawrence. Five days later a deed was recorded, which had been signed and acknowledged by him on November 12, 1910, purporting to convey the property to his two sons, Allen N. Cameron and Huber L. Cameron. On June 21, 1913, Rose L. Malaney brought an action against Allen N. Cameron and the administrator of Huber L. Cameron, claiming an interest in the property, and its rents and profits, as an heir of Noah Cameron, by virtue of being his adopted daughter, and asserting that the deed was inoperative for want of delivery. Judgment was rendered against her, and she appeals.
The trial court found that there.had been no legal adoption, and that the deed had been delivered. There is no substantial dispute in the evidence.' The plaintiff contends that the established facts show that she was entitled to the rights of an adopted child, and that the grantor died without having delivered the deed. There can be no reversal unless both these contentions are sustained.
When the plaintiff was about four years old her father, whose wife had left him, entered into a written agreement with Noah Cameron and his wife, in these words:
“Know all men by these presents that I, Loomis J. Beach, party of the first part, and Noah Cameron and Angeline J. Cameron of the second part, that the party of the first part- do by these presents relinquish forever to the parties of the second all his rights and claim as father to his daughter Rose L. Beach (age four years, three months and twenty-two days) for to have and claim as their own.”
Thereafter the plaintiff lived with the Camerons, was known by their name, and was treated in every respect as their child. No court proceedings of any kind were had, nor did the probate judge give his approval; at least, no showing to that effect was made. One section of the statute relating to adoption, which has been in effect since 1868, reads as follows:
“Any parent may, with the approval of the probate judge of the county where such parent may reside, first obtained in open court, relinquish all right to his or her minor child or children to any other person or persons desirous of adopting the same, and shall not thereafter exercise any control whatever over such child or children so relinquished; and the person or persons so receiving into his, her or their charge such child or children shall exercise all the rights over the same that they would be entitled to were such child or children the legitimate offspring of said person or persons so receiving them.” (Gen. Stat. 1909, § 5064.)
The succeeding section provides a procedure for a formal order of adoption by the probate court, at the instance of the adopting parent. This was amended in 1908, but not in any feature here material. The next section gives the rights of an heir to “minor children adopted as aforesaid.” Whether a legal adoption can result from proceedings had only under the section quoted, or whether an order made under the section immediately following it is necessary to produce that effect, need not be determined. The consent of the probate judge was in any event necessary to an% adoption under the statute, and as this was lacking the statutory procedure was not complied with. A right of inheritance, based upon an artificial relation, is derived wholly from the statute, and can only be created by a substantial compliance with the method there laid down. (Renz v. Drury, 57 Kan. 84, 45 Pac. 71.) In this all courts agree. (1 C. J. 1373; 2 EnC. L. & P. 218; 1 R. C. L. 595, 596.)
But while the plaintiff pleaded an actual adoption the argument made in her behalf amounts to a contention that the written agreement already quoted constituted a valid contract to adopt the child, supported by a sufficient consideration, and that in view of the subsequent conduct of the parties a right to inherit must be deemed to have resulted. By the great weight of authority, supported as we think by sound reason, such a contract is enforceable and may be made the basis of a valid claim against the estate of the obligor. (1 C. J. 1376; 2 EnC. L. & P. 245; 1 R. C. L. 617, 618.) In Horton v. Troll, 183 Mo. App. 677, 167 S. W. 1081, a judgment was affirmed which declared an oral agreement to adopt a child, when acted upon by the parties, to be an executed deed of adoption, as required by the statute; but that action might have been regarded, as this may, as in effect one for the specific performance of the contract.
If in the writing relied upon by the plaintiff Noah Cameron had in so many words agreed that he would make her his heir, or that he would adopt her, the case would probably be brought within the rule stated. Possibly such an agreement may be implied from the recital that her father relinquished to the Camerons his rights to his daughter “for to have and claim as their own.” This need not be decided, because of the view taken of the other question presented.
The deed in question, after the certificate of acknowledgment had been attached by the notary public, was left in the possession of the grantor. No direct evidence was given as to how it reached the hands of the register of deeds, but as it was delivered to Huber L. Cameron after having been recorded the fair inference is that it had been received from him. He was shown to have been living with his father dur ing his last illness. The mere unexplained fact that the deed was in the possession of one of the grantees creates a presumption that there had been a delivery (9 A. & E. Encycl. of L. 159; 4 Enc. of Ev., 158; 8 R. C. L. 999), “which can be overthrown only by clear and convincing evidence” (Rohr v. Alexander, 57 Kan. 381, 384, 46 Pac. 699; 4 Enc. of Ev., 160). The circumstance that the possession is not affirmatively shown to have originated prior to the death of the grantor does not defeat the presumption, although of. course it may weaken it. (Blair et al., by Guardian, v. Howell et al., 68 Iowa, 619, 28 N. W. 199; McCarthy v. Colton, 134 Iowa, 658, 108 N. W. 217; Simmons v. Simmons, 78 Ala. 365.)
To overcome the prima facie showing of delivery these considerations are urged: In a letter written to his son Allen on November 12, 1910, the grantor mentioned that the income of the property was about fifty dollars a month, and in one written a month later he said: “The real estate is left to you and Huber jointly, and I think after I am gone you had better not dispose of it but keep it as it will be a continual revenue. . . . I will have the rents which will be more than I may need.” A witness testified that three weeks before his death he made inquiries concerning local charitable institutions to which he wished to leave some property, and stated that he had fixed his other property as he wanted it to go. The argument is made that a purpose on the part of the grantor to retain title in himself until his death, by keeping control of the deed, is shown, particularly by the expression with reference to the rents, which indicated that he regarded himself as still the owner. To this it is answered that a reliance upon the income of the property during his life is not necessarily inconsistent with a present passing of the title. (Ross v. Perkins, 93 Kan. 579, 583, 144 Pac. 1004.) An expectation that his. use of the rents would not be interfered with, even in the absence of any agreement or understanding on the subject, would not be strongly persuasive of an intention to have the deed take effect at his death and therefore accomplish what the law requires to be done by will. In the letter written to his son Allen in November he said, “I have made a deed of all my property in Lawrence to you and Huber jointly.” In the December letter he said that he had placed $1700 of the proceeds of his personal property in the bank to Allen’s credit, indicating a full relinquishment of title to this amount of ready money. He also mentioned having set aside $100 for the plaintiff. Another witness to whom he spoke concerning the leaving of something to charity testified that he said that “he had already disposed of his other property” — an expression, however, which might apply as well to disposal by will as by deed. A decision that the deed was not delivered would impute to Huber L. Cameron the act of wrongfully taking it from among his father’s papers. Upon a consideration of the entire record we conclude that the evidence tends to support rather than to overthrow the presumption of'delivery. This conclusion requires an affirmance of the judgment of the trial court, a result which appears to be in accordance with the established rules of law, and which clearly conforms to natural justice; for while on the one hand it would seem harsh to hold that Noah Cameron’s mainfest purpose to adopt the plaintiff should be defeated by a failure to comply with the prescribed formalities, on the other an equally technical ruling would follow if the nondelivery of the deed had been proven, for then his plain intention to exercise his undeniable right of vesting title to his real estate at his death in his sons would be frustrated merely because he chose a method of showing his desire which was perfectly intelligible, but not effective for want of the formality the law requires in the making of a will.
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was to recover possession of certain notes, mortgages and other evidences of debt, or their value. The plaintiif prevailed and the defendant appeals.
The First National Bank of Sedan is- merely a nominal defendant, holding the securities in controversy for collection as the agent of the defendant, the Traders National Bank of' Kansas City, Mo. At the time the action was brought the Citizens State Bank of Chautauqua, hereinafter referred to as the Chautauqua bank, was insolvent and in the hands of the state banking department. From August, 1911, this bank and the Traders National Bank, which will be referred to as the Kansas City bank, were correspondents, the Chautauqua bank keeping an account with the Kansas City bank, against which it frequently issued exchange. It had borrowed $10,000 from the Kansas City bank, evidenced by two notes which were due February 1, 1915. On January 26, 1915, it owed on one of these notes $5000, and on the other $3000. The money had been borrowed long before, and the notes had been renewed from time to time. The original and the renewals were in the same form, and contained the following provision:
“And being desirous of securing this note and all other liabilities to said bank, now existing or which may hereafter arise, we hereby pledge and deliver for that purpose, to said bank and its endorsees and assigns as collateral security for the payment of said note and said other liabilities, present and future, sundry notes, being all those hereto attached and all additions to them and all substitutions for them in the course of business, and we agree to give additional security to keep up the present margin should the market value of the above securities decline, upon notification to us by the holder of said note or liabilities or any of them, within twenty-four hours after receipt of said notice.” .
From October, 1914, until the time of the transaction in controversy, the Kansas City bank had complained that the Chautauqua bank had not remitted promptly the proceeds of collections sent by the Kansas City bank, and there was considerable correspondence over the matter. The Chautauqua bank had recently sent about $10,000 additional security, but the Kansas City bank had become suspicious as to the character of some of the collateral. Because of this, on January 23, 1915, it sent Mr. Alexander, its assistant cashier, to Chautauqua for the purpose of obtaining additional collateral. He took with him the collateral which the bank held (the face value of which amounted to about $25,000), and called the attention of Turner, cashier of the Chautauqua bank, to the appearance of some of it. Turner’s explanations were not satisfactory, and Alexander informed him that he intended to stay until he got other collateral. Turner failed to keep an appointment with Alexander at the bank Saturday afternoon, and left town. On Monday Alexander, in company with a banker from Bartlesville, Okla., who came to Chautauqua in the interest of the Kansas City bank, went to the Chautauqua bank and found Mrs. Turner in charge. She informed them that she had heard nothing from her husband, but that she supposed he would be back. They asked her to turn over to them other collateral security, and explained that the Kansas City bank had a right to it, and that when the $8000 was paid the surplus collateral would be returned. Mrs. Turner then turned over to them for examination all the notes and securities which the bank had in its vault. Later in the day J. R. Dominick, president of the Kansas City bank, came to' Chautauqua. J. M. Vandeventer was president of the Chautauqua bank, but was not active in its management. He lived on a farm and came to the bank once or twice a week. On the afternoon of Monday, January 26, Alexander sent for him, and when he arrived the parties went to the bank and examined the securities which had been selected. About that time a letter arrived from Turner, addressed to Mr. Vandeventer, containing a statement that some of the notes held by the Kansas City bank and other banks as collateral were forged by him, but that the money obtained thereby had all been used for the benefit of the bank, and not for himself. While the officers of the Kansas City bank were there they learned from Mrs. Turner that the bank had only about $30 in currency on hand. It was apparent that Turner had absconded, and that the bank was insolvent. Under these circumstances, the president of the Chautauqua bank, at the request of the officers of the Kansas City bank, turned over and indorsed to the latter notes and other evidences of debt, the face value of which was $38,000, and which constituted substantially all the assets and securities of the bank. At the same time the Kansas City bank turned back the former securities held by it. In explanation of the action of the Kansas City bank in insisting upon such a large amount of collateral security, it is said that by reason of the confession of cashier Turner the Kansas City bank was unable to ascertain at that time how much of the collateral could be depended upon as genuine. The Kansas City bank immediately placed the collateral in the hands of the First National Bank of Sedan, with instructions that when the $8000 had been collected the remaining securities were to be turned back to the Chautauqua bank. After Mr. Dominick left Sedan he stopped at Topeka and informed the bank commissioner of the transaction.
The jury by its verdict found for the plaintiff, and found that the value of the collateral still in the hands of defendant was $6694.91. The judgment rendered upon the verdict was for the return of the securities and moneys collected, or, in lieu of such return, a money judgment for their value.
Plaintiff bases its right to recover largely upon the provision of the banking law, which reads:
“No bank, banker, or bank officer shall give preference to any depositor or creditor by pledging the assets of the bank as collateral security, . . . provided, "that any bank may borrow money for temporary purposes not to exceed in amount fifty per cent of its paid-up capital, and may pledge assets of the bank not exceeding twenty per cent, in excess of the amount borrowed, as collateral security therefor.” (Laws 1911, ch. 65, § 1.)
The first question to determine is whether the transaction of January 26, 1915, is a preference prohibited by this statute. The defendant claims that in this respect the giving of the securities did not constitute a preference for the reason that they were turned over in pursuance of a promise made long prior thereto, and that the transaction was merely the consummation of an arrangement made at the time the notes were executed. It is said that by virtue of the terms of the previous agreement the Kansas City bank had possessed in equity and good conscience a lien which developed into actual possession when the securities were turned over, and that whether it was a preference depends not solely upon the transaction of January 26, but the original promise.
Conceding that the agreement in the note is a valid one, it must be held, we think, that it is limited by the statute, which expressly prohibits the giving of collateral so as to create a preference. The provision in the note reads:
“. . . and we agree to give additional security to keep up the present margin should the market value of the above securities decline, upon notification to us by the holder of said note or liabilities or any of them, within twenty-four hours after receipt of said notice.”
This is no more than an agreement to give additional security in the future in case it is demanded. If the demand or request had been made at a time when the. bank was entirely solvent, the agreement could have been lawfully complied with, provided the amount of collateral deposited was not more than twenty per cent in excess of the debt. So long as the bank continued solvent it was a valid agreement, and no longer. One of the principal cases relied upon by defendant is Sexton v. Kessler, 225 U. S. 90, 98. There the bankrupts, more than four months before the petition in bankruptcy was filed, placed in their own vaults a separate package containing securities, marked: “Escrow for account of Kessler & Co., Ltd., Manchester.” At the same time they wrote Kessler & Company, “This escrow is intended as a protection against our long drafts against your good selves.” Later, at the request of the creditor, .they sent a certificate describing the particulars as to the nature and character of the securities, and thereafter notified ■the creditor from time to time of substitutions made. Within four months of the time the.debtor became bankrupt it turned over the securities to an agent of the creditor. It was held that the possession of the securities was taken pursuant to a preexisting right, supported by equitable principles. The distinction between the situation there and a case like the present one is stated in the opinion in the following language:
“So a general promise to give security in the future is not enough. But the present was a.more limited and cautious dealing. It was confined to specific identified stocks and bonds on hand, and purported to give an absolute present right, qualified only by possible substitution, and perhaps by a 'right of partial withdrawal if the remaining securities had risen sufficiently in value. It purported not to promise, but to transfer.” (p. 98.) (Italics ours.)
