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The opinion of the court was delivered by
Schroeder, J.:
This is a workmen’s compensation case growing out of injury sustained by a construction worker. The district court adopted the findings and award of the commissioner which gave the claimant “7.57 compensable weeks temporary total disability, at the rate of $32 a week, in the sum of $242.24, of which amount $210.24” had been paid at the time of trial. The respondent and insurance carrier were ordered to pay the balance of $32.00 in one lump sum.
The case comes to this court on a notice of appeal reciting that the claimant appeals from the decision of the district court entered on the 25th day of February, 1958.
The underlying issue on the merits, if the appeal is here, is the extent of claimant’s disability.
The abstract consists of 14 pages made up of selected portions of verbatim testimony of various witnesses and includes the brief-memorandum opinion of the district judge. The brief, which consists of three and one-half pages of argument and a few citations, followed the abstract. There are no specifications of error and the brief contains no statement of the questions involved.
Appellees challenge the right of the appellant to be heard upon the following grounds:
1. Failure to comply with Supreme Court Rule No. 5 (see 177 Kan. xi; G. S. 1949, 60-3826, “Rules of the Supreme Court”) in two respects:
(a) Appellant’s abstract does not include a specification of errors complained of, separately set forth and numbered.
(b) Appellant’s abstract does not reproduce such portions of the record as it is necessary to read in order to arrive at a full understanding of the questions presented for review, so that no examination of the record itself need be made for that purpose.
2. Appellant’s brief does not comply with (a), (b) and (c) of paragraph (3) of Rule No. 6 of the Supreme Court.
A careful examination of the record as abstracted and the brief of the appellant disclose that each of the foregoing reasons is sound and requires a dismissal of this appeal.'
Failure to comply with Rule No. 5 of the Supreme Court, which requires that the abstract of the appellant shall include a specification of the errors complained of, separately set forth and numbered, has been before this court on numerous occasions. It is now established that an appeal will be dismissed unless there is compliance with this rule. (Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626; North American Finance Corporation v. Circle-B, Inc., 180 Kan. 34, 299 P. 2d 576, and cases cited in these opinions.) The foregoing cases undertake a complete discussion of this point and give the specific reasons for the rule. Further elaboration is unnecessary. These decisions control the disposition of this appeal.
This rule is now applicable in workmen’s compensation cases. (Ford v. Morrison, 182 Kan. 787, 324 P. 2d 140; and see Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P. 2d 463.) In fact, the opinion in Ford v. Morrison, supra, might well be adopted as the opinion here since the factual situation is almost identical.
Concerning noncompliance with Rule No. 6 (3) this court in Tri-State Hotel Co., Inc., v. Southwestern Bell Telephone Co., 155 Kan. 358, 125 P. 2d 728, said in paragraph 1 of the syllabus:
“Counsel for appellant should comply with rule 6 (3) of the court which requires a statement of the legal questions involved. To ignore the rule makes difficult the work of this court, also the work of counsel for appellee.”
Even if the appellant were here on his appeal, a decision on the merits of the case would be unavailing to him.
Appellant states in his brief: . . the disregard of Appellant’s testimony is a very flagrant case of abuse of not considering the evidence.” This is the only language indicative of the question appellant seeks to present. We interpret appellant’s position to be that the failure of the trial court to give weight to the testimony of the claimant and his wife was an abuse of discretion.
In substance the claimant and his wife testified that claimant’s injuries resulted in permanent partial disability. Dr. George E. Paine testified that he released the claimant to work on August 8, 1955, and also treated him “thereafter at a later date in December of that year, or possibly the following year, on a personal matter.” When the claimant was first examined by the doctor for the injuries covered by the workmen’s compensation act his condition was diagnosed as multiple fractures of the ninth, tenth, eleventh and twelfth right ribs; contusion of the right lower chest, the anterior aspect and lateral; and contusion of the right abdomen and flank with contusion of the right kidney with hemorrhage. After approximately ten days of hospitalization he was dismissed on June 18, 1955, and later on the 8th day of August, 1955, claimant was discharged. The doctor testified that at that time “I considered him recovered from his injuries with no disability.” At the time of claimant’s subsequent visit to the doctor he had no complaint of kidney ailment or discomfort from the ribs. He was complaining of his back which, after X-ray, disclosed he had some arthritis of the spine, claimant being approximately 63 years of age at that time.
The only conclusion to be drawn from the evidence presented in. the abstract and counter abstract is that there was competent evidence to support the findings of the district court that claimant failed to establish any permanent partial disability due to the accident of June 9, 1955. The law on this point is stated with clarity in Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259, as follows:
“Under G. S. 1949, 44-556, appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether the record contains any evidence which tends to support the judgment rendered, and in so considering, this court is required to view all testimony in the light most favorable to the prevailing party below. If when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed; being conscious at all times of the fact that this court has little concern with disputed questions of fact in ordinary lawsuits and none whatever in workmen’s com pensation cases, except to ascertain whether the record contains any evidence which on any theory of credence would justify the trial court’s finding or conclusion of fact . . (pp. 259, 260.)
See, also, cases cited in Hatchers Kansas Digest [Rev. Ed.], Workmen’s Compensation, § 153.
Appellant relies on Voiles v. Procter & Gamble Mfg. Co., 141 Kan. 451, 41 P. 2d 723, by quoting the following portion thereof:
“. . . The argument of respondent would mean the trial court was compelled to believe the evidence of the doctors who testified the condition of claimant was caused by the diseased teeth and tonsils. We cannot say that such is the law. At most, the evidence of the doctors was only an opinion. No one could state positively the disability of claimant came from the focal infection. On the other hand, the claimant testified the accident occurred, and that before that he was active, while after that he suffered and continued to suffer a disability. In view of such testimony we cannot say there was no evidence that plaintiff suffered disability from the accident. What has been said applies with equal force to the other subdivision set out above.” (pp. 452, 453.)
It is readily apparent from the opinion this court was there concerned with evidence tending to support the findings made by the trial court. The Voiles case simply holds that the trial court is not compelled to believe and accept the testimony of doctors who testify in a workmen’s compensation case where there is other testimony to the contrary.
Further answer to appellant’s argument on this point is found in Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70, a workmen’s compensation case. At page 629 of that opinion it was stated:
“There is another reason why this case must be reversed. The trial court, in effect, found preponderance of the evidence to be .against plaintiff, and yet rendered judgment in his favor. This was clearly erroneous. The decision should 'have been in accordance with the preponderance of the evidence. No other rule could be invoked with safety. Neither is it safe to disregard other evidence, and rely upon that of the claimant.”
It must be concluded that even had appellant properly presented his appeal to this court, the trial court did not err in the judgment it entered.
Appellant having failed to properly present his appeal in accordance with the rules of this court, the appeal should be and hereby is dismissed.
Wertz and Robb, JJ., concur in the result. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action, based upon breach of an implied warranty, to recover damages for personal injuries caused by drinking a part of a bottled beverage which contained a foreign substance. The basis of plaintiff’s action was that defendant in bottling and placing the beverage on the market for immediate human consumption impliedly warranted it was wholesome and fit for such purpose, and the contents of the bottle in question being unfit for human consumption, defendant thereby breached such implied warranty.
Defendant (appellant) alleged that at the time plaintiff (appel-lee) was drinking from the bottle of beverage he was also eating peanuts and but for his act or omission, or the act or omission of some person or persons other than defendant or its agents, the bottle of beverage from which plaintiff was drinking could not and would not have contained any foreign substance and could not and would not have produced any injury to plaintiff.
On the basis of the issues thus joined the case was tried to a jury which, in answer to the special questions submitted it by the court, found the bottle of Coca Cola contained a harmful foreign substance, that is, particles of a kola nut, when it was removed from the vending machine and at the time plaintiff drank from it, which was not there as a result of any act of plaintiff; that such substance was the sole, direct and proximate cause of plaintiff’s illness or aggravation of his pre-existent condition. The jury also returned a general verdict for plaintiff in the sum of $662.50, for which judgment was entered.
Defendant appeals from an order of the trial court overruling its demurrer to plaintiff’s evidence and from an order overruling its motion for a new trial.
Defendant first contends the trial court erred in overruling its demurrer to plaintiff’s evidence. The argument is that plaintiff failed to prove the breach of implied warranty in not showing the beverage was harmful, deleterious and unwholesome. Approaching this phase of the appeal we must bear in mind our constant holding that in considering the sufficiency of evidence tested by demurrer thereto, the evidence and every reasonable inference to be drawn therefrom must be liberally construed in favor of the party adducing it. Such evidence will not be weighed, even though there may be a conflict between the witnesses or in direct and cross-examination thereof. When so considered, if there is any evidence which sustains plaintiff’s case, then the demurrer should be overruled and the matter submitted to a jury. (Marshall v. Bailey, 183 Kan. 310, 314, 327 P. 2d 1034; Harvey v. Palmer, 179 Kan. 472, 477, 478, 296 P. 2d 1053; Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904; West’s Kansas Digest, Appeal & Error, § 927 [5], and Trial, § 156 [2], [3]; 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 488.)
An examination of plaintiff’s evidence discloses that on the morning in question he, having had no breakfast and having eaten nothing before and not eating anything at the time, was in the company of Mr. Smith and Mr. Girard in a garage in Arma, where he was handed an open bottle of Coca Cola from a dispensing machine by Mr. Smith about which he noticed nothing unusual, but on the third swallow he swallowed some foreign particle and there was something in his mouth which he “more or less flipped . . . back in the bottle” (he had by then consumed about one-half of its contents); whereupon, two minutes later he became ill and he and the other men “discussed it a little bit” and “looked in the bottle”; upon examination he found a substance “floating around the bottom of the bottle,” which appeared to be “a jelly substance like, of slimy like serum, mud or a bug or something”; he vomited and within five minutes vomited again, and thereafter went home. This condition continued that day and evening, when he called his doctor, who prescribed a medicine for his illness. His evidence further revealed he later picked up the half-empty bottle of cola from the garage and turned it over to his attorney.
Mr. Smith, operator of the garage, who had opened the bottle of Coca Cola, testified that as plaintiff took a drink from the bottle he spit something on the floor which was some of the substance Smith saw in the bottle; that there was “something in the bottle and he [plaintiff] did get a slug of it”; that “it was a jelly substance” and “looked a lot like a wad of matter . . . white matter,” that it was a stringy substance floating in the bottom of the bottle.
Mr. Heckert, a chemist, some two weeks later examined the liquid remaining in the bottle of Coca Cola and filtered off “some material floating in it,” which “appeared to be a nut of some kind,” covered by “a husk or some cellulose material,” and tentatively identified it as a kola nut, which comes out of the kola bean from which extract is normally made. He testified, “Kola nuts are rather rare around this part of the country. It is tropical fruit. We don’t know too much about it.” He also found that some fermentation had taken place “so there was a little, possibly yeast or something of that kind in the bottle.” His analysis report stated, “It would appear that any untoward effects produced by drinking this bottle of liquid were largely psychological.” He explained' “psychological” as distinguished from “actual toxics.”
Plaintiff’s physician, Doctor Lance, testified that in July, 1956, he had treated plaintiff for thrombosis hemorrhoid, which he “incised under local anaesthesia and removed a clot and treated him conservatively”; that from that day until the day in question he had treated plaintiff in no way for this ailment, nor had plaintiff complained of any difficulty therefrom. He testified further that plaintiff called him on January 29, 1957, stating “he had had a Coca-Cola to drink earlier and there was some type of foreign substance in it, and at the time he called me he was having abdominal cramping with nausea and diarrhea”; that on January 31 he saw plaintiff, who reported his vomiting had ceased but he was still suffering from the diarrhea, and complained of a pain in his rectum; upon examination, the doctor found plaintiff still had hemorrhoids which protruded outside, a condition which plaintiff reported occurred with each attack of diarrhea. The doctor advised plaintiff to continue taking the prescribed medicine, start sitz baths, take mineral oil and keep free from constipation. He next saw plaintiff August 1 and found him suffering from a massive prolapsis of the hemorrhoid, for which he advised hospitalization and surgery. In answer to counsel’s hypothetical question relating the cause and effect of plaintiff’s illness, the doctor testified the foreign substance in the cola “could have caused his findings and symptoms . . . the vomiting, abdominal cramps and hemorrhoid condition.” Further, on being questioned as to what he assumed comprised the foreign substance in the beverage, he testified plaintiff had told him he thought it was a bug; and on being asked if his answer was based on that assumption, the doctor replied, “It didn’t matter what was in it.” On being asked to assume the “foreign substance was a part of a cola bean,” the doctor replied that his answer to the question “would be the same.”
It may be stated as a general rule of this court that where beverage is manufactured and bottled for immediate human consumption and by a series of transactions reaches a retail dealer who sells to the consumer, the manufacturer or bottler impliedly warrants such beverage is wholesome and fit for immediate human consumption. Moreover, the manufacturer or bottler must know the beverage is' fit or take the consequences if it proves injurious. Where he places such bottled beverage in the hands of a dealer for sale, the manufacturer is responsible for damages to the consumer, who procures such beverage from the dealer and is injured by partaking of it. (Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P. 2d 633; Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan. 845, 308 P. 2d 150; and cases cited therein.)
Our decisions further hold that a manufacturer or bottler of food or beverage for human consumption is in effect an insurer that such food or drink will cause no harmful effects because of deleterious matter therein. The basis for imposing this liability is a matter of public policy for the protection of the people, as discussed in many of our cases. (Simmons v. Wichita Coca-Cola Bottling Co., supra; Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P. 2d 413.)
Webster’s New International Dictionary, Unabridged, Second Edition, defines “wholesome” as promoting mental health or well-being, or physical well-being, beneficial to the health or the preservation of health; “fit” as suitable; and “deleterious” as hurtful or destructive, injurious, detrimental.
We think when taking all the evidence together it was sufficient to justify the inference that plaintiff’s condition came from the substance he drank from the bottle. There was medical testimony that it aggravated his pre-existing condition, and the showing of symptoms shortly following the drinking of the beverage, which contained a foreign substance, was sufficient to take the case to the jury on the question of a causal connection. It is not necessary to produce a chemical analysis or medical testimony showing the beverage poisonous when the consumption thereof is followed by symptoms from which the simple, reasonable and common-sense inference could be drawn by the jury that plaintiff became sick and was nauseated and thereby injured, even though not seriously, as a direct result of drinking the beverage in question. This was an action for breach of warranty that the content of the bottle was pure, wholesome and suitable for consumption. The presence of any foreign body obnoxious to that purpose would amount to a breach of that warranty, which would permit recovery of some damages if injury resulted therefrom. A person drinking from a bottle of Coca Cola, which is presumably clear, pure, refreshing and wholesome, and suddenly finding his mouth full of “a jelly substance like, of slimy like serum, mud or a bug or something,” swallowing part of it but being able to spit some of it out, then looking into the bottle and finding the slimy substance, could very easily become ill and suffer from intense nausea which could produce illness requiring treatment by a physician, as was the case here. Whether the illness was produced by and resulted from emotional distress caused by ascertaining the presence of the slimy matter in the bottle is of no consequence, as defendant’s failure to keep this foreign matter out of the bottle was the cause of the emotional and psychological distress which directly resulted in the physical injury. Certainly, it cannot be said that such slimy substance is a normal thing to be found in Coca Cola and that it is conducive to the health and well-being of a person purchasing the beverage in the belief it is refreshing, nourishing and , wholesome. We are of the opinion that plaintiff’s evidence was sufficient to make out a prima facie case to be submitted to the jury for determination of the questions involved.
The defendant next contends it was error for the court to refuse to give certain of its requested instructions. We will not attempt to list the requested instructions and those given by the court. Suffice it to say, they have been examined and we believe the instructions given adequately covered the matter contained in the requested instructions which the court refused to give.
Defendant also contends it was error for the court to strike from its answer and exclude from evidence matters relating to the manufacturing and bottling processes carried out at defendant’s plant. This same matter was squarely presented in Simmons v. Wichita Coca-Cola Bottling Co., supra. In that case we held that in an action on implied warranty evidence of the method of manufacturing and bottling the beverage was not admissible. Hence, the court committed no error.
Defendant further contends the court committed error in denying its request that the jury view the manufacturing equipment. Such matters rest in the sound discretion of the trial court. (Sharp v. Coca Cola Bottling Co., supra:) We cannot say the court abused its discretion in this case.
We have thoroughly searched the record and find no error. The judgment of the trial court should be affirmed.
It is so ordered. | [
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The opinion of the court was delivered'by
Fatzer, J.:
Two appeals are before us arising out of proceedings upon a motion in a mortgage foreclosure action to set aside the judgment decreeing a foreclosure. In their motion appellants, Edgar Frank Allbritten and Ruby Alice Allbritten, his wife, alleged the district court was without jurisdiction to enter the judgment of foreclosure for the reason that certain nonresident defendants were not served with summons by publication in the manner prescribed by law, and that it erred in finding case No. 22134 (appeal No. 40,710) was merged into the judgment rendered in case No. 22703 (appeal No. 40,711). The motion was overruled and the Allbrittens have appealed.
The facts in these appeals are not in dispute.
With respect to appeal No. 40,710 the facts are summarized as follows: In July, 1955, the Allbrittens were stockholders in the K-Mo Parts, Inc., a Kansas corporation. To secure a loan of $12,500 to K-Mo Parts, Inc. they entered into a written guaranty agreement with National Acceptance Company of Chicago and also executed a note and second mortgage on their home in Johnson County, Kansas. Late in 1955 they commenced action No. 22134 in the •district court of Johnson County to cancel and set aside the note and second mortgage upon the ground that the $12,500 had not been delivered to K-Mo Parts, Inc. National Acceptance Company an swered and alleged an indebtedness of considerably more than $12,500, namely, $21,155.26. No reply was filed to that answer and the case stood on the docket until December 26, 1956, when the district court ruled that the action was merged in case No. 22703, and the judgment entered therein.
Pertinent facts of appeal No. 40,711 are as follows: On June 1, 1956, The Prudential Insurance Company of America commenced action No. 22703 in the district court of Johnson County against the Allbrittens to foreclose its first mortgage on their homestead. It joined as parties defendant with the Allbrittens the United States of America, the State of Kansas, the Eoard of County Commissioners of Johnson County, John H. Hodes, Jr., a resident of Kansas City, Missouri, and the following foreign corporations: National Acceptance Company of Chicago; Wichita Investment Corporation, Kansas City, Missouri; Traders National Bank, Kansas City, Missouri; American Bankers Insurance Company of Florida; Federal Enterprises, Inc., Kansas City, Missouri, and Commercial Credit Corporation, Kansas City, Missouri, who were all lien holders and/or judgment creditors of the Allbrittens.
Each of the Allbrittens, the United States of America, the state of Kansas and the Board of County Commissioners were duly and regularly notified of the pendency of the action by personal service of summons. Service of summons by publication was sought to be obtained upon the six foreign corporations and upon John H. Hodes, Jr. The affidavit for service by publication was in full compliance with the provisions of G. S. 1955 Supp. 60-2525. The notice of suit was published for three consecutive weeks in the Olathe Mirror, a weekly newspaper of general circulation in Johnson County, being first published August 2, 1956, and republished August 9, and August 16. The form of the notice of suit complied in all respects with the statute except the time fixed for the defendants to answer or plead otherwise to Prudential’s petition was September 8, 1956, which was thirty-seven days from August 2, instead of forty-one days as required by G. S. 1955 Supp. 60-2527. On November 8, 1956, the court examined the affidavit for service by publication, the published notice thereof and the proof of publication, and found that the six foreign corporations and John H. Hodes, Jr., were duly and regularly served with notice of the pendency of the action by publication service and entered its order approving such service.
National Acceptance Company entered its appearance and answered, and filed a cross-petition alleging its second mortgage on the homestead of the Allbrittens, and, after making the same allegations as contained in its answer to the Allbrittens’ petition in case No. 22134, prayed for the foreclosure of its second mortgage. The Allbrittens personally entered their appearance and filed an unverified general denial to Prudential’s petition, but they failed to answer or otherwise plead to the cross-petition of National Acceptance Company. The United State of America and the State of Kansas entered their appearance and each filed separate answers and cross-petitions for amounts due from the Allbrittens under their respective tax liens.
The other foreign corporations and John H. Hodes, Jr., did not answer or otherwise plead to Prudential’s petition or to National Acceptance Company’s cross-petition, nor did they otherwise appear in the action.
Prudential and National Acceptance Company each filed a motion for judgment on the pleadings and on November 20, 1956, during the September 1956 term, the district court entered its judgment foreclosing both the Prudential and National Acceptance Company mortgages and directed the property be sold to satisfy them.
On December 26, 1956, the Allbrittens filed a motion to vacate and set aside all proceedings in case No. 22703 including the judgment of November 20,1956, decreeing foreclosure of the mortgages. The motion alleged the district court was without jurisdiction to enter the judgment since the notice of suit failed to comply with G. S. 1955 Supp. 60-2527 in that it required the defendants to answer or plead otherwise to Prudential’s petition on or before September 8, 1956, a date thirty-seven days from the date the notice was first published, rather than forty-one days as required by the statute.
On the same day, case No. 22134 came on for hearing before the district court. The court found that the issues raised by the answer and cross-petition of National Acceptance Company in case No. 22703 were the same as those raised in its answer in case No. 22134, and inasmuch as the Allbrittens were served with summons in case No. 22703 and entered their appearance therein, but failed to answer or otherwise plead to the cross-petition of National Acceptance Company, that action was merged in case No. 22703, and it entered judgment accordingly. Appeal No. 40,710 is from that order.
On January 5, 1957, within the September 1956 term of the district court, the Allbrittens’ motion to vacate and set aside the judgment of foreclosure entered November 20, 1956, was overruled. Appeal No. 40,711 is from that order.
We first consider appeal No. 40,710. The appellee challenges the jurisdiction of this court to hear the appeal, contending it was not timely perfected. The point is well taken. Within the exception provided in G. S. 1957 Supp. 60-3314a, an appeal to the supreme court shall be perfected “within two months from the date of the judgment or order from which the appeal is taken.” (G. S. 1949, 60-3309.) (Emphasis supplied.) The time in which an appeal may be taken begins to run from the date the judgment or order is rendered, and not from the date the journal entry is filed. (Brower v. Sedgwick County Comm'rs, 142 Kan. 7, 45 P. 2d 835; Gates v. Gates, 160 Kan. 428, 435, 163 P. 2d 395.) A month is a measure of time and is one of the twelfth portions into which the year is divided. The word “month” has a clear and well-defined meaning, and refers to a particular time. Unless an intention to the contrary is expressed, it signifies a calendar month, regardless of the number of days it contains. (G. S. 1949, 77-201, Eleventh; Holton v. Bimrod, 8 Kan. App. 265, 267, 55 Pac. 505.) Where the word “month” as employed in a statute means calendar month, a period of a month or of months is to be computed not by counting days, but by looking at the calendar, and it runs from a given day in one month to a day of the corresponding number in the next or specified succeeding month. (Comm'rs of Smith Co. v. Labore, 37 Kan. 480, Syl. ¶ 2, 15 Pac. 577; 86 C. J. S., Time, § 10, pp. 837, 838; 52 Am. Jur., Time, § 11, pp. 336, 337.) The words “within two months” as used in G. S. 1949, 60-3309 are words of limitation and mean a litigant desiring to appeal must perfect his appeal not later than two months from the date of the judgment or order from which the appeal is taken. (Hubert v. Board of Public Utilities, 162 Kan. 205, 206, 174 P. 2d 1017; Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 264, 212 P. 2d 348.)