It is quite apparent, we think, that Sexton v. Kessler, supra, Can not be relied upon by the defendant, because it recognizes that a mere promise to give additional security without something equivalent to a setting aside of particular collateral is not enough. That, the subsequent delivery of additional securities under a mere general promise made prior thereto will not relate back so as to render the transaction free from the prohibition of a somewhat similar statute, was decided in Torrance v. Bank, 66 Kan. 177, 71 Pac. 235. In that case section 67a of the bankruptcy law of 1898 (30 U. S. Stat. at Large, ch. 541, § 67, subdiv. a, p. 564) was under consideration. The statute reads:
' “Claims which for want of record or for other reasons would not have been valid claims as against the claims of the creditors of the bankrupt shall not be liens against his estate.”
The syllabus in Torrance v. Bank, supra, reads:
“An agreement made, while negotiating for a loan, to make repayment out of a certain fund, or the proceeds of a particular enterprise, does not create a lien on the fund or the proceeds of the enterprise, and where repayment is made out of the designated fund within four months of proceedings in bankruptcy, such payment shall be deemed to be preferential and voidable at the suit of a trustee.” (Syl. ¶ 1.)
The opinion (p. 182) quotes with approval In re Sheridan, 98 Fed. 406, in which the syllabus reads:
“An agreement to pledge personal property as security for a debt is not executed where the goods are not delivered to the creditor, nor set apart and treated as his property; and, where the creditor takes possession of the property a few days before the filing of a petition in bankruptcy against the debtor, the transaction is voidable as a preference, notwithstanding that the original agreement was made more than four months before that time.”
The agreement in the notes was a mere promise to give additional security whenever called for. There was no setting apart of any particular collateral, nor did the agreement identify any particular collateral. We think it is quite obvious that it did not create an equitable lien upon the securities in controversy, and that the promise was necessarily limited by' the statute.
The word “preference” has often been defined by courts:
“The common definition of ‘preference’ as found in law dictionaries, is the paying or securing to one or more of his creditors, by an insolvent debtor, the whole or a part of their claims, to the exclusion of the rest.” (6 Words & Phrases, p. 5498.)
For reasons of public policy the legislature saw fit to safeguard the interests of depositors and other creditors of banks by enacting regulations controlling the operation of banks and limiting their power to prefer one creditor over another at a time when the bank is insolvent. Section 1 of chapter 65 of the Laws of 1911 prohibits a bank from giving preference to any depositor or creditor by pledging the assets of the bank, with a provision that the bank may borrow money for temporary purposes not to exceed in amount fifty per cent of its paid-up capital, and may pledge as collateral security therefor the assets of the bank not exceeding twenty per cent of the amount borrowed.
It is unnecessary .to determine the question discussed in both briefs as to the authority of the president of the bank to indorse and turn over the securities in controversy. If it had been the cashier who acted, and the board of directors had authorized and directed the securities to be indorsed and delivered to the Kansas City bank, the latter would have ac quired no right to retain them, for the reason that the Chautauqua bank was insolvent and the transaction was prohibited by the statute. Nor is it necessary to consider previous decisions, upon which defendant relies, in which it has been held that a debtor has a right to prefer one creditor over another so long as he maintains the jus disponendi of his property. The statute lays down a different rule for a bank and declares that “no bank shall give preference to any depositor or creditor by pledging the assets of the bank as collateral security.”
Defendant makes the further contention that, even if the transaction of January 26 constituted a preference, it was not void for the reason that the statute nowhere declares that an act done in violation of the prohibition shall be void, and it is argued that the only effect of the statute is to authorize the banking department of the state to commence proceedings against the bank for the appointment of a receiver and for winding up its affairs. It is insisted that this proposition is settled by the highest authorities. The cases relied upon are those where a national bank had made loans on real estate. The national banking act, except by implication, does not prohibit national banks from making loans of this character. These cases hold that congress never intended that the stockholders and creditors of a national bank should be punished by permitting the borrower to escape liability on the mortgage and retain the proceeds of his loan. These cases and the present case are wholly dissimilar. To permit one who has obtained money from a national bank on real-estate security to retain the money and the security-too, would be abhorrent to all ideas of justice and equity. The law was not enacted for his benefit, but for the protection of the bank, its stockholders, creditors and depositors. In prohibiting banks from giving a preference the legislature certainly never intended that the party accepting it should be permitted to retain the benefits of the unlawful transaction, even though it might call for the entire assets of the bank, and result in depriving other creditors of any security. From the time a bank becomes insolvent all creditors stand on an equal footing as to assets on hand. Those creditors who were diligent when the bank was solvent are permitted to retain the benefits of securities surrendered then. The moment a bank becomes insolvent its assets be come a trust fund for the pro raía-, payment of the claims of all its creditors. The defendant concedes that the facts known to its officers at the time of the transaction were sufficient to put it upon inquiry as to the solvency of the bank. We think the facts show conclusively that defendant knew the bank had not only failed to keep its legal reserve, but that its cash was gone; and the officers of the defendant carried away with them substantially all the securities and assets of the bank, except those it returned.
Having defined “insolvency,” and stated the conditions which will render a bank insolvent, the instructions charged that, for the purpose of securing an actual loan, the bank had the right to assign its securities to the Kansas City bank, and that under the provisions in the note the latter had the right to require the plaintiff to exchange or supplement such collateral at any time it became dissatisfied with the security, and that plaintiff by its officers had the right to furnish other and additional security “so long as the plaintiff was solvent, or so long as the Kansas City bank did not know or have reason to believe that it was insolvent,” but if the jury found from the evidence that the securities in controversy were turned over to the Kansas City bank for an indebtedness already in existence at a time when the plaintiff was insolvent, and the Kansas City bank knew or had reason to "believe it was insolvent, then under those circumstances and conditions the Kansas City bank could not hold them, and thus become to that extent a preferred creditor. Complaint is made of these instructions because the words “have reason to believe it was insolvent” do not appear in the statute, and it is insisted that the instructions presented an issue in no way involved in the case. The Kansas City bank concedes that it had reason to believe the plaintiff was insolvent, but insists that the fact is wholly immaterial. On this. particular phase the instructions were too favorable to defendant. If the bank was insolvent on January 26, 1915, that fact was sufficient to render the transaction obnoxious to the statute. The court gave the defendant the benefit of the qualification as to its knowledge or notice, and it has no reason to complain. The instructions clearly defined and applied the law governing the rights of the parties, and, with the slight exception noted, we approve the construction given by the learned judge of the trial court to the statute prohibiting banks from preferring one creditor over another.
One other contention remains. It is urged that plaintiff can not maintain this action without first tendering back the securities formerly held by the Kansas City bank, and which were turned over to the plaintiff as part of the same transaction. There are two reasons why the contention can not be sustained.
First, there is not the slightest evidence to show that the other collateral was surrendered in consideration of the giving of the new. The position taken by the Kansas City bank at the trial, and before this court, has been consistent. It is, that it was entitled under the agreement in the notes to demand and receive additional collateral, and that its right to do so did not depend upon any contract or arrangement entered into on January 26, 1915. Defendant’s right to the possession of the securities in controversy is the only thing directly involved in this action, and all that plaintiff was required to show is that it was entitled to possession. An offer to return a portion of the other securities, equal to twenty per cent above the lawful amount the plaintiff bank was permitted to borrow, would have been entirely proper and equitable. But it can not be held that such an offer was a condition precedent to the plaintiff’s right to maintain this action.
Second, this is an action in replevin; the sole question is the right to the possession of certain securities. Replevin is strictly a law action. (Cobbey on Replevin, 2d ed., § 257.) There are cases which hold that where a vendor has received notes for the purchase price, and desires to rescind the sale for fraud and sue in replevin for the property, he must first return the notes or other consideration (Doane et al. v. Lockwood et al., 115 Ill. 490, 4 N. E. 500; Parrish v. Thurston, 87 Ind. 437), but this is because he is not entitled to possession until he has rescinded, and the right to rescission does not ripen until tender of the consideration. In Rucker v. Donovan & Feiferlich, 13 Kan. 251, 19 Am. Rep. 84, a constable who had paid the freight charges took possession of goods from a carrier. It was held that until he was reimbursed for the freight charges replevin would not lie against him by one having the right to possession. There are a few well-considered cases which show a tendency of the courts to give the action of replevin such flexibility as to adjust in that action all equities arising between the parties and growing out of the same transactions. (Workman v. Warder, 28 Mo. App. 1;. Babb v. Talcott, 47 Mo. 343; McIntire v. Eastman, 76 Iowa, 455, 41 N. W. 161; Cobbey on Replevin, 2d ed., § 794.) Thus, in Boutell v. Warne, 62 Mo. 350, it was held that in replevin based on a claim of purchase, where the jury find the right of possession to be in defendant, and it appears that plaintiff paid part of the consideration, it was error to render judgment for the defendant for the full value of the property. The opinion.; (p. 353) cites Dilworth v. McKelvy, 30 Mo. 149, where it was said:
“The judgment in each case must be modified by the circumstances,•• so that the merits of the controversy may be settled in one action. The statute is a general one, designed to meet all the exigencies which the old action of replevin did, and the equity of its provisions will embrace these modifications of the forms in which judgments should be entered.” (p. 155.)
In Hickman v. Dill, 32 Mo. App. 509, the Kansas City court of appeals said:
“Suits in replevin are said to be, in some respects, sui generis; and the inclination of the courts of this state has been to give to them a flexibility sufficient to meet exigencies and adjust all equities arising in such actions.” (Syl.)
However much we might feel inclined to favor the extension of the remedy in replevin actions to include an adjustment of all equities between the' parties that arise out of the controversy, and thus prevent a multiplicity of actions, it is apparent that this is not a case where the court would be justified in doing so. Although the answer mentions the fact that the' Kansas City bank “surrendered the collateral first given,”, nowhere in the answer does the defendant ask, that the court require the plaintiff to restore any portion of the collateral surrendered. Nor was that equitable claim presented to the trial court. It is conceded by the attorney-general, who appears for the state banking department in charge of plaintiff bank, that the loan represented by the note was valid to the extent of $5000, which was one-half the bank’s capital stock, and that the Kansas City bank had a right to retain collateral of the face value of $6000. We can not, however, in this action determine what, if any, equitable rights the Kansas City bank may have to a portion of the securities which it turned back to the plaintiff on January 26, 1915. That is a matter which can be adjusted by agreement or tried out in another action.
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The opinion of the court was delivered by
William R. Smith, J.:
This proceeding in error is prosecuted to reverse an order of the district court confirming a sheriff’s sale of real estate sold under a decree of foreclosure.
A judgment was entered against plaintiffs in error foreclosing two mortgages, one held by Leah J. Seeley, amounting, with interest, at the date of the decree, to $6289; another, subject to the first, held by Charles E. Moore for $260. The mortgages were liens on three tracts of land, une of which was occupied as a homestead by the mortgagors (plaintiffs in error). It was directed in the decree that the land other than the homestead be first sold, and if it should fail to bring the amount of the mortgage liens then the homestead property should be sold.
On November 23, 1903, the sheriff sold the land to Charles E. Moore, the second mortgagee. The homestead brought $6005, and the other two tracts were bid in by him for $500 each. The sheriff’s return recites that the properties were sold “for cash in hand.” Leah J. Seeley filed a motion to confirm the sale, and John Fraser and wife, the mortgagors, moved to set it aside. The sale was confirmed by the court and a sheriff’s deed ordered to be executed and delivered to the purchaser after the expiration of eighteen months,.the redemption period.
It is claimed that the lands other than the homestead were sold for a grossly inadequate price, thereby casting on the homestead an unjust proportion of the judgment, making the sale contrary to equity and the spirit of our homestead laws. There is no complaint that the price at which the homestead sold was too low. Testimony was introduced tending to show that the lands not exempt were worth $5000. There was no tender, however, of a bid exceeding the amount which the sheriff received for them. The argument is that as the total amount due at the time of sale, including costs, was about $6770, there remained, after deducting the price at which the outside lands were sold, about $5770 on the homestead, making it practically impossible for the debtors to save it, whereas, if the lands other than the homestead had sold for two-thirds their value, as shown by the testimony introduced on the motion by plaintiffs in error, there would have remained a lien on the homestead for about $3440 only.
It is contended that the redemption law of 1893 changed the rule theretofore existing respecting the confirmation of judicial sales, and that the court is required to do more than merely examine the proceedings of the officer to satisfy itself that the sale was made in conformity with law, and that now it must find, before confirmation,, that the proceedings were regular and “in conformity with law and equity.” Section 26 of chapter 109, Laws of 1893 (Gen. Stat. 1901, §4952), reads:
“The sheriff shall at once make a return of all sales made under this act to the court; and the court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same, and direct that the clerk make an entry upon the journal that the court finds that the sale has in all respects been made in conformity to law, and order that the sheriff make to the purchaser the certificate of sale or deed provided for in section 1 of this act.”
It may be conceded that a material change was made in the law by the section just quoted. The inequities of which plaintiffs in error complain, however, are apparent more than real. By section 4928 of the General Statutes of 1901 the owner of real estate sold under special execution, as this was sold, may redeem the property at any time within eighteen months for the amount for which it was sold, together with interest, costs, and taxes. If the two tracts of land not exempt to the owner as a homestead are worth $5000, as defendants below claim, they are benefitted by the right given them to redeem, which they can do by paying $1000, together with interest, costs, and taxes. Estimating the costs, interest and taxes at $500 the owner by redemption of his non-exempt lands would profit to the extent of $3500. By the application of this amount, with $2270 added, the homestead can be redeemed; so that the low price at which the outside real estate was sold works no substantial injustice to the mortgagors. Furthermore, the statute protects land once redeemed from liability for any balance due on the judgment or decree under which the same is sold. (Gen. Stat. 1901, §4949.)
In the case of Power v. Larabee, 3 N. Dak. 502, 505, 57 N. W. 789, 44 Am. St. Rep. 577, real estate worth $6800 was sold on execution for $96. A motion of the debtor to vacate the sale was sustained. This ruling was reversed by the supreme court, although it was held that the inadequacy of price was so gross as to shock the conscience. Speaking of the effect of such a sale, under a law of that state giving the execution debtor one year to redeem, the court said:
“Where his title is divested at the sale, his only remedy to protect himself from loss is by attacking the sale itself. But, where a right to redeem after the sale is vested in him by statute, it is not necessary for him to attack the sale to save a sacrifice of his property. Indeed, he will always find it more to his advantage to redeem. By redemption he can wipe out the sale, and destroy the lien of the judgment upon the land, for a trifling sum in comparison with the value of the property on which the judgment was a lien. If the amount bid is less than the amount of the judgment, the defendant, by redemption, secures the same benefit which would accrue to him should the plaintiff voluntarily release the land from the lien of the judgment on payment of only a portion thereof, the land on which it was a lien being worth many times the amount so paid. Where the defendant has full knowledge of the sale, and an opportunity to redeem, the injustice resulting from a sale for an inadequate price will fall, if at all, upon the plaintiff, who may find that the defendant has by redemption secured the release of very valuable property from the lien of a judgment on the payment of a paltry sum upon redemption, leaving the greater p'ortion of the judgment unsecured.”
In the case quoted from eleven distinct tracts of land were sold in a lump without an attempt to offer them separately, in flagrant violation of the statute. This disobedience of the law was held not to avoid the sale, in view of the right of redemption afforded the execution debtor.
In the case of Watt et al. v. McGalliard et al., 67 Ill. 513, 517, land worth $3500 was struck off to the complainant in the suit for $384.70. On a bill filed to compel a resale, and for a decree permitting redemption, the court said:
“At judicial sales, where there is a redemption, it is a well-known fact that lands, unless where necessary to secure the debt, are rarely sold at anything approximating their real value. Such purchases are not looked upon as a desirable mode of investment. There is seldom competition. The creditor, for the most part, has -to take the land in satisfaction of his debt and wait for it to be redeemed.”
(See, also, Coolbaugh v. Roemer, 32 Minn. 445, 21 N. W. 472; Mixer et al. v. Sibley et al., 53 Ill. 61.)
The next point raised against confirmation of the sale is that the notice published by the sheriff was insufficient for the reason that there was nothing in it indicating that the lands would be sold in separate parcels, as directed by the decree. It is a sufficient answer to this objection to say that section 4905 of the General Statutes of 1901, which provides for notices of sale in such cases, does not require that the advertisement state that the lands will be sold separately.
There is nothing substantial in the claim that the notice was not published continuously for thirty days prior to the day of sale. The testimony was disputed on the question. The affidavit of the printer attached to the return shows that the notice whs published in conformity with law. 'It was expressly found that the lands were duly and legally advertised for sale. We must uphold the ruling of the district court on that point.
It is next claimed that the purchaser did not pay for the lands, but that he gave in lieu of money a promise that he (Moore) would release his judgment, amounting to $260. The sheriff’s return showed that he sold the property “for cash in hand.” On this return Leah J. Seeley, the judgment creditor, moved to confirm the sale, which was done at her instance. We do not think it concerns the judgment debtor whether she actually received the money or not. She is not complaining.
Leah J. Seeley was represented by her attorney at the sheriff’s sale when the land was bid off by Charles E. Moore. She in this way was informed of the nature of the bid and amount thereof. Afterward, on December 19, 1903, she filed her motion to confirm the sale, affirming that it was regular in all respects and in conformity with law, and praying that a certificate of purchase issue to Charles E. Moore. On January 2, 1904, John Fraser and wife, mortgagors and judgment debtors, filed their motion to set aside the sale on seven grounds, the third being “that the purchase-price for which said lands were sold has not been paid by said purchaser.” On January 15, 1904, both motions were heard together by consent. Plaintiffs in error called the sheriff as a witness. He testified that Moore, the purchaser, paid nothing on his bid but the costs. With this knowledge plaintiff below still insisted on the confirmation and induced the court to act favorably on her motion. She is now effectually estopped from assérting that her judgment against the Frasers is not satisfied. (See M’Ghee v. Ellis and Browning, 4 Litt. [Ky.] 245, 14 Am. Dec. 124; Harper v. Fox, 7 Watts & Serg. [Pa.] 142.)
There is no merit in the claim that the return of the sheriff did not show that the property was sold to the highest bidder. It did recite that the lands were sold at public auction. This implies that they went to the highest bidder. (Bouv. “Auction.”)
The action of the court below in confirming the sale is approved and affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff sued for injuries occasioned by the breaking of a platform forming part of a wooden structure used as a means of access to a steam-pump placed down near the water in a deep well, constituting a part of the defendant’s pumping station at Kensington. In the well were several flights of ladders or steps, and several platforms. The plaintiff pleaded that the first flight of steps rested upon the first platform, and that as he stepped from the ladder upon the platform, while descending into the well, the platform broke into pieces and caused him to fall and be injured. His evidence supported the allegations of his petition in every particular as to the portion of the structure that broke.
The platform in question rested upon beams or stringers, and was about three feet by four feet in dimension. The defendant’s evidence showed that the foot of the ladder referred to rested upon the east side of the platform; that the top of the second ladder, leading down to the second platform, rested against the west side of the first platform; that out to the west of this platform, and to the west of the top of the second ladder, some boards were nailed to the stringers, slanting across them, as braces to hold the stringers in position, leaving an open space some three or four feet wide between the brace-boards and the platform; that these boards were not designed to be used as a means of passage into and out of the well, and were not used for such purposes; and that after the plaintiff’s fall these boards were found to be broken, while the platform that plaintiff claims gave way beneath him was not only unbroken but that it did not even need repairing until a number of months afterward.
This sharp conflict in the evidence raised a question as to the duty of the defendant with reference to the safety of the slanting boards. Upon this subject the defendant requested the court to give the following instruction:
“You are instructed that if you find from the evidence that the part of the structure which gave way in the well in question was not connected with the ladder leading from the top of the well to the first landing, nor with the ladder leading from the first to the second landing, and was not there for the purpose of assisting persons in going into or coming out of the well, but was placed there simply as a brace and support for the stringers and pipe, and that it was not necessary or customary to use said portion of the structure which gave way for the purpose of going into or coming out of the well, then you are instructed that the railway company was not bound to maintain said portion of the structure in a condition sufficient to hold the weight of a man, and the railway company owed no duty to the plaintiff to maintain the portion of the structure which gave way in such a manner as to sustain his weight, and, even if you find from the evidence that plaintiff was directed to go into the well, your verdict must be for the defendant.”
The request was refused, and the court on its own motion instructed the jury as follows:
“The alleged act of negligence of which plaintiff complains, so far as your inquiry under the evidence may extend, is as follows: In not exercising ordinary care to ascertain the alleged dangerous condition of said platform, wooden cross-beams and other wooden structure used in said well.”
The instruction refused very fairly presented the defendant’s theory of the case. The only valid criticism of it which can be made is that it perhaps decided for the jury that the slanting boards were not of such a character as to present the appearance of a platform an'd justify one looking after the defendant’s pumping apparatus in the well to use it as such. But if this be true the instruction given, after calling attention to a structure which the plaintiff’s pleadings and testimony show he did not use, in effect decided for the jury and against the defendant the same question of fact, and left the jury free to consider the defendant’s responsibility in not exercising ordinary care to ascertain the strength of the slanting boards, even though they were not open to use in going into the well, were mere braces not designed to sustain the weight of a man, and were not of a character to invite a man to use-them as a platform. None other of the instructions given cured this defect, or covered the subject of the instruction refused; hence, the judgment of the district court must be reversed and a-new trial granted. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
James M. Holloway sued to recover damages for injuries sustained while attempting to board a train of the Atchison, Topeka & Santa Fe Railway Company at Strong City. He purchased a ticket and awaited the arrival of a passenger-train upon which he intended to take passage, but about the time the passenger-train was expected a freight-train pulled in on the track next to the station, and while it was passing the passenger-train arrived on a track beyond the one occupied by the freight-train. The passenger-train only stopped a brief time, and when the freight-train had passed the station the passenger-train was moving out. Holloway ran around the end of the freight-train and undertook to board the slowly moving passenger-train, but, his foot slipping into an opening in the back of the step of the car, he lost his balance, and was thrown under the wheels of the car and badly hurt.
The negligence alleged against the railroad company was that it did not provide safe means of access to the train, or sufficient time and opportunity for plaintiff to board it. The running of the freight-train between the waiting-room in which Holloway was seated and the passenger-train, thus concealing that train and blocking the approach to it, the failure to stop the passenger-train a sufficient time to permit passengers to board it, the omission to give notice of its arrival and the leaving of an unprotected opening in the steps of the car are mentioned as specific grounds of negligence. It is alleged that, as a consequence of the railroad company’s negligence, Holloway was thrown down, dragged over a hundred feet, his arm crushed so that amputation became necessary, and his right foot and ankle permanently crippled. The answer of the railroad company was that the injuries were in no way the result of its negligence, but were in fact caused by plaintiff’s want’ of care in getting on a train while it was in motion. The verdict of the jury and the answers to special questions were in favor of Holloway.
The principal contention is that Holloway’s evidence showed that the negligence of the railroad company was not the proximate cause of the injuries, but that they were due to the contributory negligence of himself, and that, therefore, the demurrer to his evidence should have been sustained.
The testimony offered in his behalf tended to show that he was fifty-six years old, in good health, strong and able-bodied; that he was engaged in traveling for a mercantile company and had had much experience in boarding and alighting from trains; that after buying his ticket he seated himself at a window of the waiting-room to watch for the coming train; that while there a freight-train came through on the track next to the depot, and that when his attention was called to the fact that the passenger-train was in he hurried around the back of the freight-train, and when he reached the passenger-train it was moving. He had two grips with him which he threw upon the platform of the baggage and combination car. One of the grips remained there and the other fell to the ground. He picked up the light grip and undertook to board the train, catching the hand-rail on the end of the following coach. He attempted to step on .the train when it was running about four miles ■ an hour, but his foot slipped into the opening in the step, his hand was jarred loose, and he fell under the car .and suffered the injuries which have been mentioned. His plight was seen by the conductor, who pulled the cord and stopped the train, but not until Holloway had been dragged about 100 feet. According to the testimony, the stop made by the passenger-train was very brief— placed by some witnesses at from thirty to sixty seconds, and the conductor himself fixed the length of time at from thirty to forty-five seconds. It appears that several passengers who intended to board that train were unable to do so before the second stop, which was made because of the injury to Holloway. He undertook to get on the train after it had started, but he said it was moving slowly, and that he had frequently boarded cars which were moving much more rapidly. Measuring the testimony by the rule applicable under a demurrer to evidence, we think it was sufficient to carry the case to the jury on the alleged neg ligence of the railroad company, as well as on the contributory negligence of Holloway. (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. 1, 1 Pac. 605; Wolf v. Washer, 32 id. 533, 4 Pac. 1036; Christie v. Barnes, 33 id. 317, 6 Pac. 599; K. C., Ft. S. & G. Rld. Co. v. Cravens, 43 id. 650, 23 Pac. 1044.)
When Holloway entered the station and purchased a ticket with the intention of taking the coming train he acquired the status of a passenger, and was entitled to protection as such. It was the duty of the company to exercise reasonable care to provide him a safe approach to the passenger-train, a reasonable opportunity to get on board, and a reasonable time to do so. The running of a freight-train between the waiting-room of the station and the passenger-train, thus blocking the passage to the passenger-train during the entire time it stopped at the station, was manifest negligence. If, for any reason, the passing of the freight-train on the track next to the station was a necessity, the passenger-train should have been held a sufficient time after the way had been cleared to afford passengers an opportunity to get on board. The freight-train, however, blocked access to the passenger-train during the short time that the latter stopped at the station. It,is the duty of a passenger to be reasonably alert and prompt in boarding a train, but considering that the freight-train concealed the coming passenger-train and blocked the passage from the station to it we cannot say that Holloway was not reasonably prompt and diligent in his efforts to get on board the cars. The stop of the passenger-train was very brief — altogether too much so, considering the surrounding circumstances.
The case of Terry v. Jewett, 78 N. Y. 338, involved the act of running a freight-train in front of a passenger-train, cutting off the passage of those who were seeking to board the latter. The freight-train, which was passing at a rate of six to eight miles an hour, struck and killed a person who was endeavoring to get on the passenger-train. It was held that the act of running the freight-train in front of the other was an act of culpable negligence. In the course of the decision the court remarked, at page 342:
“It may be assumed that a railroad corporation, in the exercise of ordinary care, so regulates the running of its trains that the road is free from interruption or obstruction where passenger-trains stop at a station to receive and deliver passengers. Any other system would be dangerous to human life, and impose great risks upon those who might have occasion to travel on the railroad.”