In this case, the record clearly shows the judgment or order appealed from was rendered December 26, 1956, and the appeal was not filed until February 27, 1957, which was two months and one day after the judgment was rendered. As noted, the statute allows only two months. Consequently, the appeal from the judgment or order of December 26, 1956, was too late (Comm'rs of Smith Co. v. Labore, supra; Hinshaw v. Hinshaw, 166 Kan. 481, 485, 203 P. 2d 201; Steinmeyer v. Barnett, 172 Kan. 215, 216, 239 P. 2d 827; Willey v. Gas Service Co., 177 Kan. 615, 616, 281 P. 2d 1092; Colyer v. Wood, 178 Kan. 5, 6, 283 P. 2d 398; Polzin v. National Cooperative Refinery Assn, 179 Kan. 670, 675, 298 P. 2d 333) and we have no jurisdiction (Eikelberger v. Saline County Comm’rs, 151 Kan. 619, 100 P. 2d 651; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531) to consider it.
We now turn to the principal question presented in appeal No. 40,711 — whether the service of summons by publication was void or only irregular and voidable. The Allbrittens contend the service was void, which vitiated the judgment as to all defendants. In making the contention, however, they concede the provisions of the civil code and all proceedings under it shall be liberally construed with a view of promoting its objects and assisting the parties in obtaining justice (G. S. 1949, 60-102).
Passing the question whether the Allbrittens may now object to the validity of the service upon the nonresident defendants, decisions of this court compel the conclusion the service was not void, but at most only irregular and voidable. (Mitchell v. Aten, 37 Kan. 33, 35, 14 Pac. 497; Smith v. Jukes, 112 Kan. 567, 570, 211 Pac. 1110; Young v. Newbold, 114 Kan. 86, 89, 217 Pac. 269; Foster v. Motley, 114 Kan. 812, 815, 220 Pac. 1036; Robinson v. Schappert, 120 Kan. 309, 243 Pac. 290; Elfert v. Elfert, 132 Kan. 218, 222, 294 Pac. 921.)
The notice of suit was properly published on the 2nd, 9th and 16th of August, 1956. The service of summons by publication was completed on August 16 (Mitchell v. Aten, supra; 72 C. J. S. Process, § 73, p. 1105) and advised the defendants of everything which the statute required the summons to contain. (Young v. Newbold, supra.) The only defect in the summons was that it lacked four days of giving the defendants the full forty-one days in which to answer. None of them appeared on the date fixed in the summons as the answer day nor did they appear on September 12, which would have been the forty-first day from the date of first publication, nor did they appear at any time. The only respect in which they could possibly have been prejudiced was the time in which they might answer, but no prejudice in this respect resulted since judgment was not rendered until November 20, 1956. There was ample time between the answer date fixed by the summons and the date judgment was entered for any of them to obtain leave to answer or additional time within which to plead. (Young v. Newbold, supra; Foster v. Motley, supra.)
In Foster v. Motley, supra, the affidavit for publication was regular but the notice for service by publication fixed the day for answer as a date earlier than the date of first publication, and the court held:
“A notice for service by publication upon a nonresident defendant cannot be regarded as void by reason of the fact that the day fixed for answer was earlier than the first publication of the notice.” (Syl. ¶ 3.)
Former Chief Justice Johnston prepared the opinion for the court, and said:
“It is contended that there was no action pending against the defendant by reason of the fact that the first publication notice named August 20, 1920, as the time for defendant to answer, a time which was six days before the notice was published, with the result of avoiding the garnishment process. The fixing of the time was a palpable irregularity but it cannot be regarded as a fatal defect. In a case where the summons served did not give defendant the statutory time for answer, it was held in response to a contention that the service was void that while the summons was irregular and voidable it was not void. It was said:
“ 'The only respect in which the defendant could possibly be prejudiced was in the time in which he might answer. He could have filed a motion asking for more time as readily as he could have filed a special appearance and motion to quash, and the court would have given it to him as a matter of course. The defect did not go to the jurisdiction of the court over the person of the defendant, nor render the summons void. At most it was only irregular and voidable.’ (Young v. Newbold, 114 Kan. 86, 217 Pac. 269).” (l. c. 815.)
The Foster case placed the matter of the answer day whether involving personal-service or service by publication, on the same premise. It supports the rule that jurisdiction of the person of the defendant is obtained when service of summons is completed by three consecutive publications (Mitchell v. Aten, supra; Smith v, Jukes, supra), and although the answer date is erroneously fixed in the summons, such defect does not go to the jurisdiction of the court over the person of the defendant nor render the summons void. At most, it is only irregular and voidable. (Young v. Newbold, supra.)
It follows that the error assigned on the ruling of the district court cannot be sustained; and in view of the fact that the nonresident defendants, except National Acceptance Company, made no appearance in the action either before the rendition of judgment or after, and have filed nothing under G. S. 1949, 60-2530 to show they had a meritorious defense to Prudential’s action or to National Acceptance Company’s cross-petition, there can be no fear that justice may have miscarried in this case.
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PlERRON, J.:
Ed Bozarth Chevrolet, Inc., (Bozarth) filed a replevin action against Chamita E. Black for return of a Chevrolet Venture Van. Black was not approved for financing and would not return the van. Black counterclaimed alleging breach of contract, fraud, and violations of federal law and the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. The trial court granted summary judgment in favor of Bozarth and ordered return of the van. The court denied summary judgment to Black on all her claims except for one alleged KCPA violation. This court granted leave for an interlocutory appeal.
For the most part, die parties do not dispute the facts in this case. On July 23, 2001, Black went to Bozarth to purchase a new van. She spoke with Morris James, a Bozarth salesman, about purchasing a 2001 Chevrolet Venture Van. Black testdrove the van and decided she wanted to purchase it. Black and James negotiated what type of financial commitment Black could afford. Ultimately, Black said she could afford a $500 down payment and that Bozarth would agree to finance the transaction for 60 months with a monthly payment of $469. Black testified that she repeatedly voiced her concern that she would probably not qualify for the special lower interest rate (.9%), which allowed for the $469 payment, because of her bad credit history.
After paying the $500 and filling out a credit application, Black was allowed to use the van to take her son to a baseball game and then return to complete the necessary paperwork. When Black returned to the dealership, she met with Al Gallegos, a business manager for Bozarth. Black signed multiple documents including a buyer s order, a retail installment sale contract, a vehicle ownership transfer agreement, a Kansas 30-day temporary permit, an agreement to provide accidental physical damage insurance, a “We Owe - You Owe” agreement, and a spot delivery agreement.
Black testified that when she left the dealership, she felt like the van was completely hers. She said that both James and Gallegos congratulated her on the new purchase, she had both sets of keys, she received free car wash certificates, and the van’s On-Star service was activated.
The day after the sale, July 24, 2001, Gallegos called Black.and told her GMAC did not approve her financing at the agreed terms. Gallegos said that GMAC would only approve the financing at a higher interest rate which equated to higher payments for Black. Both James and Gallegos called Black over the next several days trying to negotiate with her. After Black informed Gallegos that she would not be able to make the payments under the higher interest rate financing, he asked her to return the van and she refused.
Bozarth filed a replevin action seeking return of the van. The trial court conducted a hearing on possession of the van. The court found there was not a valid financing agreement and ordered Black to return the van to Bozarth in return for her $500 down payment. Black filed counterclaims against Bozarth alleging violations of the Federal Odometer Act, the Truth in Lending Act, and the Kansas Consumer Protection Act and for breach of contract and fraud.
The trial court decided the case on summary judgment and granted summary judgment to Bozarth on the replevin claim, finding there was not a completed sale of the van and that Bozarth was entitled to replevin. The court denied all of Black’s claims except for the issue of whether James and/or Gallegos told Black that her financing had been approved at the lower interest rate (.9%) as a violation of the KCPA. The trial court granted leave for an interlocutory appeal.
Black argues tire trial court failed to make findings of fact and conclusions of law in its memorandum decision as required by Kansas Supreme Court Rule 165 (2002 Kan. Ct. R. Annot. 200), K.S.A. 2002 Supp. 60-252(a), and K.S.A. 2002 Supp. 60-256(d).
Supreme Court Rule 165 provides that in contested matters submitted to a judge without a jury, the judge shall state the controlling facts required by K.S.A. 60-252 and the legal principles controlling the decision. The memorandum decision in this case is 16 pages long. Cf. Brown v. Wichita State University P.E.C., Inc., 217 Kan. 661, 538 P.2d 713 (1975) (court’s judgment was a one-sentence order). Black’s disagreement is with the judge’s statement that “[t]he statement of uncontroverted facts for this decision is adopted as set forth by the parties in their respective Memoranda in Support of Motions for Summary Judgment.” The judge then integrated all the necessary facts into his lengthy conclusions of law. Black did not object to the memorandum decision in the court below.
Meaningful appellate review is precluded where a trial court’s findings of fact and conclusions of law are inadequate to disclose the controlling facts or basis for the court’s findings. However, in the absence of any objection to the inadequacy of the trial court’s ruling, the reviewing court will presume the trial court found all facts necessary to support the judgment and an omission in findings will not be considered. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 378, 855 P.2d 929 (1993). In this case it is unnecessary to presume the trial court found all facts necessary to support the judgment because the court integrated the facts into its conclusions of law. See Blair Constr. Inc. v. McBeth, 273 Kan. 679, 688, 44 P.3d 1244 (2002). Black also failed to raise this issue in tire trial court and give the court the opportunity to correct its judgment.
Next, Black argues the trial judge refused to consider the disputed factual issues raised in this case. Rather, she contends the trial judge used his own personal car-buying experience instead of the facts in the case, manufactured his own set of facts based on his preconceived idea of resolving the case, and completely discounted her version of facts surrounding the execution of die documents and her belief that the sale was consummated, not conditional. Black argues the trial court invaded the province of the jury in making these factual conclusions.
The standard of review for a motion for summary judgment is well established:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Black argues the trial court presumed that she knew the sale of the car was conditioned upon third-party financing despite her testimony to the contrary and her testimony that she would not have taken possession of the car if informed of the conditional sale. She also states it was undisputed that she did not receive a copy of the spot delivery agreement when she left tire dealership and it was faxed to her 3 days after the sale. Black takes issue with several comments by the trial judge. First, at the summary judgment hearing, the trial judge made the general statement that
“it is also my personal experience in buying vehicles that that’s how you buy a new car. Unless you have die cash and a checkbook there for twenty thousand some odd dollars. That’s how I bought my last car. . . I bought my vehicle in Kansas City, Kansas so I know that at least spot delivery was how I bought my vehicle down there.”
Black contends the trial court also manufactured facts where there was no evidence presented on the issue. Black cites the court’s journal entry where the court commented on the amendments to the manufacturer’s statement of origin (MSO) statute, K.S.A. 2002 Supp. 8-135, extending the time for deliveiy of the MSO: “These amendments are consistent with time frames necessary to complete the conditions on the sale of a vehicle as motor vehicle purchases have become more complex and more commonly contingent.” The court stated: “[S]pot delivery agreements are a commonly recognized way to streamline the sales process creating a less burdensome transaction for the buyer and the seller.”