In the same case it was said that the ringing of the bell, or the sounding of the whistle, is no answer to the charge of negligence, as those signals are not intended as a notice to passengers seeking to get on a train at a station and are not likely to be noticed in the confusion of two trains passing each other under the circumstances. The court added, at page 343:
“It certainly was quite an unusual occurrence and a palpable disregard of the rules which require reasonable care and diligence to avoid accident to run a freight-train so as to interfere with' passengers who were on their way to the cars.”
The halting of the train at the station was in a way an invitation to passengers to board it. They naturally would assume that a reasonable opportunity would be given them to get on board the cars, and since that was not given, and the train moved out before they had time to board it, the company had a right to anticipate that some of the waiting passengers would attempt to get on the moving train, if it appeared that it could be done without danger. There is reason, therefore, to say that the company should have foreseen that an injury would likely result from its negligence in blocking access to the cars and its failure to give a reasonable opportunity to passengers to board the train. Whether its negligence was the proximate cause of the injury was at least a fair question for the determination of the jury.
There remains the question whether Holloway’s act in attempting to board the moving train was negligence which precludes a recovery. It is insisted that we should determine, as a matter of law, that his attempt was contributory negligence. He could see that the boarding of the train while moving was attended with some danger. The boarding or alighting from a moving car is not, under all circumstances, contributory negligence. (A. T. & S. F. Rld. Co. v. McCandliss, Adm’r, 33 Kan. 366, 6 Pac. 587; S. K. Rly. Co. v. Sanford, 45 id. 372, 25 Pac. 891, 11 L. R. A. 432; A. T. & S. F. Rld. Co. v. Hughes, 55 id. 491, 40 Pac. 919.)
Judge Thompson, in treating of this question, said:
“It cannot be affirmed that a person is guilty of contributory negligence, as matter of law, from the mere fact that he attempts to board a railway-train while it is in motion. If the train does not stop at the proper stopping-place for a sufficient length of time to enable the passenger to get on before it starts, and the passenger, thus coerced by the negligence of the company, attempts to board the train while it is slowly moving, and is injured in the attempt, contributory negligence will not be imputed to him, but he will be allowed to recover damages.” (3 Thomp. Neg. §2995.)
The case of Johnson v. West Chester & Philadelphia Railroad Co., 70 Pa. St. 357, was an action to recover damages for the injury of one who was trying to get on a moving train. It started before passengers had sufficient time to get on board, and the plaintiff, encumbered with a valise and a number of packages, missed his footing and his arm was crushed by the wheels of the car. It was insisted that it should have been declared as a matter of law that he was negligent. The court remarked, at page 365:
“The fact appears to be clear, that a reasonable time for the transfer was not given, and that the plaintiff, with all his effort -to make haste, was unable to make the connection in consequence of this want of time. Now, though the train was distinctly in motion, so that a bystander, cool and unconcerned, could see it visibly running on the track, are we to say, as a matter of law binding on the jury, that a passenger, having a right to go on the train, and' seeing himself about to be left improperly by the wayside, is guilty of culpable legal negligence, if he should essay to reach his destination, no matter how slow the motion in running might be, or how little danger was apparent to him? He may be guilty of negligence, but of this the jury should judge under the circumstances.”
In volume 6 of thé Cyclopedia of Law and Procedure, at page 644, we find the following:
“Usually it is said that the question as to whether under the circumstances of the case the passenger was negligent in attempting to get on board a moving train is one of fact, and therefore to be determined by the jury, unless the facts are so unequivocal in their character as to make it proper for the court to determine the question.”
Was the attempt of Holloway one which a reasonably prudent man would have undertaken? As the authorities cited show, it is a question to be determined by the surrounding circumstances, including the velocity of the train and the apparent danger from boarding it. In its charge the court advised the jury that, where a train is moving at such a rate of speed, or where the place of the passenger’s ascent to the car, or the circumstances connected with his attempt to board it, are obviously so perilous and dangerous that a person of ordinary prudence would not attempt to get on the train, the act of the person injured in so doing is such contributory negligence as will bar all recovery. The jury were also instructed that, where the company was negligent in the premises, the act of boarding a moving train is not to be regarded as an act of contributory negligence on the part of the passenger, unless the danger to be apprehended by such attempt is apparent to the mind of-a reasonably prudent and careful man. In other portions of the charge they were advised that if by the exercise of ordinary care and prudence Holloway could have seen that the train was in motion, and that he could not with reasonable safety get upon, the step, he should have desisted from the attempt and waited for the next train. The circumstances surrounding the attempt were called to the attention of the jury, and the question of Holloway’s negligence was left for their decision. Among the circumstances for consideration were the facts that he was a strong, able-bodied man, accustomed to travel and to getting on and off the cars. The day was clear and the surface of the ground where the attempt was made was reasonably smooth. The train had only started and was moving at a speed about equal to a brisk walk. A lady moved along with the train and mailed a letter thereon about the time that Holloway approached it. He was anxious to go on his journey and was disturbed by the interference of the freight-train and the negligence of the railroad company. He had to decide quickly whether to get on the moving cars or abandon his trip. In view of these and other circumstances we think it cannot be said, as a matter of law, that the danger was so obvious that a man of ordinary care and prudence would not have attempted the boarding of the train. Judge Thompson, in considering whether such an attempt is one of fact to be decided by a jury, or a matter of law to be decided by the court, remarked:
“It may be said here that whether or not it will be deemed negligence for a person to attempt to board a train, after it has started to move from the station, will depend upon the speed at which the train is moving, the physical condition of the passenger himself, and other surrounding circumstances. It is well known that trainmen habitually board their trains after they commence to move, and that passengers frequently do so; and it would seem to follow, from the mere consideration of this fact, that negligence cannot be imputed to such an act as matter of law; though clearly it may be performed under such conditions that a jury could not hesitate about the conclusion of contributory negligence.” (3 Thomp. Neg. §2856.)
See, also, Mills v. M. K. & T. Ry. Co., 94 Tex. 242, 59 S. W. 874, 55 L. R. A. 497; Baltimore & Ohio Railroad Co. v. Kane, 69 Md. 11, 13 Atl. 387, 9 Am. St. Rep. 387; Phila., Wilm. & Balto. R. R. Co. v. Anderson, 72 Md. 519, 2 Atl. 2, 8 L. R. A. 673, 20 Am. St. Rep. 483; C. & A. R. R. Co. v. Gore, 202 Ill. 188, 66 N. E. 1063, 95 Am. St. Rep. 224; Filer v. Railroad Co., 49 N. Y. 47, 10 Am. Rep. 327; Distler v. Long Island R. R. Co., 151 N. Y. 424, 45 N. E. 937, 35 L. R. A. 762; Fulks v. The St. Louis & S. F. Ry. Co., 111 Mo. 335, 19 S. W. 818; Birmingham Railway & Electric Co. v. Brannon, Adm’x, 132 Ala. 431, 31 South. 523.
The objections to the testimony of witnesses as to the speed of the train cannot be upheld. The speed of a train is not a question of science, but may be shown by an ordinary witness who has given attention to the running of trains and possesses a knowledge of time and distance. The inexperience of a witness in timing the speed of trains, or the fact that he has given the matter little attention, goes to the weight, rather than the admissibility, of his testimony. Some of the witnesses whose testimony was challenged had given some attention to the speed of trains. All were competent to express their opinions, but, of course, the value of their testimony was affected by their experience, and that was something to be measured by the jury.
The charge of the court is criticized, but we think it fairly covered the facts of the case and stated the pertinent principles of law. The one relating to proximate cause may be somewhat involved, but we cannot say that it is incorrect, nor that it was in any sense misleading.
All of the errors assigned have been examined, but in none of them do we find material error, and therefore the judgment of the court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
S. W. Cooper brought an action against W. B. Penrose for the possession of two town lots, and recovered judgment, from which the defendant prosecutes error. The claim of Penrose was based upon two tax deeds, one of which had been of record for more than five years. Cooper claimed to hold title by a chain of conveyances running back to the patentee from the federal government. The important questions presented are whether the tax deeds were good upon their face, and, if not, whether the plaintiff showed that he had any standing to question their validity.
The tax deeds were similar in form, and were based upon certificates assigned by the county. The most serious objection made to them has to do with the recital relating to the lots’ being bid off by the county. The statutory form of tax deed adapted to such a case contains this language:
“And whereas, at the place aforesaid, said property could not be sold for the amount of tax and charges thereon, and was therefore bid off by the county treasurer for said county for the sum of-dollars and - cents, the whole amount of tax and charges then due.” (Gen. Stat. 1901, §7676.)
The corresponding part of the tax deeds in question reads:
“And, whereas, at the place aforesaid, said each respective piece or parcel of said real property could not be sold for the several sums of money, dollars and cents, placed opposite each respective piece or parcel of said real property as follows [giving descriptions and amounts], being the whole amount of tax and charges on each tract or parcel as aforesaid, the same was bid off by the county treasurer of said county.”
The deeds fell short of a full compliance with the statute in that they failed to say for whom or for how much the property was bid off by the county treasurer. It is true that the treasurer could not legally have bid it off for any one except the county or for any price except the full amount of taxes and charges due against it, and these considerations might seem to aid the deeds and make their recitals substantially equivalent to those of the statute. The same line of argument, however, would dispense with the necessity for any recital at all with regard to this matter. The essential condition necessary to give the county authority to assign a certificate to a- later purchaser is that the property has failed to sell at public auction for want of bidders, and this was fully set forth in these deeds. The purchase by the county is an affair of theory, requiring for its consummation no palpable act of any officer. The only contract involved is a constructive one. The new relation of the county to the property results by operation of law. In the absence of statutory provision, doubtless the transaction is not one that would need to be recited in order to show jurisdiction to issue a tax deed. To say that the property was bid off by or for the county gives no real information as to the steps actually taken; the statement seems purely formal, and of no practical importance. But because the legislature has seen fit to include a reference to it in the prescribed form it may not be ignored in the deed, and the same reasons that render it imperative that it shall be referred to at all make it necessary that the reference shall' be in substantial conformity with the statute.
In the present ease there was a plain departure from the requirement of the statute. Recitals that the treasurer in bidding off the property acted for the county, and that it was bid off at the amount of the taxes and charges due, may appear of little real consequence, but because they are contained in the statutory form their omission made the deeds defective. As the defect was apparent on the face of the instruments it could be taken advantage of, even after the lapse of five years. (Gibson v. Kueffer, 69 Kan. 534, 77 Pac. 282.)
The plaintiff attempted to trace his title back to the United States, but can hardly be said to have succeeded, for it is doubtful whether the grantors in several of the conveyances relied upon were identified with the grantees in the preceding ones, and one form of description employed was probably so uncertain as to make the deeds in which it occurred inoperative. An objection was also urged against other deeds upon the ground that the names of the grantees were inserted after delivery, but this was shown to have been done with due authority. Granting that the plaintiff wholly failed to show a good paper title, he nevertheless proved enough to enable him to question the validity of the defendant’s tax titles, for it was shown that for some years prior to the time the original holder of the tax deeds took possession of the property it had been occupied under a claim of ownership by the plaintiff and those under whom he claimed. Possession under such circumstances is said to be not only evidence of title but to constitute in itself title in a low degree. (Christy v. Richolson, 48 Kan. 177, 29 Pac. 398.) The fact that the plaintiff had lost possession of the property before the commencement of the litigation does not affect his right to rely upon this principle.
“The possession acquired by the plaintiff in order to recover in ejectment, where his documentary evi dence is lacking, does not go to the extent demanded in order to ripen an adverse possession into legal title. He is entitled to recover against the defendant on the strength of his prior actual peaceable possession of the premises under claim of ownership, apart from the validity or sufficiency of the muniments of title introduced by him as against a mere trespasser on the land or one claiming only under a later possession.” (10 A. & E. Encycl. of L. 486.)
“Ejectment may be maintained upon the prior possession of plaintiff, or of parties through whom he claims, such possession being a sufficient prima facie title. Accordingly where no. legal title is shown in either party the party showing prior possession in himself or those through whom he claims will be held to have a better right. Thus it has been held that plaintiff upon such a showing may recover in ejectment against a defendant who shows no better right or title . . . whose title or claim is invalid . . . or who relies solely upon a later possession.” (15 Cyc. 30.)
“What title to the land must the party show in himself before he shall be permitted to attack the tax deed? The object of the act [requiring one attacking a tax title to show title in himself] was to prevent a mere stranger and wrong-doer, who could lose nothing by the tax sale, from interfering with it, or defending against it. The circuit court decided that possession, with a claim of title, was sufficient evidence that the party ‘had title to the land.’ In this we have no doubt that court was correct. That would be sufficient evidence of title as against an intruder or trespasser, even to maintain ejectment.” (Curry v. Hinman, 11 Ill. 420, 430.)
(See, also, 45 Cent. Dig. [§1580], cc. 2145-2148; Black, Tax Tit., 2d ed., §430; 25 A. & E. Encycl. of L., 1st ed., 731; 21 Encyc. Pl. & Pr. 485.)
Other questions have been raised, but are not thought to require discussion. The judgment is affirmed. The plaintiff in error may, however, still ■claim the benefit of the occupying-claimant act.
All the Justices concurring.
No. 14,219.
(84 Pac. 115.)
SYLLABUS BY THE COURT.
1. Tax Deed — Recorded Five Years — Defective Recitals — Validity. Where a tax deed has been of record for more than five years it will not be held to be void because of the omission of express recitals required by the statute, if the substance of such omitted recitals can be supplied by inferences fairly to be drawn from statements elsewhere made in the deed, by giving to the language employed a liberal interpretation to that end.
2. - Omission of Statutory Recitals Supplied by Inference. In the case of such a deed, based upon a certificate assigned by the county, and reciting that the property conveyed was bid off by the county treasurer, the omission of express recitals of the amount for which it was bid off, and that it was bid off for the county, may be supplied from the statements that the property could not be sold at the tax sale for the amount against it and that a tax-sale certificate was afterward issued by the treasurer and assigned by the county clerk upon the payment of an amount equal to the cost of redemption.