Bozarth argues the trial court’s finding that Black was aware that the sale of the van was conditioned on financing approval was based on the court’s examining of all the documents signed by Black. The court stated that Black knew the price of the van and that the money to pay for the van had to come from somewhere. Bozarth also states that the judge’s comments on his own car-buying experience were simply to get a better understanding of the spot delivery agreement used in this case and there is no mention of the judge’s car-buying experience in the court’s memorandum opinion. Bozarth states that the trial court was within its power of judicial notice in stating that motor vehicle purchases have become more complex and more commonly contingent, and that spot delivery streamlines the sales process. See K.S.A. 60-409(b)(3); In Re Estate of Carlson, 187 Kan. 543, 547, 358 P.2d 669 (1961) (court took judicial notice of the difficulties experience by small Kansas communities in securing medical doctors).
Black contends the spot delivery agreement purports to wreck an otherwise valid, consummated, and completed transaction, is ambiguous, is not referenced in any other document, does not evidence mutual assent, and provides unilateral rescinding power in Bozarth. Black argues the trial court gave undue weight to the spot deliveiy agreement in light of all the other documents that provided for a completed sale of the vehicle. Bozarth responds that when viewing all the documents of this transaction, it is clear that there was an offer by Black to purchase the vehicle from Bozarth, but the sale was not complete until financing was approved.
Black contends the spot delivery agreement contains unbargained for and unknown terms in a standardized agreement which are beyond the range of reasonable expectation of a Kansas car buyer. See Darner Motor Sales v. Universal Underwriters, 140 Ariz. 383, 391, 682 P.2d 388 (1984) (customers are bound by standardized agreements even without knowing the terms in detail, but not bound by unknown terms beyond the realm of reasonable expectations); Restatement (Second) of Contracts § 211 (1981).
■ The trial court found the terms of the spot delivery agreement were not beyond reasonable expectations and cited provisions of the Restatement (Second) of Contracts. Black argues:
“No Kansas consumer purchasing a new vehicle would expect that once all the paperwork was completed and signed (including a state approved form which states that the transaction is consummated and completed), the dealership’s finance manager told the consumer that their credit was approved, the salesman shook the consumer’s hand and congratulated them on the purchase of their new vehicle, the consumer took delivery of the vehicle, and the consumer drove the vehicle home under the authority of a Kansas temporary 30-day license permit, that the vehicle dealer would be able to telephone the consumer the next day and demand that the consumer agree to less favorable financing terms or the return of the purchased vehicle.”
We agree with the trial court’s characterization of the expectations in this case that a reasonable person who does not have the money to pay for a vehicle at the time of purchase would assume that a vehicle which is driven off the lot, contingent on financing approval, would have to be returned if the financing was not approved. The trial court stated it would be unreasonable to assume that if financing was not approved, the person in possession of the vehicle could keep it with no further obligation to pay. Further, Black knew tire extent of her own credit history and that it might be difficult for her to qualify for financing. It should have come as no surprise to Black that she was denied.
The trial court did not err in granting summary judgment. Like the trial court, we have examined tire totality of the evidence and the documents and contracts signed by Black and find the transaction was never consummated due to the inability of Bozarth to obtain financing at die agreed terms. A court may ascertain die existence and terms of an agreement from a combination of written instruments and the acts of the parties in connection therewith. Reznik v. McKee, Trustee, 216 Kan. 659, 673, 534 P.2d 243 (1975).
The primary rule in interpreting written contracts is to ascertain die intent of the parties. If the terms of die contract are clear, diere is no room for rules of construction, and the intent of the parties is determined from the contract itself. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998). The trial court granted summary judgment, finding there was no genuine issue as to any material fact concerning die execution of die documents and contracts. The spot delivery agreement made the sale conditional and references the financing conditions of die purchase. The spot delivery agreement is clear and unambiguous. “Unambiguous contracts are enforced according to their plain, general, and common meaning in order to ensure the intentions of die parties are enforced. [Citation omitted.] The intent of the parties is determined from die four comers of an unambiguous instrument, harmonizing the language therein if possible. [Citation omitted.]” Hall v. JFW, Inc., 20 Kan. App. 2d 845, 848, 893 P.2d 837 (1995). If financing is approved, the sale is consummated. If the financing is rejected, tiien Black is responsible for returning the van immediately to Bozarth.
We also find that Black has not set forth any evidence that the trial court based its decision on anything other than the contract evidence in the case or that genuine issues of fact material to tins decision still remain. See Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (A disputed question of fact which is immaterial to the issue does not preclude summary judgment.). While the judge commented on his own car-buying experience at the hearing, gave his perceived rationale why the MSO delivery time has been extended to 30 days in K.S.A. 2002 Supp. 8-135(c)(3), and suggested that the spot delivery agreement is a common way to streamline the sales process, there is no evidence that those comments directed his decision, prejudiced his decision one way or the other, or improperly invaded the province of the jury. See Mastin v. Kansas City Power & Light Co., 10 Kan. App. 2d 620, 706 P.2d 476 (1985) (quoting Fisher v. Shamberg, 624 F.2d 156, 162 [10th Cir. 1980]) (“ ‘[s]ummary judgment should not be used to prevent the necessary examination of conflicting testimony and credibility in the crucible of a trial'”).
Additionally, whether Black knew the sale of the car was conditioned upon third-party financing, she would not have taken possession of the car if informed of the conditional sale, or the undisputed evidence showed that she did not receive a copy of the spot delivery agreement until 3 days after the transaction, these do not create issues of material fact for the questions resolved on summary judgment. A party to a contract has a duty to read the contract before signing it, and the failure to read a contract does not make the contract less binding. Miner v. Farm Bur. Mut. Ins. Co., Inc., 17 Kan. App. 2d 598, 609, 841 P.2d 1093 (1992), rev. denied 252 Kan. 1092 (1993).
Next, Black argues the trial court erroneously interpreted K.S.A. 2002 Supp. 8-135(c)(3) and K.S.A. 8-2402 as they apply in this case.
“Interpretation of a statute is a question of law, and [an] appellate court’s review is unlimited.” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
K.S.A. 2002 Supp. 8-135(c)(3) provides in relevant part:
“Dealers shall execute, upon delivery to the purchaser of every new vehicle, a manufacturer’s statement of origin stating the liens and encumbrances thereon. Such statement of origin shall be delivered to the purchaser at the time of delivery of the vehicle or at a time agreed .upon by the parties, not to exceed 30 days, inclusive of weekends and holidays.”
Black states the 30-day period in K.S.A. 2002 Supp. 8-135(c)(3) facilitates the use of spot delivery agreements by car dealerships and the ability to “yo-yo” the consumer into higher financing. In the next breath, she argues the use of a spot delivery agreement violates K.S.A. 2002 Supp. 8-135(c)(3) because the Department of Revenue’s “Model Vehicle Ownership Transfer Agreement” says that a sale is “consummated and completed” on the date the form is executed and therefore a sale cannot be subject to any conditions. Black contends that by selling a vehicle and deliberately withholding the MSO from the purchaser, the dealer intentionally violates K.S.A. 2002 Supp. 8-135(c)(3).
Black cites multiple cases in support of her argument that while no Kansas cases have addressed a spot delivery agreement, they stand for the position that car dealers cannot engage in the conditional sale and delivery of motor vehicles without violating K.S.A. 2002 Supp. 8-135(c)(3): Melton v. Prickett, 203 Kan. 501, 456 P.2d 34 (1969); Wilcox Trailer Sales, Inc. v. Miller, 200 Kan. 315, 436 P.2d 860 (1968); Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P.2d 931 (1967); and General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 218 P.2d 181 (1950). None of the cases cited by Black are directly on point.
In Maryland, tire court found the parties’ transaction violated K.S.A. 8-135(c) since they agreed the title to the vehicle would not be passed until the promissory note was paid in full in contravention of the requirement in K.S.A. 8-135(c) that title be transferred on delivery of the vehicle. 199 Kan. at 380. The court in Melton reached a similar conclusion of violating K.S.A. 8-135(c) where the parties conditioned the sales contract that seller would retain the title to the vehicle until the buyer had made the first 30 payments of the contract. 203 Kan. at 509. In General Motors, Black relies on dicta where the court contemplated: “We need not discuss nor decide whether under the present motor vehicle act, it is possible for an individual, as distinguished from a dealer purchasing from a wholesaler, to execute a valid conditional sales contract on a motor vehicle.” 169 Kan at 224. We do not find General Motors persuasive—the language was dicta, and the law relied upon was that in effect in 1950.
In Wilcox, the court considered a sale of a mobile home where the dealer did not issue a bill of sale at the time of delivery. The Wilcox court struck down the sale as violating K.S.A. 8-135(c)(6). Black relies on language in the Wilcox decision where the court quoted part of the district court’s findings:
“ ‘K.S.A. 8-135(c)(5) and (6) makes it absolutely mandatory that when a motor vehicle is sold that a certificate of title pass from the seller to the buyer. It makes no exceptions for a conditional sale and, unlike the uniform law, there are no exceptions to the Kansas law. It says that such a sale as we have in this case is fraudulent and void.’ ” 200 Kan. at 318.
As the trial court correcdy explained, Wilcox is distinguishable and spot delivery agreements do not violate today’s version of K.S.A. 8-135. First, the quoted language'in Wilcox was from the lower court’s decision. Second, as with all the other authority cited by Black, K.S.A. 8-135(c), at the time of Wilcox, required transfer of title to the buyer at delivery and is different than the current version of K.S.A. 2002 Supp. 8-135(c)(3) which permits 30 days to deliver the MSO. Third, K.S.A. 2002 Supp. 8-126(n), the definition section of the Motor Vehicles Act, specifically recognizes the possibility of a conditional sale by defining “Owner” as a person
“who holds legal title of a vehicle, or in the event a vehicle is the subject of an agreement for the conditional sale thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee.”
Black further argues there is no legitimate business reason for a vehicle dealer to use a spot delivery agreement in the sale of a motor vehicle. She contends the agreement is either a deceptive sales technique to close a deal and ensure against buyer’s remorse while financing is being arranged or it is an overreaching sales technique to allow the dealership to “squeeze more profit out of the customer.” Black’s solution is for the dealership to tell the customer that it will not sell the vehicle until the financing is finalized and if the dealer wants to allow the customer to use the vehicle while financing is secured, it can put a dealer’s license plate on the vehicle. Black suggests that in her solution, no one is misled and it creates a fair and equitable bargaining environment.
Again, we agree with the trial court’s rationale. Black’s bailment hypothesis is basically no different than the spot delivery agreement and does not appear to. be any more efficient or effective. In both cases, if the financing is not approved, the buyer is required to return the vehicle. Spot delivery agreements serve the purpose of allowing the buyer to begin enjoying his or her new vehicle while waiting for financing approval. Vehicle buyers are not obligated to take the vehicle on a spot delivery agreement, and Black could very well have requested to pick up the van when financing was approved, particularly since she was already worried about her credit history spoiling the purchase. The court stated that spot delivery agreements are a “commonly recognized way to streamline the sales process creating a less burdensome transaction for the buyer and the seller.” We are unclear how Black’s proposed bailment system would be any less complicated, confusing, or misleading.
Black also argues spot delivery agreements frustrate the public policy set forth in K.S.A. 8-2402. Black contends spot delivery agreements are dishonest and frustrate a stable, efficient, enforceable, and verifiable method for the distribution of vehicles to consumers in Kansas. She cites Perry v. Goff Motors, Inc., 12 Kan. App. 2d 139, 141, 736 P.2d 949 (1987), where the court stated the courts should literally interpret and strictly enforce the statutory provisions to promote the public interests involved in the sale of motor vehicles.
K.S.A. 8-2402 provides in part:
“It is further declared to be the policy of this state to protect the public interest in the purchase and trade of vehicles, so as to insure protection against irresponsible vendors and dishonest or fraudulent sales practices and to assist, provide and secure a stable, efficient, enforceable and verifiable method for the distribution of vehicles to consumers in the state of Kansas and provide a system of tracking the flow of vehicles and their parts as well as preserving supporting services for consumers purchasing or otherwise acquiring vehicles.”
The trial court did not erroneously interpret either K.S.A. 2002 Supp. 8-135 or K.S.A. 8-2402. Spot delivery of a vehicle is not unfair, dishonest, or fraudulent per se. The court recognized that some dealers may unfairly or dishonestly use the spot delivery agreement, but that does not mean the system is in and of itself against public policy. Spot delivery does not violate K.S.A. 2002 Supp. 8-135(c)(3) nor is it inconsistent with the public policy concerns of K.S.A. 8-2402.
Last, Black argues Bozarth’s use of the spot delivery agreement was unconscionable and the trial court erred in granting summary judgment to the contrary.
The parties disagree on the standard of review for examination of a trial court’s determination of the unconscionability of a party’s actions. The court in State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 248-49, 62 P.3d 653 (2003), addressed the conflicting precedent on whether our review is either unlimited or deferential to the trial court’s discretion:
“Generally, whether an action is unconscionable under the KCPA is a question of law subject to unlimited review. However, the determination of unconscionability ultimately depends upon the facts in a given case. Thus, to a great extent, the determination is left to the sound discretion of the trial court to be determined on the peculiar circumstances of each case.”
Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
Black again raises the issue that the trial court decided disputed facts as a premise for its findings that Black drove the van off the dealership lot knowing the deal was contingent on financing approval. Black argues that if her testimony is believed and she did not know the sale was conditional, then the trial court’s holding falls apart because a reasonable person who is told he or she has been approved has no reason to believe he or she would be called upon to return to the dealership to sign another contract at a higher interest rate. Black states that a person who knows the sale is conditional would not be deceived into thinking the sale transaction was completed, would not take the vehicle home and become emotionally attached to it, would not proudly tell his or her friends and show them his or her new vehicle, and would not be in a worse bargaining position than before the transaction. Black states the end result of the spot delivery agreement, or yo-yo deal, is that she was forced into signing a new financing agreement at a higher interest rate or returning the vehicle and admitting to all of her family and friends that she could not be approved for financing because of her bad credit history.
In support of the unconscionable nature of the spot delivery agreement, Black cites Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 758-59, 549 P.2d 903 (1976), where the court identified 10 factors that should be considered in the determination of whether an act is unconscionable under the KCPA. Black relies on Wille factors (3), (5), (6), (8), and (10) in arguing that the spot delivery agreement is unconscionable and the peculiar use of that document in this case was unconscionable:
“(3) a denial of basic rights and remedies to a buyer of consumer goods ... (5) tire circumstances surrounding the execution of the contract ... (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract ... (8) an overall imbalance in the obligations and rights imposed by the bargain . . . (10) inequality of bargaining or economic power. [Citations omitted.]” 219 Kan. at 758-59.
Alternatively, Black relies on the court’s discussion of unconscionability in John Deere Leasing Co. v. Blubaugh, 636 F. Supp. 1569 (D. Kan. 1986), where the court distinguished between “procedural” and “substantive” unconscionability, while still considering the same factors enumerated by the Wille court. Procedural unconscionability occurs through a lack of knowledge and a lack of voluntariness. Substantive unconscionability is found when the terms of the contract are of such an oppressive nature as to be unconscionable. 636 F. Supp. at 1573 (citing Bank of Indiana, N.A. v. Holyfield, 476 F. Supp. 104, 109-10 [S.D. Miss. 1979]).
The trial court in this case found the spot delivery agreement to be a contract of adhesion, but not unconscionable. See Restatement (Second) of Contracts § 208, Reporter’s Note Comment a (1981) (It is to be emphasized that a contract of adhesion is not unconscionable per se, and that all unconscionable contracts are not contracts of adhesion.). An adhesion contract is a “[standardized contract form offered to consumers of goods and services on essentially Take it or leave it’ basis without affording consumer realistic opportunity to bargain and under such conditions that consumer cannot obtain desired product or services except by acquiescing in form contract.” Anderson v. Union Pacific R.R. Co., 14 Kan. App. 2d 342, 346, 790 P.2d 438 (1990) (citing Black’s Law Dictionary 38 [5th ed. 1979]). The trial court stated:
“It is clear, with disparity in bargaining power in this case and the ‘take it or leave it’ nature of the contract forms, that these form contracts are contracts of adhesion. However, because they are contracts of adhesion does not automatically make them unconscionable. The contracts in this case are not unconscionable. The terms of these contracts are not beyond reasonable expectations. Concerning the ‘Spot Delivery Agreement,’ a reasonable person would assume that a vehicle which they drove off the lot, contingent on financing approval, would have to be returned if the financing was not approved. It would be unreasonable to assume that if financing was not approved the person in possession of the vehicle could keep it with no further obligation to pay. Although the contracts in this case are contracts of adhesion, they are not unconscionable and therefore enforceable.”
Several cases from other jurisdictions have rejected arguments similar to those raised by Black in regard to spot delivery agreements.
In Castellana v. Conyers Toyota, 200 Ga. App. 161, 407 S.E.2d 64 (1991), Castellana signed virtually the same group of documents as in this case, including a spot delivery form. Castellana denied signing the spot delivery form, insisted that the signature on it was a forgery, and claimed the salesman told her that her credit was approved at the time she drove the car home. After financing fell through, Toyota repossessed the car and Castellana sued for conversion. The court found that numerous documents Castellana read and signed stated, without contradiction, that the credit application had not yet been approved and that the dealership could repossess the vehicle if the application was rejected. The court held the spot delivery form was enforceable, not contrary to public policy, and that Castellana failed to establish any unfair or deceptive practice by Toyota. 200 Ga. App. at 164-66.
In Dauti v. Harford Auto Plaza, LTD, 213 F. Supp. 2d 116 (D. Conn. 2002), a couple leased a used vehicle from Hartford. The couple gave a $3,000 down payment and signed a spot delivery sheet stating the dealership would release the car prior to third-party financing. The couple received a temporary registration, temporary license plate, and car insurance. After the couple’s credit was rejected, the dealer notified them that they needed an additional cosigner or to make an additional down payment. After the couple refused, the dealership repossessed the vehicle. The couple sued the dealership for violations of the Consumer Leasing Act and Connecticut law.
The couple in Dauti argued that the dealership engaged in a yo-yo sales transaction designed to deceive them into thinking they had a deal for the purpose of later renegotiating unfavorable terms. The couple confirmed that their signatures were on the delivery sheet, but they had no clear recollection of signing it probably because they were so excited about the car. The Dauti court held the spot delivery agreement was enforceable, tire couple had a duty to read the delivery sheet before signing it, and there was no contract to lease because the condition precedent was not satisfied. The court stated the couple could not avoid enforcement of the delivery sheet by arguing that they did not review it or receive an executed copy. 213 F. Supp. at 123-24. Cf. Pescia v. Auburn Ford-Lincoln Mercury Inc., 68 F. Supp. 2d 1269, 1287 (M.D. Ala. 1999) (absolutely no disclosure to the buyer that the contract she signed was not final, or that it could be changed at a later date and dealer had a duty to disclose the conditional sale; “based on the facts of cases discussing the issue, it appears that the custom in the industry is to disclose the contingent nature of ‘spot financing’ or ‘spot delivery’ contracts. The court has little trouble concluding . . . that [dealer] was required to inform the plaintiffs that the sale of the car to her was not final, was subject to approval [for financing] and that the terms and conditions of the final contract might be different from the contract which she signed. . . . [No] disclosures were made.”).
We find tire use of the spot delivery agreement in this case was not unconscionable.
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Green, J.:
Capital City Moving and Storage (Capital City) and its insurance carrier, Claim Indemnity Services, appeal from the decision of the Workers Compensation Board (Board) awarding permanent total disability compensation to James Nelson. The Board based its compensation award on both work-related injuries and Nelson’s preexisting mental condition. Capital City contends that the evidence did not support an award for permanent total disability. Capital City asserts that because there is no causal connection between Nelson’s preexisting mental condition and his work-related injuries, the condition is not compensable. We find that under K.S.A. 44-510c(a)(2), a mental condition is compensable only if it is causally connected to a work-related physical injury sustained by the claimant.
Nevertheless, Nelson argues that his preexisting mental condition is not a bar to permanent total disability under the odd-lot doctrine. This jurisdiction has been silent about whether we wish to adopt this doctrine. Even if we were to apply the odd-lot doctrine, however, Nelson fails to meet the test for permanent total disability. Therefore, we reverse the Board’s decision to award permanent total disability compensation and remand for an award under the permanent partial disability statute.
Facts
Nelson worked at Capital City for approximately 20 years performing such duties as driving trucks, moving furniture, packing and carrying freight, and loading and unloading trucks. In the course of his employment with Capital City, Nelson sustained several injuries to his back, neck, and shoulders, with his most recent injuries incurred during March 2001.
After this accident, Dr. Chris Fevurly placed Nelson on restricted work duties. Based on these restrictions, Capital City had enough work for Nelson only on a part-time basis. Although it is unclear from the record the amount of hours that Nelson worked under this arrangement, Nelson testified that he worked an average of 4-6 hours per week. During December 2001, Katherine Fischer, owner of Capital City, terminated Nelson for failure to contact the office for 2 weeks. At the regular hearing, Nelson testified that he called Capital City every day and that Fischer eventually told him that she would contact him when he was needed to work.
Nelson testified that after he was terminated from Capital City he searched for available jobs at the job service center. He stated that the available jobs were beyond his qualifications and that he would need to have vocational training. Nelson also testified that he made two oral inquiries for employment at Dillon’s and at Capital City Cab. He was not working at the time of the hearing.
The evidence introduced at the regular hearing indicated that Nelson was functioning at a low intellectual level. In particular, Nelson testified that he graduated from high school in special education classes. He further testified that his reading and writing skills were limited. The parties stipulated to a report by Dr. Melvin Berg which stated that Nelson was in the borderline range of intellectual ability and that his abilities were extremely limited. The report noted that Nelson’s efforts at performing tasks could deteriorate quickly as he becomes anxious, dismayed, and humiliated. Dr. Berg’s report concluded that Nelson was “only capable of performing the most simple and routine tasks, which involve limited problem solving.”
In addition to Dr. Berg’s report, three other reports from medical doctors who examined Nelson, Dr. Fevurly, Dr. Peter Bieri, and Dr. Daniel Downs, were admitted into evidence. These reports only evaluated Nelson’s physical injuries and, therefore, made no conclusions pertaining to his mental condition.
Dr. Fevurly, who was Nelson’s treating physician, diagnosed Nelson with a left shoulder rotator cuff tear and neck and back injuries. He determined that Nelson had reached maximum medical improvement and that he suffered a 16% whole person impairment. Fevurly further testified that Nelson could perform 8 of the 9 central job tasks that he had performed in the last 15 years. This translated to an 11% task loss. Fevurly restricted Nelson’s lifting so that he could occasionally lift 30-40 pounds, frequently lift 20-30 pounds, and repetitively lift up to 10 pounds. In addition, Dr. Fevurly indicated that Nelson would be unlikely to tolerate prolonged overhead work or hfting with his left arm and would need to avoid prolonged or nonstop bending and stooping. He also recommended that Nelson be allowed to alternate between sitting and standing as needed for pain control.