3. - Several Tracts — Separate Offers to Sell — Recitals Sufficient. In the case of such a deed, which includes several distinct tracts, the omission of an express recital that such tracts were offered for sale separately for the amount due against each respectively may be supplied from statements that the property was exposed to sale in conformity to the statute and that each tract could not be sold for the amount against it. | [
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The opinion of the court was delivered by
William R. Smith, J.:
It is objected that the petition failed to state a cause of action because it contained no averment that plaintiff paid the claim of the Barnard Machinery Company. Plaintiff in error contends that the mere fact that a judgment was rendered thereon against the contractor, Lockwood, and declared a lien on the elevator property superior to that of plaintiff’s mortgage, was insufficient to show damage to the latter in the amount of such lien. Plaintiff below assumed the distribution of the amount it loaned to the Hutchinson Feed and Grain Company. The claim of the Barnard Machinery Company was provided for, and the money necessary to pay it was sent to the Winfield National Bank and the purpose of its transmission understood fully by the latter. It converted the amount to its own use. The loan association by its agreement to pay the several claims against the property that might ripen into liens became liable to the Barnard Machinery Company for the amount of the latter’s demand against Lockwood. It attempted to pay it through the agency of plaintiff in error. The proceeds of the draft sent to Winfield belonged to the loan association. After converting a portion of it defendant could not defeat this action by asserting that plaintiff might have collected the amount the former withheld by foreclosing the mortgage on the elevator, thus causing the mortgagor to suffer for the wrongful conduct of the Winfield bank. It is no answer for it to say that the loan association might have collected the amount of the claim from some other person. The purpose the loan association had in distributing the money was that its mortgage might be a first lien on the property mortgaged. This purpose was defeated by the defendant bank. The action was not begun prematurely.
The contention that the statute of limitations barred a right of recovery cannot be sustained. Plaintiff below pleaded all the facts. A cause of action founded on an implied contract was stated. (K. P. Rly. Co. v. Kunkel, 17 Kan. 145; Smith v. McCarthy, 39 id. 308, 18 Pac. 204; Guernsey v. Davis, 67 id. 378, 73 Pac. 101; Missouri Savings & Loan Co. v. Rice, 28 C. C. A. 305, 84 Fed. 131; Pom. Code Rem., 4th ed., §§453-559.) The bank received and appropriated the money less than three years before the petition was filed.
Counsel insist that the only misconduct complained of on the part of the bank was its failure to return Lockwood’s affidavit, as evidenced by the letter transmitting the dráft and affidavit. Its default was more than this. The affidavit was to furnish proof that the machinery claim had been paid. The only fund out of which it could be paid was in the hands of plaintiff in error. It was the duty of the bank to put Lockwood in a position where he could testify truthfully in the affidavit that the claim was out of the way of the loan company’s mortgage. This it did not do. The directions in the letter from the First National Bank of Hutchinson were to be acted on by the Winfield bank in connection with the understanding it had with Lockwood that the claim in question was to be discharged.
The court has given attention to the other claims of error presented by counsel but finds nothing justifying a reversal of the judgment. It is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Judith E. Kidder executed and delivered to Augustus Weld her promissory note for a sum of money, and secured its payment by a mortgage upon her real estate. Subsequently she married him in consideration of his parol agreement that the marriage should operate as a satisfaction of the note. Still later he brought a suit against her to recover on the note and to foreclose the mortgage. She pleaded payment, and upon a trial the jury returned a general verdict in her favor, and made answers to special questions as follow:
“(1) Did the plaintiff and the defendant Judith E. Weld (then Judith E. Kidder), before they were married, and after the note in suit had been given, enter into a parol contract or agreement whereby it was mutually agreed between them that in consideration that said Judith would thereafter marry the plaintiff the note in suit should, upon such marriage, be by the said parties mutually regarded as paid or satisfied? A. Yes.
“(2) If you answer the preceding question ‘yes,’ then did the defendant Judith E. Weld, in pursuance of such alleged contract and as a performance thereof on her part, marry the plaintiff? A. Yes.”
Judgment was rendered for the defendant for costs. It is now urged that the evidence supporting the plea of payment was inadmissible because the contract, being oral, is within the statute of frauds, and marriage is not a sufficient part performance to remove the bar, and that the evidence admitted was not sufficient to sustain the verdict.
It is true the statute of frauds provides that no action shall be brought to charge any person upon any agreement made upon consideration of marriage unless the agreement upon which the action is brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him or her lawfully authorized. (Gen. Stat. 1901, §8174.)
It is likewise true that authorities may be found to the effect that generally marriage is not a sufficient part performance to avoid the effect of the statute; but there is no question of part performance in this case. The contract was -fully executed when the defendant married the plaintiff. Nothing further was to be done by either party to satisfy its obligations. The agreement was not that the plainiff would after marriage deliver money or property or securities to the defendant in consideration of the marriage, or that he would after marriage execute and deliver to her legal documents affecting her property rights. It simply was that the debt should be paid when they were married.
Some of the evidence on behalf of the defendant, as given by different witnesses, is as follows:
“They were out in the yard, and they came into the house, and he put his hand on her shoulder and said: ‘Well, Anna, you need n’t worry about the debt; after we are married the debt will be paid.’ •
“About three weeks after they were married they came back to our house. She and I were preparing something for dinner. We were in the dining-room, and he was outside pitching a tent. He came into the room. He slapped her on the shoulder, and he said to me: ‘Anna need not worry no more about the debt; her mortgage is paid.’
“We were talking, he and I and his wife, about the indebtedness on the place. My recollection is now that he told her that there was no indebtedness on the place. Right then I said to him that to protect Anna, his wife, he ought to cancel the mortgage. He said that would be the first thing to do when they got home.”
The statute of frauds does not render void the verbal contracts to which it refers. They are valid for all purposes except that of suit. (Stout v. Ennis, 28 Kan. 706.) The parties may perform them if they desire, and when performed the statute has no application to them. (29 A. & E. Encycl. of L. 829, 941.)
The plaintiff argues the case as if the contract were that he should enter of record a satisfaction of the mortgage. Such, however, was not the tenor of the agreement, and that duty followed, upon demand’s being made, whenever the debt was paid. (Gen. Stat. 1901, §4224.) Since the parol evidence introduced established a contract fully performed, it was competent.
The evidence might perhaps have been made the basis of different conclusions as to the existence of the contract relied upon as a defense to the suit. It was, therefore, properly submitted to the jury for interpretation. The jury has performed its duty in that respect, and the trial judge has approved the result. Hence, this court will not interfere.
Other assignments of error all converge in the proposition first discussed above, and need not be separately considered.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The district court sustained a demurrer to a petition for recovery upon a bond' and mortgage given to a Colorado building and loan association. It must have done so either upon the ground that the contract was in fact a Kansas contract, and therefore discharged under the laws of this state relating to usury, or because the usury laws of this state are applicable to it even though it be a Colorado contract. The mortgage covers real estate in Allen county. It recites that the mortgagor is a resident of that county, and it was acknowledged in that county; but the sums to become due upon the bond are made payable in Colorado. It expressly provides that its conditions are to be performed in the state of Colorado, and that it shall in all respects be governed by, and entitled to the benefits of, the laws of that state; and the petition expressly alleged that the bond and mortgage were delivered to the plaintiff in that state.
Since the instruments in suit were delivered in Colorado, the contract was made there. (Briggs v. Latham, 36 Kan. 255, 13 Pac. 393, 59 Am. Rep. 546.)
“Delivery is an essential part of the execution of any instrument. It is not enough to sign and seal a bond. It is effectual only when it is delivered to the party interested in it, or to some one for him. The bond might have been signed wherever it was most convenient for the obligor to give attention to it, but it was an ineffectual and useless paper until delivery by the obligor. The delivery was made in Delaware, where it was to be performed. It was made a binding obligation; its execution was completed in that state.” (Baum v. Birchall, 150 Pa. St. 164, 169, 24 Atl. 620, 30 Am. St. Rep. 797.)
The contract having been made in Colorado, and the sums due upon it having been made payable there, the presumption of law is that it is solvable by the laws of that state. That presumption, however, is a rebuttable one, and if nothing further appeared the court would have the right to take into consideration extraneous facts in ascertaining the true intention of the parties. But an express provision of the contract makes it subject to, and entitled to the benefits of, the laws of Colorado. Presumably the parties knew what they desired, and understood the force of the language they used; and having agreed upon the matter, and reduced their agreement to writing, further inquiry, except, of course, for fraud and the like, is precluded.
“The contract must be adjudged by its express terms, no matter where the parties were when it was made. And when those terms are clear, explicit, involved in no doubt whatever, they must prevail, and it is the duty of the courts to enforce them according to their literal meaning.” (Bennett, Appellant, v. Building & Loan Assn., 177 Pa. St. 233, 238, 35 Atl. 684, 685, 34 L. R. A. 595, 55 Am. St. Rep. 723.)
“There is no reason why their making their contract in one state instead of in the other, nor why their making it payable in one state instead of in the other, should have a controlling influence over the question. Doing either will, in the absence of other evidence, serve to show their purpose and control the result. Rut not so when they otherwise distinctly provide or when from other facts their intention can be more satisfactorily ascertained.” (Dugan v. Lewis, 79 Tex. 246, 253, 14 S. W. 1024, 1026, 12 L. R. A. 93, 23 Am. St. Rep. 332.)
“Where, however, the parties to the contract have themselves expressly declared that their contract shall be held and construed as made with reference to a certain jurisdiction, that shows by what law they intended the transaction to be governed. And, as said by Phillimore, 4 Int. Law, 469: ‘It is always to be remembered that in obligations it is the will of the contracting parties, and not the law, which fixes the place of fulfilment — whether that place be fixed by express tvords or by tacit implication — as the place to the jurisdiction of which the contracting parties elected to submit themselves.’ ‘In every forum,’ said Chief Justice Marshall, in Wayman v. Southard, 10 Wheat. 1, 48, ‘a contract is governed by the law with reference to which it is made.’ There is no room for inference or presumption as to what that intention was when it is expressed in the contract. Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104.” (Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 151, 26 S. E. 421, 422, 36 L. R. A. 271, 64 Am. St. Rep. 715.)
“When the intention of the parties to a contract, as to the law governing the contract, is expressed in words, this expressed intention determines the proper law of the contract and, in general, overrides every presumption.” (Dicey, Confl. Laws, 567.)
(See, also, 9 Cyc. 665; 22 A. & E. Encycl. of L. 1325.)
The fact that the mortgaged land lies in a state different from that -in which the contract is to be performed will not override express stipulations relating to the law by which it is to be governed. Such a circumstance may be important when the contract is open to interpretation, but otherwise it is not controlling. (Loan Association v. Forter, 68 Kan. 468, 75 Pac. 484.)
“Here two preliminary questions arose, the first of which was, whether the lex loci of the contract of 1815 was Rhode Island or Kentucky. By the usury laws of the latter, the contract, and all the securities given for it, are void, both for principal and interest. By the laws of the former, although it is prohibited to take more than six per cent, interest, and a penalty imposed for the offense, the act does not render the contract void, certainly not for the principal sum. . . . With regard to the locality of the contract of 1815, we have no doubt, that it must be governed by the law of Rhode Island. The proof is positive that it was entered into there, and there is nothing that can raise a question but the circumstance of its making a part of the contract that it should be secured by conveyances of Kentucky land. But the point is established, that the mere taking of foreign security does not alter the locality of the contract with regard to the legal interest. Taking, foreign security does not necessarily draw after it the consequence that the contract is to be fulfilled where the security is taken. The legal fulfilment of a contract of loan, on the part of the borrower, is repayment of the money, and the security given is but the means of securing what he has contracted for, which, in the eye of the law, is to pay where he borrows, unless another place of pay ment be expressly designated by the contract. No tender would have been effectual to discharge the mortgage, unless made in Rhode Island. On a bill to redeem, a court of equity would not have listened to the idea of calling the mortgagee to Kentucky in order to receive a tender.” (De Wolf v. Johnson, 10 Wheat. 367, 382, 383, 6 L. Ed. 343.)
“The contract for the loan was made in the state of New York; the money was advanced there; the note and mortgage delivered there; and the loan was to be repaid there. The fact that one of the incidents of the debt consisted of a lien, by way of mortgage, upon lands in Ohio, to secure payment, does not change the law in this respect. It was a contract not only made, but to be performed in the state of New York, and must be governed by the laws of that state.” . (Lockwood, Survivor, etc., v. Mitchell et al., 7 Ohio St. 387, 405, 70 Am. Dec. 78.)
“The only significance that can be attached to a mortgage on real estate, in disposing of a question as to usury in the obligation to secure which it has been given, is as an aid in determining the place of performance when the obligation is silent on that point. Minor, Confl. Laws, p. 390; 2 Jones, Mort. §660.” (United States Savings & Loan Co. v. Harris, 113 Fed. 27, 32.)
“Notes executed and made payable in one state are, as a rule, governed by the laws of that state; and the fact that a trust deed given as security includes land in another state, or that the maker lived and intended to use the money in the latter state, does not change the rule.” (Central Trust Co. of New York v. Burton, 74 Wis. 329, 43 N. W. 141.)
“The loan is the principal thing, or at least it should be so in contemplation of the law. The security is an incident to the loan; an important, probably an indispensable, incident, it is admitted; yet as such it should not be held to assume such colossal legal importance as to control the construction of the loan contract.” (Webb, Usury, §275.)
(See, also, Tenny v. Porter, 61 Ark. 329, 33 S. W. 211; Brower v. Life Ins. Co., 86 Fed. 748, 751; Pacific States Savings, Loan & Bldg. Co. v. Greene, 123 Fed. 43, 59 C. C. A. 167; Story, Confl. Laws, 8th ed., 287a.)