When asked about Dr. Berg’s report, Fevurly testified that his assessment of Nelson’s cognitive circumstances was consistent with that of Dr. Berg but that he did not completely agree that Nelson was unemployable. Fevurly stated that Nelson could still do some light to medium level work as compared to sedentary and cognitive skill work.
Similar to Dr. Fevurly’s restrictions, Dr. Bieri recommended that Nelson avoid frequent bending, stooping, reaching, and handling. He limited Nelson’s hfting to occasional hfting of 20 pounds, frequent hfting of 10 pounds, and “negligible constant hfting.” Dr. Bieri testified that Nelson suffered a 22% whole person impairment and placed him in the light physical demand level. In addition to the back, neck, and shoulder injuries, Dr. Bieri diagnosed Nelson with entrapment neuropathy. Dr. Bieri also found that Nelson was unable to perform four out of the nine essential tasks and, therefore, rated his task loss at 44%. Dr. Bieri, however, did not rate and made no conclusions on Nelson’s mental disability.
Dr. Downs, the court-appointed medical examiner, did not testily but his report indicated that Nelson suffered from cervical myofacial strain. He disagreed with the diagnosis of carpal tunnel syndrome. Dr. Downs indicated that he also disagreed with Nelson’s diagnosis of left shoulder rotator cuff tear but would be willing to amend his report after he saw the studies for this injury. Dr. Downs gave Nelson a 5% functional impairment rating and restricted Nelson’s hfting to occasional lifting of up to 40 pounds and frequent hfting of up to 20 pounds. Dr. Downs also found that Nelson could perform all of his central job tasks except loading and unloading the truck.
Additional evidence relating to Nelson’s intellectual abilities came from Bud Langston, the vocational rehabilitation consultant. Langston submitted two reports and also testified during the hearing. His first report concluded that although Nelson’s work duties were restricted, Nelson could maintain his employment. After learning that Nelson had been terminated from Capital City and after reviewing reports from Dr. Fevurly and Dr. Berg, Langston issued a second report. Based upon Nelson’s mental disabilities and his physical restrictions, Langston opined that Nelson was going to be an unsuccessful employment placement to any setting where he could earn wages. He concluded:
“His vocation prognosis is very guarded and unless there is either an improvement in his physical condition or he’s able to concentrate, retain new learned procedures, and control his anxiety and frustration, Mr. Nelson could be permanently and totally unable to engage in any occupation currently described in the national economy.”
Capital City objected during the testimony of Langston and Dr. Bieri to any reference to Dr. Berg’s report as hearsay testimony.
After considering Nelson’s physical injuries and mental limitations, the ALJ concluded that Nelson was permanently and physically disabled. Capital City appealed the ALJ’s decision to the board. In a 2-1 decision, the Board affirmed the ALJ’s ruling and concluded:
“Placing greater weight on tire opinions given by the treating physician, Dr. Fevurly, and by claimant’s vocational expert, Mr. Langston, the Board finds claimant to be permanently and totally disabled due to the combination of his work-related injuries and his preexisting mental condition. Once claimant’s work-related injuries resulted in his being given permanent restrictions, his available labor market dwindled to almost nothing. Taking into consideration his education, experience and capacity for retraining, claimant is realistically unemployable.”
The dissenting Board member determined that Nelson was not permanently and totally disabled and stated:
“The liberal finding by the majority in this opinion is contradicted by the evidence. It does not fit the statutory definition of K.S.A. 44-510c and comes no where near the permanent total standard set in Wardlow [v. ANR Freight Systems, 19 Kan. App. 2d 110, 872 P.2d 299 (1993)].”
The Board member concluded that Nelson should be awarded workers compensation for a permanent partial disability using the task loss opinions of the medical doctors and an imputed wage.
Preexisting Mental Condition
Capital City argues that the medical evidence and expert testimony in this case do not support a finding of permanent total disability. Capital City contends that under workers compensation law preexisting conditions are not compensable unless the condition is causally connected to the work-related injuries. The Board based Nelson’s award on both physical injuries and a preexisting mental condition. Capital City argues that Nelson’s preexisting mental condition was not compensable because there was no causal connection between his physical injuries and his mental condition.
On the other hand, Nelson argues that the Board’s ruling was correct and supported by the evidence. Nelson contends that the facts of his case are quite similar to those in Wardlow v. ANR Freight Systems, 19 Kan. App. 2d 110, 872 P.2d 299 (1993), in which this court affirmed the Board’s award of permanent total disability compensation. In addition, Nelson cites to the odd-lot doctrine as authority for the Board’s decision.
The issue raised by Capital City requires us to interpret K.S.A. 44-510c(a)(2) and determine whether it was proper for the Board to base its award in part on Nelson’s preexisting mental condition. Issues involving interpretation of statutory provisions are questions of law over which appellate courts have unlimited review. While an appellate court gives deference to the Board’s interpretation of the law, if such interpretation is interpreted or applied erroneously, the court may grant relief. Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666 (2001).
K.S.A. 44-510c(a)(2) defines permanent total disability and provides:
“Permanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. Loss of both eyes, both arms, both feet, or both legs, or any combination thereof, in the absence of proof to the contrary, shall constitute a permanent total disability. Substantially total paralysis, or incurable imbecility or insanity, resulting from injury independent of all other causes, shall constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts.” (Emphasis added.)
Under this statute, a worker who has suffered a work-related injury is entitled to permanent total disability benefits only when it is impossible for him or her to engage in any type of substantial and gainful employment. The Board found that Nelson was permanently and totally disabled due to the combination of his physical injuries and his preexisting mental condition. The third sentence of K.S.A. 44-510c(a)(2) directly addresses compensation for mental disorders and requires a causal connection between the mental problem and the work-related injury.
The Board, however, relied on the fourth sentence of K.S.A. 44-510c(a)(2). This is a general provision and does not specifically address compensation for mental conditions. Nevertheless, if the fourth sentence is construed so as to not require a causal link between a mental condition and a work-related injury, the mental condition part of the third sentence would become meaningless. A statute should be read so as to give effect to the whole statute. As a result, no part of tire statute is to be treated as surplusage. KPERS v. Reimer & Koger Assocs, Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
Moreover, our case law requires a causal link between the mental problem and the injury in order to find it compensable. For example, our Supreme Court in Hayes v. Garvey Drilling Co., 188 Kan. 179, 360 P.2d 889 (1961), determined that a permanent total disability award could be based on a mental condition that was connected to the employee’s work-related injuries. In that case, Hayes sustained serious physical injuries in a work-related accident and also suffered from traumatic neurosis. The district court found that Hayes was permanently and totally disabled as the result of his neurosis. Although there was evidence that Hayes was predisposed to traumatic neurosis, the district court concluded that this information was immaterial as the accident was the cause of his nervous symptoms. Our Supreme Court upheld the district court’s decision. In finding that Hayes could be compensated for his mental problem, our Supreme Court stated that when a work-related accident aggravates or accelerates an existing disease, the claimant should not be denied compensation merely because of such preexisting condition. 188 Kan. at 184.
This court and our Supreme Court have continued to follow the reasoning in Hayes when deciding subsequent cases that involve compensation for a mental condition. In Boutwell v. Domino’s Pizza, 25 Kan. App. 2d 110, Syl. ¶ 3, 959 P.2d 469 (1998), the claimant was attacked and stabbed in an attempted robbeiy while he was delivering pizzas at an apartment complex. As a result of the attack, Boutwell sustained physical injuries and also developed posttraumatic stress disorder. Although Boutwell had a preexisting mental disorder, the Board found that the attack had aggravated Boutwell’s mental problem and awarded permanent total disability compensation. This court affirmed the award of permanent total disability compensation. We stated that traumatic neurosis is compensable if it results from a covered physical injury and meets the other requirements of the Workers Compensation Act. 25 Kan. App. 2d at 120.
Consistent with this reasoning, our Supreme Court in Followill v. Emerson Electric Co., 234 Kan. 791, 796, 674 P.2d 1050 (1984), determined that claimant’s mental disorder was not compensable under the Workers Compensation Act because it did not stem from any physical injuries suffered by the claimant. In that case, the claimant arrived at a machine moments after his coworker’s head was crushed in a die cast press. After seeing his coworker’s injury, Followill experienced posttraumatic stress disorder. Although the district court awarded compensation to Followill for his mental disorder, our Supreme Court reversed this decision. In finding that Followill’s mental problem was not compensable, our Supreme Court stated:
“We hold, in accordance with an unbroken line of worker’s compensation cases in this state, that the obligation of an employer under K.S.A. 44-501 et seq. does not extend to mental disorders or injuries unless the mental problems stem from an actual physical injury to the claimant. To extend the obligation to include mental disorders, absent physical injury, is a matter for consideration by the legislature.” 234 Kan. at 796.
From these cases, we conclude that a mental condition is compensable under the Workers Compensation Act only if it has a causal connection to the claimant’s work-related physical injuries. Although these cases involve claimants who suffer from mental problems which are different in character from those of Nelson, the issue in those cases is similar to the issue here—whether compensation can be awarded for a mental condition. Applying the above reasoning here, we find that under the fourth sentence of K.S.A. 44-510c(a)(2) total disability compensation can be based on Nelson’s mental condition only if the condition was causally connected to his physical injuries.
There was no evidence presented to the-Board that Nelson’s preexisting mental condition was causally connected to his work-related physical injuries. In fact, the evidence indicated that this condition was present throughout his life and posed limitations on other areas of his life as well. For example, Nelson testified that he had attended special education classes in high school and that his reading and writing skills were limited. Nelson also presented reports which revealed that he intellectually functioned at a low level from an early age. Although Langston testified that Nelson’s limited abilities restricted his employment prospects, this testimony and the medical testimony did not establish that Nelson’s preexisting mental condition was causally connected to his work-related physical injuries.
Distinguishing Wardlow v. ANR Freight Systems
Nelson points to Wardlow v. ANR Freight Systems, 19 Kan. App. 2d 110, as authority for the Board’s decision. In that case, Wardlow sustained severe injuries to his back, pelvis, hip, and leg after he was run over by a high-low machine. After Wardlow underwent three surgeries and several months of rehabilitation, he still had internal screws in his pelvic area, had a 10-inch plate and screws attached to his leg, and was provided with a plastic brace to support his foot. One of the doctors testified that Wardlow was essentially unemployable because of his restricted work duties. The independent medical examiner, who was appointed by the trial court, stated that Wardlow was probably not employable by virtue of his age and his reliance on physical labor-type jobs. The evidence revealed that Wardlow was 63 years old and had been employed by the same company for 24Vz years at the time of his injury.
The trial court determined drat Wardlow was permanently and totally disabled based on the totality of the circumstances. The trial court looked at Wardlow’s serious and permanent injuries, the findings of the two medical doctors, the extremely limited physical chores that Wardlow could perform, his age, his lack of training, driving and transportation problems, past history of physical labor jobs, being in constant pain, and constantly having to change body positions. This court determined that there was substantial competent evidence to support the trial court’s ruling. 19 Kan. App. 2d at 113-15. We noted that where the examining physicians concluded that Wardlow was essentially unemployable and the vocational experts determined that it would be difficult for Wardlow to obtain any type of employment due to his age and physical restrictions, this provided a substantial basis of fact “from which the trial court could reasonably find the workman was completely and permanently incapable of engaging in any type of substantial and gainful employment under K.S.A. 1992 Supp. 44-510c(a)(2).” 19 Kan. App. 2d 110, Syl. ¶ 5.
We find Wardlow to be distinguishable from the case at hand. First, the trial court in Wardlow did not award compensation for a preexisting disability. Instead, the trial court considered Wardlow’s age and lack of training as only one of the factors in a totality of circumstances analysis. Second, the medical testimony and expert testimony in Wardlow supported the permanent total disability award. In fact, one of the examining doctors testified that Wardlow’s physical work restrictions rendered him essentially unemployable. Contrastingly, the medical testimony from all of Nelson’s examining doctors regarding his physical injuries established that he had the ability to perform some physical work. Dr. Fevurly, whose testimony was relied on by the Board, stated that Nelson could perform some light to medium level physical work as compared to strictly cognitive and sedentary work. Based on these differences, the decision in Wardlow does not support the Board’s award.
Odd-Lot Doctrine
Nelson cites the odd-lot doctrine to establish that his preexisting mental condition is not a bar to permanent total disability under K.S.A. 44-510c(a)(2). In Lee v. Minneapolis Street Railway Co., 230 Minn. 315, 317, 41 N.W.2d 433 (1950), the court in defining an odd-lot employee stated that he must be “so injured that he can perform no services other than those so limited in quality, dependability, or quantity that a reasonably stable market for [him] does not exist.” In those jurisdictions that have adopted this doctrine, the extent of the employee’s physical impairment along with his or her mental capacity, work experience, education, training, age, and the availability of suitable work must be considered. See 82 Am. Jur. 2d, Workers’ Compensation § 381; Patterson v. Arkansas Dept. of Health, 343 Ark. 255, 265, 33 S.W.3d 151 (2000). If, after considering these various factors, it is determined that the employee is an odd-lot employee, he or she is considered totally disabled.
This jurisdiction, however, has been silent about whether we wish to adopt the odd-lot doctrine. Nevertheless, for the sake of argument, let us assume that Kansas would adopt this doctrine. In reviewing disputed issues of fact, our review is limited to determining whether the Board’s findings of fact are supported by substantial competent evidence. Substantial evidence possesses something of substance and relevant consequence and carries with it a fitness to induce conviction that the award is proper, or furnishes a substantial basis of fact from which the issue can be reasonably resolved. When reviewing the Board’s decision, we do not reweigh the evidence or determine the credibility of witnesses. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 191-92, 62 P.3d 236 (2003).
Based on the evidence presented to the Board, Nelson has failed to show that he is an odd-lot employee. Even with his physical restrictions and mental limitations, Nelson possessed several marketable skills which could be used to obtain employment. Perhaps Nelson’s most important asset was his Commercial Class A driver’s license which allowed him to drive heavy vehicles, such as 18-wheel trucks, and vehicles with more than 16 passengers. See K.S.A. 8-234b. Significant to Nelson’s ability to use this license, all of the examining doctors determined that Nelson could still perform the essential job task of driving a truck. In addition, Dr. Bieri, whose testimony was most favorable to Nelson, determined that Nelson could still map a route and chéck the schedule; inspect a truck’s fluid, lights, and brakes; operate a forklift; and clean and pack shoes. Dr. Fevurly, whose testimony was relied upon by the Board, testified that Nelson could also clean the warehouse and check supplies. Furthermore, the medical testimony showed that Nelson had the ability to perform other physical tasks. In particular, Dr. Bieri placed Nelson in the light physical demand level, and Dr. Fevurly stated that Nelson could perform some light to medium level work. As a result, the medical testimony in this case did not establish that Nelson was incapable of engaging in any substantial and gainful employment.
Although Langston concluded in his second report that Nelson was going to be an unsuccessful employment placement, his deposition testimony indicated otherwise. Langston testified that he would go forward with job placement efforts for Nelson. Although his report recommended that Nelson contact the Topeka Association for Retarded Citizens for piecework, Langston testified that he would not limit Nelson’s job search to those types of entities. Instead, Langston just suggested that this would be a place to start.
Furthermore, when Langston wrote his second report, he' did not have any medical reports which set forth Nelson’s permanent limitations. In this second report, Langston stated: “In discussing the assistance that I might provide for Mr. Nelson currently in his job search, I still note a lack of concrete physical hmitations by which to guide any such job search.” Although Langston received the medical reports before his deposition, he did not evaluate the jobs Nelson might be able to perform. For instance, Langston did not consider the various jobs in which Nelson might be able to use his Commercial Class A driver’s license or his ability to operate a forklift. As a result, Langston’s,reports and testimony did not adequately establish that Nelson was permanently and totally disabled. See Guyton v. Irving Jensen Co., 373 N.W.2d 101, 106 (Iowa 1985) (Under the odd-lot doctrine, a claimant has the burden of establishing a prima facie case of total disability by producing substantial evidence that he is not employable in the labor market.).
After reviewing the evidence presented to the Board, we determine that there was no substantial competent evidence to find that Nelson was permanently and totally disabled. “Permanent total disability exists when the employee, on account of the injury, . . . [is] incapable of engaging in any type of substantial and gainful employment.” (Emphasis added.) K.S.A. 44-510c(a)(2). This statute requires permanent total disability benefits to be paid to a worker who has suffered a work-related injury only when it is impossible for him or her to engage in any type of substantial and gainful employment. Even with Nelson’s physical impairment and his preexisting mental condition, Nelson still retains substantial earning capacity and does not meet the standard of permanent total disability. Because Nelson can earn income after his injury, he should be limited to benefits under the permanent partial disability statute.
Capital City raises several additional arguments that are unnecessary for this court to address. Specifically, Capital City contends that Nelson’s injuries do not rise to the level of severity contemplated by K.S.A. 44-510c(a)(2), that physician testimony was necessary to find Nelson suffered a permanent and total disability, and that Dr. Berg’s report was not competent evidence which could be used by Langston. Because we have decided that the Board should not have awarded compensation for a permanent total disability, it is unnecessary to address these remaining arguments.
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Johnson, J.:
Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau) appeals the summary judgment granted to defendants Johnson and Hershewe & Gulick, P.C. (hereafter collectively referred to as “Johnson”). Farm Bureau complains that the district court incorrectly ruled that it could not sue Johnson for conversion based upon Johnson’s settling of his client’s personal injury action against the tortfeasor and distributing the settlement proceeds without paying Farm Bureau’s claimed lien for personal injury protection (PIP) benefits. Finding an action for conversion will not he under the facts of this case, we affirm.
The underlying facts are largely undisputed. Marvin and Shirley Oerke operate Oerke Farms (collectively “Oerkes”); Richard A. Carmody was their employee. On June 10, 1999, Steven E. Forehand suffered severe, permanent, and disabling injuries in an automobile accident caused by the negligence of Carmody, who was driving a tractor-trailer rig within the scope of his employment with the Oerkes. The Oerkes were insured by Northland Insurance Company (Northland). Steven Forehand was insured by Farm Bureau.
Patricia Forehand is Steven’s spouse, as well as his conservator. The Forehands retained Johnson to represent them in their personal injury claims. Johnson notified Farm Bureau that the Forehands had a claim for personal injury protection benefits. Farm Bureau paid the Forehands $7,942.80 for collision damage to their vehicle, $320 for car rental fees, and PIP benefits in the amount of $16,530.37. Apparently, the collision claim was paid prior to Johnson’s employment. Farm Bureau never advised Johnson that it intended to make a PIP reimbursement claim against the Forehands and did not request that Johnson protect Farm Bureau’s PIP hen.
On November 17, 1999, the Forehands filed a petition in Jackson County, Missouri, naming Carmody, the Oerkes, and the manufacturer of the. Oerkes’ trailer as defendants. In March 2000, Northland agreed to settle the case for $1 million. On March 3, 2000, the Missouri court entered a Judgment and Order, in which it refers to Carmody, the Oerkes, and Oerke Farms as “the Oerke defendants,” and whereby it ordered, adjudged, and decreed:
“a. That the settlement of plaintiffs’ claims and causes of action against the Oerke defendants only is hereby approved.
“b. That the proposed apportionment of the settlement proceeds of $250,000 to Patricia A. Forehand individually and as spouse of Steven E. Forehand and $750,000 to Patricia A. Forehand as Conservator of the Estate of Steven E. Forehand is fair and equitable under the circumstances and is approved.
“c. That Patricia A. Forehand, individually and as Conservator of the Estate of Steven E. Forehand, is ordered and directed to acknowledge receipt of the settlement proceeds in writing with this Court and to execute releases to the Oerke defendants releasing and discharging the Oerke defendants only from any and all liability to Patricia A. Forehand and Steven E. Forehand on account of the occurrence of June 10,1999.
“d. That Patricia A. Forehand is directed to reimburse her attorneys for litigation expenses in the amount of $25,000 and to pay said attorneys their contingent fee in the amount of $325,000.
“e. That Patricia A. Forehand is directed to file a copy of this Judgment and Order with the Probate Court of Crawford County, Kansas, and to deposit the net settlement proceeds paid to her as Conservator of the Estate of Steven E. Forehand as directed by the Probate Court of Crawford County, Kansas, subject to the further Orders of said Probate Court.
“f. That Patricia A. Forehand, through her attorney, is directed to file evidence with this Court that said filings have been made in the Probate Court of Crawford County, Kansas.
“g. That Patricia A. Forehand is directed to dismiss this lawsuit with prejudice against the Oerke defendants only with each party bearing their own costs.”
Checks totaling $1 million were delivered to Johnson and deposited in the firm’s client trust account. After the checks cleared, Johnson disbursed the settlement proceeds as directed by the court order. The court order made no provision for reimbursing Farm Bureau for its payments to its insured under either the Forehands’ collision or PIP coverage. Apparently, Farm Bureau was unaware of the Missouri lawsuit, because it took no action to intervene to enforce its PIP lien.
Approximately a year after settlement, Farm Bureau’s attorney demanded money from Johnson, threatening a lawsuit for conversion if he failed to comply with the demand. Johnson discussed the letter with the law firm, and the firm notified its insurance carrier of a threatened lawsuit.
In May 2001, Farm Bureau filed suit against Carmody, Oerke Farms, Johnson, his law firm, and Northland, claiming $24,793.17 to reimburse the monies it had paid for collision damage ($7,942.80), for rental car fees ($320), and for PIP benefits ($16,530.37). The petition was amended twice, the last of which named the following additional defendants: Marvin Oerke, Shirley Oerke, Patricia Forehand, Patricia Forehand as conservator of the Estate of Steven E. Forehand, and Steven E. Forehand. Farm Bureau alleged that all of the defendants were liable for conversion. Additionally, the petition appears to suggest a claim against Carmody, Oerkes, and Northland on a subrogated negligence theory. In addition to suing its own insured for conversion, Farm Bureau alleged that the Forehands breached the insurance contract by failing to pay Farm Bureau’s subrogation interest.
The trial court considered various summary judgment motions and found, inter alia, that: (1) Northland’s settlement proceeds were duplicative of Farm Bureau’s PIP benefit payments, entitling Farm Bureau to reimbursement; (2) Kansas law applied, notwithstanding the action was filed in Missouri; and (3) the mere failure to pay money cannot be the basis for the tort of conversion. The court granted the defendants’ summary judgment on the conversion claims. Finding that the only claim against Johnson and his law firm was based on conversion, the court dismissed them from the lawsuit. Farm Bureau appealed this decision on August 1,2002.