The rule announced by these authorities is of special force in this state, where the mortgage is a mere incident of the debt, vests no title to the land, creates no right of possession, and operates solely as security.
The contract provided that certain payments agreed to be made should be credited on the defendants’ stock subscription, and not as a repayment of the loan. The petition itemized all payments the debtor had made. By disregarding the stipulations of the contract, and making an arbitrary calculation of its own, the court was able to produce a result indicating that the contract would be usurious under the laws of this state, and that more than the principal and the Kansas rate of interest already had been paid.
But the petition pleaded the laws of Colorado, showing the contract to be a lawful one and not subject to the defense of usury in that state. Therefore, it was valid here. (Bedford v. Eastern Building and Loan Assn., 181 U. S. 227, 21 Sup. Ct. 597, 45 L. Ed. 834; Pioneer Savings & L. Co. v. Nonnemacher, 127 Ala. 521, 30 South. 79; Ware v. Building Association, 95 Va. 680, 29 S. E. 744, 64 Am. St. Rep. 826; Pioneer etc. Loan Co. v. Cannon, 96 Tenn. 599, 36 S. W. 386, 33 L. R. A. 112, 54 Am. St. Rep. 858; Bennett, Appellant, v. Building and Loan Assn., 177 Pa. St. 233, 35 Atl. 684, 34 L. R. A. 595, 55 Am. St. Rep. 723; Interstate Building and Loan Ass’n v. Edgefield Hotel Co., 120 Fed. 422; Peoples B. & L. Assn., Appellant, v. Berlin, 201 Pa. St. 1, 50 Atl. 308, 88 Am. St. Rep. 764; Miller v. Tiffany, 1 Wall. 298, 17 L. Ed. 540.)
The courts of this state should not refuse, on the ground of a supposed public policy, to enforce collection of sums due on a lawful bond solvable by the laws of a foreign state, and not given in evasion of the usury laws of this state, merely because if construed by the laws of this state the rate of interest would be higher than that allowed by the laws here. The position assumed by some courts in reference to this matter, when considering bijilding and loan association cases, can scarcely be regarded as anything less than the result of a tour de force.
There is nothing in the petition indicating that the plaintiff ever exercised any corporate privilege in this state beyond recording its mortgage and bringing suit to foreclose it. There is, therefore, no ground for holding that the plaintiff has undertaken to make the state of Kansas a field of operation for the purpose of securing to itself advantages not conferred upon our own citizens by' our laws. The defendants do not argue that the plan of the association itself is such as' to place it outside the protection of the laws of this state, nor is there anything in the petition to show that any of the terms of the contract were inserted as a mere subterfuge to enable the plaintiff to evade the laws of this state. The presumptions are all in favor of the legality of the contract and of the good faith of the parties.
Upon this subject the remarks of the supreme court of Pennsylvania in the case of Bennett, Appellant, v. Building & Loan Assn., supra, are pertinent:
“Nor is there the slightest ground for an allegation that the contract was made for the purpose of evading the usury laws of Pennsylvania. Who had such a purpose and what is the evidence of it? Did the plaintiff have it, and if so, did he communicate it to the defendant? If so, where is the evidence of it? There is none whatever. The defendant’s business was transacted at its proper place of business in the state of New York. This business was a part of its regular business done in its usual way, and as a matter of course the mere fact that this loan was made to a citizen of Pennsylvania cannot justify an inference that it was done with an intent to evade the laws of Pennsylvania. This business was done just as all its other business was done. The defendant had a lawful right to loan money wherever it pleased, and it would be most absurd to say that because it lent money to a Pennsylvanian it therefore intended to evade the laws of Pennsylvania. The Pennsylvanian had a right to borrow money in the state of New York if he chose to do so, and if he contracted to pay it in the state of New York he must be conclusively presumed to know that his contract would be governed by the law of that state. In all this there is not a shadow of an unlawful intent to evade the law of Pennsylvania.” (Page 238.)
It may be-that this transaction in fact involved a flagrant scheme concocted by 'the plaintiff to circumvent the interest laws of this state; that certain provisions of the contract were cunningly inserted for that purpose; and that the defendants were deceived or imposed upon concerning them in such a manner that a court of equity may unmask the fraud. In the investigation of such a question the courts will not halt and parley over words, but will urge their way directly to matters of substance, and, will finally render such a judgment as will do justice and vindicate the law; but no such vicious purpose is disclosed by the petition in this case, and if a fraud upon the law has been committed the facts must be pleaded and proved.
The judgment of the district court is reversed, with direction to overrule the demurrer to the petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The question is squarely presented in this case whether a householder of a school district may institute and maintain an action against the treasurer thereof for a misappropriation of the funds of the district, if the director neglect or refuse to prosecute the action. Section 6174 of the General Statutes of 1901 reads in part as follows:
“And said bond [district treasurer’s bond] shall be filed with the district clerk, and in case of the breach of any condition thereof the director shall cause a suit to be commenced thereon in the name of the district, and the money collected sháll be applied by such director to the use of the district, as the same should, have been applied by the treasurer; and if such director shall neglect or refuse to prosecute, then any householder in the district may cause such prosecution to be instituted.”
It is conceded by counsel for defendant in this case that this section authorizes any householder of the district to institute an action. They say that possibly he could institute but he could do no more, and they resort to the dictionary to find definitions of the word “institute,” and cite as one of its synonyms “commence.” It will be observed by a careful reading of the foregoing quotation from the statute that the director is only authorized to commence an action in the name of the district. It is further provided what he shall do with the money collected, so that the authority of the director, and upon his refusal the authority of any householder, to begin an action in the name of the school district against a treasurer that has committed a breach of the conditions of his bond is identically the same. To commence is to institute, and to institute is to commence. It would be a very strange construction of this statute to hold that the director is authorized to commence an action but is not authorized to maintain or prosecute it to final judgment. It would be equally strained so to construe it that a householder is authorized to institute an action, under the prescribed conditions, but is not authorized to maintain it. The breach of the condition •of his bond having been alleged against the treasurer, and there being no denial in any pleading either of this charge or of the allegation that the director had neglected and refused to commence an action to recover the money claimed to have been wrongfully paid out, it seems somewhat remarkable that the director should have been even heard upon a motion to dismiss, without any attempt to purge himself of the charge of neglecting his duty as an officer.
Perhaps it is somewhat anomalous that an individual householder should be authorized by the statute to begin an action in the name of a school district without any authority from the school-district board or from a school-district meeting, but such is the provision of the statute. The government of a school district, as. provided for by statute, is generally quite democratic. Every householder in the district is supposed to be interested in the public schools, and in safeguarding the funds provided by law for maintaining them. The legislature has expressly provided that in cases of this nature, where the director neglects or refuses to prosecute, any householder may proceed; and we are asked to place a limitation upon this power by holding that he must have the consent or authority of the director, or at least of a majority of the voters expressed at a public school meeting. This may be a wise suggestion for the legislature to consider, but as the act is unequivocal in its terms we cannot read into it any such limitation. It is true that the power thus conferred upon a householder might be abused, and a householder might bring an action without cause, when no one else in the district desired that it be brought. This is equally true, however, of the director. Any power, wherever lodged, may be abused; but in a small community like a school district, where every householder has a more or less intimate knowledge of all of the affairs of the district, and where the people generally have pretty full information as to the merits of any claim that might be asserted against their treasurer, and pretty full means of knowing the motives of any householder who> may assume to bring an action in the name of the school district, we may reasonably presume that the legislature thought there was little danger of the abuse of this power conferred.
As the defendant below was in default at the time the motion of the plaintiff for judgment on the pleadings was filed, and even at the time it was heard, the motion of the plaintiff should have been granted; and. we would be justified in remanding the case with instructions to render judgment in favor of the plaintiff below for the amount claimed. The action, however, is somewhat of a public nature, and the question, as to the authority of a householder to proceed without express authorization from the school district is evidently raised in good faith, and, we believe, for the first time in this court. We shall, therefore, only order that the judgment below be reversed and the case remanded, with instructions to grant a new trial, after the court shall have allowed such pleadings as the-parties may ask leave to make and the court may think proper. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
The plaintiff in error brought an action in the district court of Shawnee county against John R. Mulvane, and in her petition alleged “that on or about the 17th day of February, 1903, she and the defendant, by and through C. E. Gault, who was the defendant’s duly authorized agent for that purpose, entered into a written contract, which was then duly executed by them,” by the terms of which, in consideration of the conveyance by the plaintiff and her husband to the Amusement Syndicate Company of three lots in the city of Topeka, subject to a certain lease, and to a note and mortgage, which the amusement company was to assume and pay, the defendant agreed to pay the plaintiff $20,000. She further alleged that immediately thereafter she and her husband, in compliance with the contract, conveyed the lots therein described by executing and delivering to the Amusement Syndicate Company a deed thereto, which was then tendered and delivered to the defendant, and that she had fully complied with all the conditions of the contract on her part. She further alleged that, on demand, the defendant neglected and refused to pay the money contracted to be paid, or any part thereof, and she claimed judgment for the amount, with interest.
On the trial of the case, which was had without a jury, the court, after hearing a mass of evidence as to the circumstances that led up to the making and signing of the contract, and as to what occurred thereafter between the parties in relation thereto, rendered judgment in favor of the defendant for costs, and also filed a written opinion for the purpose, as it says, of informing this court as to the grounds upon which it acted, in case its judgment should be brought here for review. The opinion disclaimed any decision upon the evidence. Among other things the court said:
“It is contended on behalf of the defendant that this is not such a contract as can be enforced, even if its execution be admitted; and this is the proposition upon which the court proposes to decide the case — whether the contract before us is one that can be enforced.”
After some argument upon this proposition the opinion continued;
“The court is of the opinion, therefore, that this contract cannot be enforced; that it is not uncertain or ambiguous, and that it cannot be contradicted or varied by parol testimony.”
This is an action upon an optional contract to sell and convey certain land for a definite price. It is alleged that the option had been accepted and a conveyance tendered by the plaintiff. The case of Johnson v. Furnish, 29 Kan. 523, is quite similar to this, except it was not upon an optional contract, and was to compel the conveyance of land instead of the payment of the contract price. In that case Johnson contracted, through an agent, to sell a tract of land to Furnish, who, by an arrangement with Sperry, directed the deed to be made to the latter, Johnson not knowing the name of the purchaser. Sperry, before the transaction was closed, refused to carry out his arrangement with Furnish, and the latter thereupon tendered the purchase-price and demanded a deed from Johnson to himself. Johnson, suspecting fraud, refused to convey to Furnish, who then brought suit. Mr. Justice Brewer, delivering, the opinion of the court, said:
“Again, the contract was no fraud upon Johnson; neither was there any imposition upon him in directing the deed to Luther Sperry. It was nothing to him as to who should be named as grantee in the deed. All that he had a right to insist upon was the $475 in cash, and whether the purchaser wanted the deed made to himself, his wife, a child, or a stranger, was a matter which in no. manner concerned the vendor, and gave him no ground of complaint.” (Page 526.)
Let us assume, as did the court below, that the agreement was executed. Mulvane directed the.conveyance named in the contract, and presumably had an understanding with the amusement company when he contracted to have the conveyance made to it. If he had no such understanding, or if, having it, the amusement company refused to carry it out, was no concern of the vendor. Mulvane could have substituted some one else or could have taken the conveyance to himself, and Mrs. Quinton would have been compelled to make the conveyance or relinquish the sale. She could not have claimed a breach of the contract if Mulvane had consented to have the conveyance made to any one whomsoever. If she had tendered performance in accordance with the terms of the contract, and Mulvane had refused to accept it only because the amusement company declined to enter into the transaction, it would have been optional with her to sue for damages for the breach of the contract or for its specific performance.
The defendant insists, and the court below found, that this contract is not ambiguous. If so, it should be enforced. It is contended that the word “convey” in the contract means “to pass title.” This may sometimes be true, but generally where one agrees to convey land on the payment of money the word “convey” is to be construed as meaning the making and delivery of a deed. The grantor does all that is possible for him to do when he makes, and tenders the delivery of, a deed.
If this contract was executed, as alleged, it does not expressly obligate Mrs. Quinton to make the conveyance, but says “in consideration of Mary E. Quinton and E. S. Quinton’s conveying to the Amusement Syndicate Company, ... I agree to pay.” From this it is argued that the contract is void for want of mutuality, and the case of Railway Co. v. Bagley, 60 Kan. 424, 56 Pac. 759, and other decisions of this court are cited as authority. We do not think these decisions are applicable. The distinction in each case is evident. The case of Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663, is very much more analogous. The syllabus in that case reads:
“An optional agreement to sell and convey land, signed by the owner alone, although unilateral at its inception, becomes absolute and mutually binding on both parties if the option be accepted by the vendee within the time and on the terms specified; and such an agreement will be specifically enforced, if fairly made and for a sufficient consideration.”
In other words the contract becomes absolute and mutually binding when the party upon whom rests the option accepts it and tenders performance. An option' to sell rests upon the same basis as an option to buy.
A mere offer or a promise to buy or to sell, if not repugnant to the statute of frauds, and if accepted before revocation, may become a binding contract. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695.)
The judgment of the district court is reversed, and ■ a new trial granted.
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The opinion of the court was delivered by
Cunningham, J.:
Plaintiff in error was defeated in her suit to quiet title to certain real estate. The judgment against her must be affirmed unless she shall succeed in establishing the correctness of one or the other of the following propositions, which she asserts: (1) Neither under the common law nor the statutes of Kansas can a judgment for costs be rendered against the defendant in a bastardy proceeding; (2) neither under the common law nor the statutes of Kansas can an equitable interest in real estate be sold under execution.
The process of reasoning adopted by the plaintiff in error to sustain the first proposition is as follows: The right to recover costs does not exist at the common law; so, if it exists at all in any case, warrant therefor must be expressly found in the statutes; under sections 5075, 5076- and 5077 of the General Statutes of 1901 costs are allowed only in actions, civil or criminal; the proceeding under the bastardy act is not an action, either civil or criminal, but is a special proceeding, such as is designated in sections 3, 4 and' 5 of the code of civil procedure (Gen. Stat. 1901, §§4431-4433), which read as follow:
“3. Remedies in the courts of justice are divided into — First, actions; second, special proceedings.
“4. An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.
“5. Every other remedy is a special proceeding.”
To maintain the claim that the bastardy prosecution is a special proceeding, and not an action as defined by the foregoing sections, several cases decided by this court are quoted in which such prosecution is spoken of as a proceeding. (In re Wheeler, Petitioner, 34 Kan. 96, 8 Pac. 276; Moore v. The State, ex rel., 47 id. 772, 28 Pac. 1072, 17 L. R. A. 714; In re Lee, Petitioner, 41 id. 318, 320, 21 Pac. 282; The State v. Baker, 65 id. 117, 69 Pac. 170; The State v. Jehlik, 66 id. 301, 71 Pac. 572, 61 L. R. A. 265.) In all of these references it will be noted, however, that the term “proceeding” is used incidentally and not with an attempt at classification to fit the statutory definition. Such an attempt has never been made by this court.
In view of the provisions found in section 5080 of the General Statutes of 1901, which directs that the several clerks of the district courts shall tax the costs in each case and insert the same in their respective judgments, it may well be doubted, admitting this to be a special proceeding, whether the costs thereof are not properly taxed against a defendant; but we are of the opinion that a bastardy prosecution under our statute responds in all essential respects to the definition of an action found in section 4 of the code of civil procedure, above quoted.
The bastardy act, which is chapter 47 of the General Statutes of 1901, provides for the arrest of the person charged by the oath of the relatrix; that he be brought before a justice of the peace; that the justice proceed to hear the complaint, in which hearing the rules of evidence and the competency of witnesses shall be the same as in civil cases; and, if the justice upon the hearing adjudge the defendant to be the father of the illegitimate child, he shall require the defendant to enter into a recognizance to appear at the next term of the district court to answer the complaint. Both in the district court and before the justice of the peace the trial and proceedings are governed by the law regulating civil actions. The death of the mother pending the prosecution does not abate the action if the child be living, but a guardian ad litem, may be appointed and the suit proceed, the guardian, however, not being liable for costs. The trial in the district court is by the court or jury, and a money judg ment for the maintenance and education of the child must be entered against the defendant if he be found guilty, upon which execution may issue and be satisfied as in other cases.
The prosecution is under the direction of the relatrix; she may accept satisfaction and dismiss the action. (Gleason, Sheriff, v. Comm’rs of McPherson Co., 30 Kan. 492, 2 Pac. 644; The State v. Baker, 65 id. 117, 69 Pac. 170.) The money judgment is collectable by her, and her only, if she be alive. Whether it be called an action or a special proceeding matters little. It is being prosecuted by a party who has a right under the statute so to prosecute against another party, who is called a defendant, for the enforcement of a right given to her by the statute. The statute contemplates that costs shall be taxed to some one, for it says that under certain circumstances the justice shall receive no fees; it also provides that a guardian prosecuting for a child after the death of the mother shall not be liable for costs. It has also been decided that in no event is the county liable for costs. (Gleason, Sheriff, v. Comm’rs of McPherson Co., supra.) Now, if costs are to be taxed is it reasonable to suppose it was the purpose of the legislature to have them taxed against a successful prosecutrix, or against an unsuccessful defendant whom she is proceeding against for the enforcement of a right?
With these things drawn from the bastardy act in mind, and remembering further that that act took effect at the same time that the civil-procedure act did, we come to the conclusion that section 5075, cited above, applies to an action or proceeding to compel the putative father of a bastard child to support it; that such a proceeding is one for the recovery of money only, and as such the judgment in favor of the relatrix draws with it the costs of the action, and that such costs are properly taxed against the defendant. This conclusion is fully supported by the case of Jones v. The State, 14 Neb. 210, 14 N. W. 901, where it was held:
“Proceedings under the bastardy act are in the nature of a civil action to enforce the performance of a special and moral obligation — the support by a father of his child.”
In that case it was held that, though the defendant be found not guilty, it was competent to tax a portion of the costs against him, under the provisions of a section of the Nebraska code identical with those of our section 5077 of the General Statutes of 1901.
Great stress is laid by plaintiff in error upon the fact that by the bastardy act of 1862, which was superseded by the present law, provision was made in .specific terms for taxing costs against the defendant, the argument being that its omission from the present law is a clear indication of a change of policy and purpose. Under certain circumstances this would be .a strong arguhient. It is, however, very much weakened, if not entirely destroyed, when we note the fact that the whole structure of the law was changed. Under the former act it was a proceeding largely in the interest of the state, in order to make some provision whereby the bastard child should not become a public charge, and the action could be maintained without the consent of the mother; so that it may well be doubted if the distinctive characteristics of an action, as laid down in section 4 of the code, were found in the bastardy act as it then was.
We note the further difference in the two acts in this, that section 8 of the present one provides:
“The trial and proceedings of such prosecution, both before the justice and in the district court, shall in .all respects not herein otherwise provided for be governed by the law regulating civil actions.” (Gen. Stat. 1901, §3327.)
No such provision is found in the former act. It might not De a far stretch here to construe the word “proceedings” as indicating all steps taken in an action, including specially the taxation of costs, when we consider the clear implication elsewhere found that costs were to be taxed to some one; at least, this section carries with it a strong suggestion of the close relaionship of the proceeding under the new act to a civil action. We cannot affirm plaintiff’s first proposition, but think that costs are properly taxable against an unsuccessful defendant in a bastardy prosecution.
The facts upon which a discussion of the second proposition must rest were found by the court and, briefly summarized, are as follow: On July 27, 1895, DeWitt C. Poole and his brother were the owners by assignment of a state normal school-land certificate for the land in controversy, upon which there remained due to the state a considerable portion of the purchase-price. They obtained this certificate from William Poole and gave to him a mortgage on the land to secure the payment of the price they had agreed to give him. On this date DeWitt C. Poole and his brother assigned this contract to E. S. Ellis, to secure to him the payment of the sum of $350 within one year from that date, and Ellis gave back to Poole an agreement to reassign the contract to him upon the payment of that sum, together with such further sums as Ellis should in the meantime pay for taxes on the land and for interest and principal upon the purchase-price, with interest on all such sums. In October, 1899, DeWitt C. Poole, having paid nothing whatever to Ellis, transferred the agreement and his rights thereunder to his sister, Louisa Ann Poole, the plaintiff in error, upon the sole consideration that she would assume the payment of the mortgage theretofore given to William Poole., On November 13, 1899, Ellis paid to the state the balance due it under the school-land contract held by him and received a patent for the land. On February 10, 1900, Ellis deeded the land to Louisa Ann Poole, there then being due to him the sum of $2425, and she at the time executed her notes and mortgages covering the amount due to William Poole and to Ellis. She, however, was at the time possessed of no property whatever and did not pay to Ellis or any one else anything of value for the land. At and prior to this date the land was occupied by DeWitt C. Poole and his sister and mother, and the occupancy and possession remained the same after the transfer of the title as before. All of the business transactions in connection therewith were conducted by DeWitt C. Poole, and payments for improvements were in effect made by him.
At the time of the transfer of the title of the land from Ellis to the plaintiff in error there was a judgment for costs in a bastardy case against DeWitt C. Poole, of which Louisa Ann Poole had full knowledge. The latter never gave any valuable consideration or anything of value to DeWitt C. Poole or any one else for any title or claimed title to the real estate in question and was not an innocent purchaser of the same or of any interest therein. She in fact held the record title thereto for her brother, DeWitt C. Poole, and she never had any possession of the same except as a member of the household consisting of herself, her brother, and her mother.
On February 15, 1901, an execution in due form was issued upon tne judgment against DeWitt C. Poole, which was levied upon the land in question, which, after due advertisement and in conformity with the law, was sold to N. M. French, the defendant in error, by virtue of such levy. This sale was subsequently confirmed by the district court and a sheriff’s deed issued to French, and this is the claim against which the title was sought to be quieted in the court below in this suit.
The essence of all the above facts is that while DeWitt C. Poole never at any time held the legal title to the land he was at all times at and after the rendi tion of the judgment the equitable owner, subject to the payment of such liens as existed in favor of William Poole and E. S. Ellis; that while Ellis held the legal title such holding was only in the nature of a mortgage, and when he transferred it to Louisa Ann Poole she took it with no beneficial interest, but only to hold for her brother; in short, that while the legal title was in the plaintiff in error, at the time of the levy of the execution the land really belonged to DeWitt C. Poole — he was the equitable owner. Under this state of facts it is contended that neither under the common law nor the statutes of Kansas may the equitable title thus belonging to such owner be sold on an ordinary execution. This is the question pressed for our consideration.
As a preliminary question it is suggested by plaintiff in error that under the facts no title whatever ever vested in DeWitt C. Poole; that these facts bring the case within the principle laid down in Chantland v. Bank, 66 Kan. 549, 72 Pac. 230. It was there decided, following the provisions of section 7880 of the General Statutes of 1901, that where one person purchases real estate and causes the title to be conveyed to another, who is ignorant of such conveyance, such other holds the property in trust for all the creditors of the person paying such consideration. There the controversy arose between creditors, and not between one creditor and the one who furnished the consideration, as in this case. The distinction is obvious.
We may admit that the common law furnishes no authority for the levy and sale upon execution of land held by an equitable title. The defendant does not so claim; he claims under the statute. Plaintiff resists this claim, and says that the only way to subject such an interest as DeWitt C. Poole is here shown to have had to the payment of his debts is by virtue of the provisions of sections 481, 482 and 483 of the code of civil procedure, commonly known as proceedings in aid of execution, and claims that, this remedy having been given where none before existed at common law, it is exclusive and is the only one available. Without following the argument of plaintiff, which is ingenious both in what it contains and what it omits, we disapprove of it.
Adopted as a part of the same code of procedure and at the same time as were the above-cited sections was the following:
“443. Lands, tenements, goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution, and sold as hereinafter provided.” (Gen. Stat. 1901, §4893.)
At the same time, and as definitive of the terms used, the following was adopted, it being the eighth subdivision of chapter 104:
“The word ‘land,’ and the phrases ‘real estate’ and ‘real property,’ include lands, tenements and hereditaments, and all rights thereto and interest' therein, equitable as well as legal.” (Gen. Stat. 1901, §7342.)
Can there be any question, with the word “land” thus defined, that section 443 affords ample authority for the taking on execution of the interest — the land —of DeWitt C. Poole, as was done in this case? The two remedies may well stand together. Sometimes one may be found the more efficient, sometimes the other; they are in no sense inconsistent — they are merely cumulative, or alternative.
It is proper to note that the court finds that the execution was levied “upon the real estate in question” as the property of DeWitt C. Poole, and it was the land itself that was sold. The levy was not upon, nor was the sale of, an equitable interest. Land may be held by. an equitable title under our statutes as well as by, and even as against, a legal title. It will be further noted that DeWitt C. Poole was in possession presumably by virtue of his equitable title.
The propriety of the form of procedure adopted in this case has repeatedly been recognized by this court. The facts in the case of Aldrich v. Boice, 56 Kan. 170, 173, 42 Pac. 695, are quite analogous to those in the case at bar, so far as the final condition of the title is concerned, and it was there said: “Land held by an
equitable title is subject to levy and sale, as well as that held by legal title.” In Morgan v. Field, 35 Kan. 162, 10 Pac. 448, Morgan executed a voluntary conveyance of a tract of land, thus devesting himself of the legal title, but with the understanding that the real title and interest thereto should remain in the grantor he also remained in possession and treated it as his own. Subsequently he executed a mortgage on the land, and in a suit against his administrator to foreclose such mortgage it was held “that the full equitable title to the land was in the grantor at the time of his death, and that the same may be sold to satisfy a mortgage previously given thereon by such grantor.” Surely if this could be done the land might have been taken on execution. In Polley v. Johnson, 52 Kan. 478, 35 Pac. 8, 23 L. R. A. 258, the law was thus stated in the syllabus:
“Where land is conveyed by the owner to another in trust to reconvey to the grantor’s wife, or such person as the grantor may thereafter designate, and the grantee has no interest in the lands, but afterward executes such trust by a conveyance to the grant- or’s wife, as between grantor and his creditors, such lands will be treated as his property until reconveyed by the trustee; and the fact that such trust rests in parol, and is therefore not enforceable under the statute concerning trusts and powers, does not change the rule.”
The case of Shanks v. Simon, 57 Kan. 385, 46 Pac. 774, lays down the same doctrine, and quotes Aldrich v. Boice, supra, in support of it.
The discussion thus far has proceeded upon the fact clearly shown by the record that the levy was made upon, and the sheriff’s sale and conveyance was had of, the land in question and not of the equitable interest of DeWitt C. Poole therein. Technically, the proposition of plaintiff in error goes only to the latter. It is not easy, at least under the facts of this case, to discriminate. Some cases might arise where the distinction could be drawn, but it is not seen here.
It is evidently the policy of our statute to permit the appropriation of any valuable interest in nonexempt land which a debtor may have to the payment of his debts. So it is permitted to take by attachment and sell as upon execution any such interest, be the same legal or equitable. (Code, §222; Shanks v. Simon, supra.) There may be found difficulty in some cases in ascertaining what such interest is, its extent and value, but such difficulty does not abrogate the right or divert the policy. If the creditor shall find himself unable satisfactorily to proceed by the regular process of execution and sale he may adopt the procedure pointed out in the sections of the statute relative to proceedings in aid of execution.
We are cited to the case of Kiser v. Sawyer, 4 Kan. 503, as conclusive support for plaintiff’s position, and some language is quoted looking that way. The question now before us was not then being considered. There the question was whether the procedure pointed out in the sections of the statute relative to proceedings in aid of execution was available — whether such proceedings were proper, not whether some other proceedings were not also proper. The cases of Kirkwood v. Koester, 11 Kan. 471, and Plumb v. Bay, 18 id. 415, are also cited, but we find no support in either of them for plaintiff’s contention.
We find the law to be that under the facts of this case the land of DeWitt C. Poole was properly taken to satisfy the judgment against him.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The principal questions argued by the plaintiff in error in this case depend for their solution upon disputed matters of fact. The duty of the company with reference to the care to be observed in the maintenance of its station and the conduct of its business is really not" controverted. It is true, as the court said, that the proper character of the lights furnished at any particular station will depend upon the character and extent of business transacted at the station. If many passengers are to be taken on the trains, and many others are to be discharged, if much baggage, mail and express is to be handled by many employees, if the station grounds must be used at the time of the arrival of trains by many persons having business there with the company, or with incoming or outgoing passengers, confusion and accident at night can be prevented only by the aid of a lighting system much more extensive than would be required under other circumstances. The further statement by the court that light which would be sufficient at one station might be inadequate at a larger one, instead of opening a field for comparison served merely to fix the attention of the jury upon the peculiar facts of the case on trial. The statement that it was the duty of the company to furnish lights sufficient to guide safely the steps of a passenger was immediately explained, and twice explained, to mean with reasonable safety.
The definition of negligence was, by the instruction as a whole, entirely relieved from the quality of abstractness, and its true bearing upon the evidence made apparent.
This court is not the body to solve the conflict in the evidence as to how the mail-bags were handled and where they were left. Nor can this court, from the bare record, declare as a matter of fact that a mail-bag did not trip the deceased, or announce as a proposition of law that it was not negligence in the company to permit the injured man to be tripped by it.
There is evidence that the station was reasonably well lighted. There is other evidence that it was so dark that it was dangerous. The jury have decided the matter, and its conclusions must stand.
It is impossible from all the circumstances of the occurrence for this court to say that light would not have been a protection to the deceased. The question is a debatable one. Even if the court might have an opinion, derived from the words in the record, different from that of the jury, it does not have the illustration given by one of the witnesses of the movements of the deceased, nor the illuminating effect attaching to oral recitals of the facts by those who observed them. There is fair evidence that the darkness made the deceased oblivious of his peril, and that is sufficient to uphold the conclusion of the triers of fact. The whole conduct of the deceased was a matter for the jury to approve or condemn, according to the interpretation which the facts, in their estimation, required.
The custom pleaded and proved was shown to be known and' understood by the company, and amounted to an adoption by-it of the results of interference by third persons with mail-bags; at its station.
The claimed variance would scarcely be material even in a criminal case.
The instruction concerning the measure of damages, considered in its entirety, could not have prejudiced the defendant, and the conduct of a juror complained of was not sufficiently flagrant to warrant the court in annulling the verdict. Other matters discussed in the brief are inconsequential, and the judgment of*the district court is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
By chapter 297 of the Laws of 1901 the legislature declared a road along a given section-line therein named to be a county road. By section 2 of the act authority was conferred upon the county commissioners as follows:
“The board of county commissioners of Reno county are hereby authorized to build and construct such gradings, bridges and culverts as may be necessary to make and maintain such county road a suitable highway for the accommodation of the public; and to carry out the provisions of this act the said board of county commissioners of Reno county are hereby authorized and empowered to appropriate a sum not exceeding one thousand dollars in addition to the amount now authorized by law, or so much thereof as may be deemed necessary.”
To make the given road available for general travel it was necessary to erect bridges thereon costing approximately the sum of $3000, and being so improved the road would be of general public utility. This action was for the purpose of compelling the county commissioners of Reno county to erect such bridges and make such other improvements as would put the road into a usable condition — this upon the theory that the section above quoted made the doing of the things therein mentioned mandatory upon the commissioners, and not permissive and discretionary merely. The district court took the contrary view, and the question is now here presented by the relator. He claims the law to be as stated by Nelson, C. J., in The Mayor &c. of the City of New York v. Furze, 3 Hill, 612, where it was said:
“Where a public body or officer is clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the statute creating it be only permissive in its terms.”
We think that this is a correct statement of the law in general, and, were there nothing to be taken into consideration outside of the act of 1901, determinative of the question at bar in favor of the plaintiff in error. By the terms of the quoted section, however, we are required to look to other provisions of the statute, as the amount which is thereby authorized to be expended can only be ascertained by such investigation. Nor do we find in the act cited any provision relating to the procedure which must be followed in making the required improvements. Are the county commissioners to advertise for bids for the doing of the work in whole or in part, and let to the lowest bidder, or may they contract without such advertisement, or employ men by the day and furnish material? In other words, is it not quite obvious from the incomplete and fragmentary character of this act — what it contains as well as what it omits — that it was intended but as a part of the law which was to govern in the matter?
With this inquiry we turn to chapter 16 of the General Statutes of 1901, and find there a general law relating to the subject of bridges. By this general act discretion is committed to the county commissioners to determine what bridges shall be built at the expense of the county. It provides the rules to be observed in the construction of bridges, and directs that no bridge in counties as populous as Reno shall be constructed costing more than $2000 without submitting the question to the qualified voters of the county at a general election. We are persuaded that the special statute of 1901 must be construed in the light of the provisions of this general statute; and in that light the authorization contained in section 2 cannot be construed tc be mandatory as to the matter of building the bridges and making the improvements, but rather extends the authority of the commissioners to expend the amount of $3000 instead of $2000 in this case without a vote of the people, leaving the discretion whether the improvement shall be undertaken at all with the board of county commissioners. (The State v. Commissioners, 31 Ohio St. 211.)
The general policy of our laws and theory of government is to commit these local matters to local determination; and while beyond question the legislature might peremptorily direct a board of county commissioners to erect a given bridge, still such general policy would lead us to resolve a given question in favor of local determination, in case a reasonable construction of the statute would permit us so to do. In this case we think the special statute was in pari materia with the general one, and, so viewed, does not take away the discretion reposed in the board of county commissioners found in the general statute.
The judgment of the lower court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Mrs. Frances J. Riley conveyed to E. L. Allen a tract of land in exchange for $100 and the assignment to her of the rights held by E. W. Allen under a patent covering a washing-machine, so far as related to operations within the state of Kentucky. The transaction took place in Coffey county. No copy of the letters patent or affidavit of their genuineness had been filed with the clerk of the district court of that county, as required by the Kansas statute. (Gen. Stat. 1901, §§4356-4358.) Upon this ground Mrs. Riley brought a suit against the Allens to rescind the contract and to recover the value of the land, which had in the meantime passed into other hands, less the amount of money she had received. She recovered a judgment for $1250, from which error is now prosecuted.
Plaintiff in error claims that the act referred to is void, upon the ground that it attempts to restrict the right granted to the holder of a patent under the federal statute. The act has already been upheld against such attack in Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327, where authorities are cited in support of the decision made, which is now reaffirmed. (See, also, 22 A. & E. Encycl. of L. 446; Union Nat. Bank v. Brown [Ky. App.], 41 S. W. 273, 38 L. R. A. 503, 72 Am. St. Rep. 420; State v. Cook, 107 Tenn. 499, 64 S. W. 720, 62 L. R. A. 174.)
A second objection to the judgment rendered is based upon the fact that the plaintiff did not, prior to beginning her suit, offer to restore to the defendants the patent-right that had been assigned to her, although an offer to do so was made in her petition. It is urged that this omission was fatal to a recovery, or at all events should have prevented any judgment for costs against the defendants. Such a tender was not a prerequisite to the bringing of the suit. There was nothing in the character or circumstances of the case to take it out of the general rule, which is thus stated in Thayer v. Knote, 59 Kan. 181, 182, 52 Pac. 433:
“Where equity requires the restoration of what has been received under a contract as a condition to its rescission, it is sufficient to make the offer of restoration in the petition, and not necessarily before the bringing of suit.”
(See, also, 24 A. & E. Encycl. of L. 621.)
If the defendants, upon being sued, had consented to accept the return of the patent-right and make restitution upon their own part they might well have claimed exemption from liability for costs, but in view of the fact that they contested the rescission of the contract in the trial court, and are still contesting it in this court, they are in no position to complain of the award made.
Other assignments of error are made and argued, but they are based upon assumptions of fact that are contradicted by the findings of the jury, and need not be discussed. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The judgment of the court below is affirmed for the reasons stated in the opinion filed in Scaife v. Savings Association, ante, p. 402. | [
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Per Curiam:
In this case the defendant was convicted of the crime of grand larceny, and sentenced to the penitentiary of the state of Kansas for a period of one year. Several errors are assigned, but only one is presented for our consideration by the briefs, to wit, that the evidence is not sufficient to sustain a judgment of conviction. The evidence is conflicting, and, while a verdict and judgment of not guilty might well have been rendered upon it, yet, viewed in its most favorable light to the state, as we are obliged to view it after it has been passed on by the jury and their conclusion approved by the trial court, there is sufficient evidence upon every material question involved to sustain the verdict and sentence.
The judgment of the district court is therefore affirmed. | [
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Per Curiam:
In these cases the judgments of the district court are reversed and the causes remanded for judgment, following the principles announced in Clark v. Allaman, ante, p. 206. | [
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Per Curiam:
The judgment in this case depends upon the interpretation to be given to a written agreement. The only argument in favor of the position that the agreement created a partnership is the fact that the earnings of a certain business were to be applied to the purchase of property,- which, when ultimately acquired by two of the parties, was to be divided by them with the third. It is not true, however, that profit-sharing is the unfailing test of the existence of a. partnership relation. While it may be one of the tests, it may be controlled by other considerations. (Shepard v. Pratt, 16 Kan. 209.) A careful scrutiny of all the terms of this writing, in the light of the circumstances and surroundings of the parties when it was made, leads to the conclusion that the division of property contemplated was intended to be a remuneration for services in addition to the salary agreed upon.
Therefore, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The evidence in the case was not preserved, and the rights of the parties must, therefore, be determined by the findings made by the trial court. Whetstone bases his claim to the land on adverse possession, held for a longer time than is necessary to give title by limitation. He enclosed and improved the land in 1880, and since that time has been in the exclusive and continuous possession of it. It is contended that the possession was not such as would ripen into a title, and that when he conveyed the land to Hannah Dryden his continued possession was subordinate to her rights and indicated that he was holding possession for a temporary purpose only, as her tenant at sufferance. It has been repeatedly held that an owner who conveys land and continues in possession of it after his conveyance is recorded is deemed to be holding under his grantee, and in subservience to the record title. (McNeil v. Jordan, 28 Kan. 7; Sellers v. Crossan, 52 id. 570, 35 Pac. 205; Hockman v. Thuma, 68 id. 519, 75 Pac. 486.) In such a case the statute of limitations would not begin to run until the presumption of holding in subserviency to the title of the grantee was in some way overcome.
Under the facts found, however, it cannot be said that Whetstone remained in possession of the. land after his deed was made and recorded. The land was not fenced, cultivated or otherwise improved until 1880. When Whetstone conveyed it to his niece it was unoccupied, and his possession was only constructive. His conveyance of the vacant land transferred both title and possession to his grantee. In such a case the possession is deemed to follow the title. (Gildehaus v. Whiting, 39 Kan. 706, 18 Pac. 916; 15 Cyc. 36.) Such possession as Whetstone had was therefore interrupted from 1874 until 1880, during which time it must be regarded as having been in his grantee. When he enclosed the land, in 1880, and cultivated and improved it, his possession, then taken, was wholly independent of the constructive possession that he held at the time of the conveyance to his niece.
The supreme court of Nebraska had under consid eration a case involving the transfer of title to vacant lands which the grantor subsequently took actual possession of, and on which he made permanent improvements. The court said:
“The holder of the legal title to vacant lands is deemed to be in possession thereof. (Troxell v. Johnson, 52 Neb. 46, 71 N. W. 968.) Hence, when Horbaeh executed and delivered a deed to Boyd which conveyed the legal title, possession went with it. The land being vacant, the same act that devested Horbach’s title and created a title in Boyd terminated Horbach’s possession, and put Boyd in possession. Such possession, as we understand the defendant’s claim, continued for four years. Then, in 1861, as defendant offered to prove, Horbaeh enclosed the land and other tracts with a substantial fence; he and his lessees cultivated it; he publicly and notoriously claimed to own it, and was named as owner on maps and plats in general circulation ; the land was assessed as his; he conveyed it, and he and his grantees and lessees put' houses upon it. This is not a continuance of the possession existing prior to the conveyance. It is a subsequent entry, creating a new and independent possession, and giving rise to a new and original title.” (Horbach v. Boyd, 64 Neb. 129, 132, 89 N. W. 644.)
Whetstone was out of possession of the land for about six years, and the possession taken in 1880 and exclusively held for about twenty years before this action was begun is to be regarded as a distinct and independent possession, and as the foundation of a new and original title. As he did not continue in possession after conveyance the rule invoked as °to the kind of disclaimer necessary to change a permissive possession into an adverse one has no application. His occupancy and improvements were an open assertion of a claim of right in the land, and were of such a character as to give notice to Hannah Dryden and others interested in the land of an intention to appropriate it. He entered upon the land with the intention “to keep it” for himself, and the fact that he then had no title or color of title did not prevent him from acquiring the land by adverse possession.
“Possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” (Pratt v. Ard, 63 Kan. 182, 65 Pac. 255.)
The findings of fact sufficiently support the judgment which'was rendered, and it is therefore affirmed.
All the Justices concurring. | [
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