The litigation continued on the remaining issues, as evidenced by additions to the record on this appeal. At a November 12,2002, hearing, the district court found that no dispute remained as to liability, causation, or damages and, accordingly, granted Farm Bureau summary judgment on its subrogation claims against Carmody, the Oerkes, and Northland for the amounts paid to tire Forehands for collision damage ($7,942.80), rental fees ($320), and PIP benefits ($16,528.78). The court declared that Farm Bureau was entitled to prejudgment interest on the $24,793.17, at the rate of 10% from March 1, 2000. The court specified that its judgment did not resolve Farm Bureau’s claims against the Forehands and directed Farm Bureau to advise whether it intended to pursue those claims.
The journal entry of the hearing was filed January 16, 2003. We do not know all of what transpired after the November 12 hearing, except that the record contains a January 27, 2003, letter from the Forehands’ attorney to the clerk of the district court, which recited that the enclosed $31,941.10 check from Patricia A. Forehand represented full satisfaction of the judgment entered in the case, including interest. Apparently, Mrs. Forehand had some difficulty in getting her insurance company to accept one or more of her tendered checks because Farm Bureau demanded more interest. Eventually, Farm Bureau received $32,070.06 from its insured through the court clerk.
MOOTNESS
Johnson argues that because Farm Bureau has received all the monies it paid to its insured, together with interest thereon, its claims have been fully satisfied and this appeal is moot. Farm Bureau appears to make two arguments as to why its claims against Johnson are not moot: (1) Farm Bureau’s damages arising from the tortfeasors’ negligence are not the same as Farm Bureau’s damages arising from Johnson’s conversion; and (2) Farm Bureau still has the possibility of amending its petition to allege punitive damages.
Farm Bureau’s first argument is absurd. In its petition, Farm Bureau’s sole allegation of damages was for the $24,793.17 that it had paid to its insured, the Forehands. The fact that Farm Bureau claimed under the multiple theories of subrogated negligence, conversion, and breach of contract against different defendants does not effect a stacking of damages. Even if all of the defendants wronged Farm Bureau in all of the ways claimed, the actual damages suffered by Farm Bureau equal the amount it actually received.
In its second argument, Farm Bureau asserts that if the district court incorrectly dismissed its conversion claim against Johnson, upon remand Farm Bureau can move to amend its petition to include a claim for punitive damages. Farm Bureau filed a motion to amend to add a punitive damage claim. The district court overruled the motion because the punitive damage claim was limited to the conversion cause of action, which was dismissed. Therefore, effectively, the district court did not rule on the efficacy of Farm Bureau’s claim for punitive damages. An appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned. In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002). Therefore, we are disinclined to embark upon an analysis of the law governing punitive damages to determine whether that claim is definitively precluded as a matter of law. Rather, we will give Farm Bureau the determination on the merits it seeks.
CAUSE OF ACTION FOR CONVERSION
Farm Bureau briefs two issues on appeal:
“Did the trial court err in finding that defendants Johnson and Hershewe & Gulick, P.C. could not be held liable for conversion for laiowingly concluding the claim of Steven Forehand and defendant Patricia Forehand by settling the claim, turning it into cash, depositing the proceeds of the claim, i.e., the cash, into their trust account, and then disbursing the cash without payment of the known lien of plaintiff Farm Bureau Mutual Insurance Company, Inc.?”
and
“Did the trial court err in granting summary judgment to defendants Johnson and Hershewe & Gulick, P.C. when they knowingly concluded the claim of Steven Forehand and defendant Patricia Forehand by settling the claim, turning it into cash, depositing the proceeds of the claim, i.e., the cash, into their trust account, and then disbursing the cash without payment of the known lien of plaintiff Farm Bureau Mutual Insurance Company, Inc.?”
A determination of whether summary judgment was appropriate will resolve both stated issues. Our standard of review for summaiy judgment is well settled. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). Here, the question is whether an action for conversion could lie under undisputed facts.
Conversion is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another. An action will not lie for conversion of a mere debt or chose in action. Temmen v. Kent-Brown Chev. Co., 227 Kan. 45, 50, 605 P.2d 95 (1980). The district court found the nature of the “property” alleged to have been converted was not amenable to the tort of conversion. We agree with this finding but further determine that Farm Bureau did not possess a sufficient ownership interest in the settlement proceeds to permit it to sue for conversion.
Nature of the Property
Farm Bureau appears to equivocate as to the property allegedly converted. In its petition and in portions of its appellate brief, Farm Bureau suggests that its statutory hen was converted. Elsewhere in its brief, Farm Bureau argues that “Johnson and Hershewe & Gulick, P.C. exercised the right of ownership over goods or personal chattels, i.e., cash money, belonging to another, i.e., Plaintiff Farm Bureau, to tire exclusion of the other s rights.”
Apparently, Farm Bureau is not using the term “cash money” in its ordinary sense, i.e., currency and/or coin. Northland issued checks, apparently payable to the victims and their attorneys. Those checks were not “cash money”; rather, they represented a “promise or order to pay a fixed amount of money on demand.” See K.S.A. 84-3-104. Even Farm Bureau acknowledges that when the checks were deposited, a creditor/debtor relationship was created between the account holder and the bank. See Moore v. State Bank of Burden, 240 Kan. 382, 386, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987). The record does not reflect when, if ever, the proceeds were converted into “cash money,” but at all times relevant to this case the settlement proceeds were in the form of intangible property.
Farm Bureau argues that Moore is distinguishable because Farm Bureau had a valid, statutory hen which gave it “a right to immediate possession and reimbursement from the tort settlement proceeds.” Curiously, Farm Bureau’s better argument for distinguishing Moore is that, here, the settlement deposits were arguably kept separate rather than being commingled with other funds of the depositor. Nevertheless, we disagree with Farm Bureau’s characterization of its “property.”
First, Farm Bureau fails to distinguish between its claims for reimbursement of physical damage payments and its claim for PIP benefits payments. K.S.A. 40-3113a(b) provides, in part, that an “insurer . . . shall be subrogated to the extent of duplicative personal injuiy protection benefits provided to date of such recovery and shall have a hen therefor against such recovery and the insurer . . . may intervene in any action to protect and enforce such hen.” Obviously, this lien does not apply to the $8,262.80 paid under Forehands’ collision and rental car coverage.
With respect to the $16,530.37 in PIP benefits paid, the statute does not create an immediate ownership interest, as Farm Bureau asserts. If that were true, no purpose would be served by the statute’s provision permitting an insurer to intervene “to protect and enforce such lien.” K.S.A. 40-3113a(b). Additionally, the right of subrogation is applied only to the extent that the PIP benefits are duplicative. We acknowledge Farm Bureau’s argument that case law exists finding settlement proceeds duplicative as a matter of law. However, insurance carriers are permitted to, and often do, agree that the PIP benefits are not duplicative, especially in circumstances such as this, where the insured suffers severe, permanent, and disabling injuries which are arguably undercompensated by the tortfeasor’s liability limits. Further, the same statute which grants the lien also contemplates that the insurer will pay a proportionate share of the attorney fees incurred to obtain the funds upon which the hen attaches. See K.S.A. 40-3113a(e). In short, until established by court order or agreement, Farm Bureau’s statutory hen was an inchoate, intangible “property,” the exact amount of which was unknown and which was not amenable to conversion.
Ownership of Settlement Proceeds
Northland issued its checks in conformity with a court order that established the owners of the proceeds to be Patricia A. Forehand, individually and as conservator of Steven E. Forehand’s estate. The Missouri court ordered Patricia to: (1) acknowledge receipt of the settlement proceeds; (2) pay her attorneys for litigation expenses and contingency fees; and (3) deposit the conservatorship’s net share of the settlement proceeds as directed by die Probate Court of Crawford County, Kansas. Johnson assisted his client in complying with the court order, utilizing his client trust account. The control Johnson exercised over the setdement proceeds was expressly authorized by the owners, Patricia A. Forehand and Steven E. Forehand’s conservatorship. If Johnson had, sua sponte, disbursed part of the proceeds to Farm Bureau, he would have been in violation of a court order and, arguably, could have been accused of conversion by the owner of the settlement proceeds, the Forehands.
Thus, Farm Bureau’s action for conversion of the settlement proceeds was correctly dismissed for the additional reason that the proceeds did not belong to the insurer. Rather, the insurer merely had a claim against the proceeds, requiring it to take steps to enforce its interests.
Johnsons Duty to Farm, Bureau
Unquestionably, Farm Bureau’s payments to its insureds created legal rights to seek reimbursement. Farm Bureau became subrogated to the Forehands’ rights, permitting the insurer to sue the tortfeasors, asserting its insured’s negligence claims. See, e.g., Railroad Co. v. Neet, 7 Kan. App. 495, Syl. ¶ 2, 54 Pac. 134 (1898). In fact, this is what occurred; Farm Bureau sued the tortfeasors, claiming negligence. Further, the insurer had a right of reimbursement from its insured under the policy contract. Again, this is what eventually occurred; the Forehands repaid their insurance company with interest. Farm Bureau is attempting to create a new method of enforcing its subrogation rights, i.e., suing their insured’s attorney for conversion.
Underlying this action is an apparent belief by Farm Bureau that Johnson owed a duty to his clients’ insurance carrier to, sua sponte and gratuitously, effect enforcement of Farm Bureau’s subrogation rights. We decline to manufacture such a duty. Indeed, such a duty would create an unacceptable conflict of interest. Johnson’s mission was to obtain the maximum recovery possible for the Forehands, which might well have included an attempt to avoid the reimbursement of PIP benefits by asserting that the payments were not duplicative.
We do not intend to intimate that an insurer will never have a cause of action against its insured’s attorney. If, as is common practice, the attorney, with the client’s consent, agrees to protect the insurer’s PIP lien for an agreed fee, a contract action will lie for a breach of that agreement. Similarly, if a plaintiff s attorney misrepresents a material fact in order to defeat an insurer’s PIP lien, the carrier might well pursue a fraud action. However, we do intend to make it crystal clear that a personal injury plaintiff s attorney who fails to gratuitously effect the payment their client’s insurer’s PIP lien from settlement proceeds cannot be sued by the insurer on a theory of conversion.
Affirm. | [
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Marquardt, J.:
Clubs, Inc. and Chad Waldrop (collectively, “Clubs”) appeal the trial court’s decision on an action for peaceable entry and forcible detainer brought by G.L. Macray. We reverse in part, vacate in part, and remand with directions.
On February 26, 2000, Clubs and Macray entered a commercial lease for a 21A year term, to expire on November 25, 2002. The lease contained an option to renew.
According to Macray’s records, by October 2002, Clubs was approximately $24,000 in arrears on rent payments. Macray filed a Chapter 61 action for peaceable entry and forcible detainer. At the same time, Macray sent Clubs a “Notice to Quit.” Macray informed Clubs that the lease would not be renewed and demanded that Clubs vacate the property immediately.
Waldrop threatened to bum down the building. Macray obtained an order in October 2002 restraining Waldrop from entering the property.
On October 30, 2002, Macray agreed to delay court proceedings provided that Clubs pay $12,000 cash forthwith and deliver an au tomobile to Macray to be held until the remaining $12,000 was paid. The remaining $12,000 was due by November 25, 2002.
A hearing was held on November 13, 2002, and Clubs did not appear. The trial court granted Macray a default judgment. Macray was granted possession of the property as of 12:01 a.m. on November 26, 2002, $21,000 in damages, and ownership of the automobile. Due to the prior agreement between Macray and Clubs, the default judgment was set aside. The trial court ordered that Clubs could remain in possession of the property until the time of trial.
In late November, Clubs attempted to negotiate a lease renewal without success. On November 24, 2002, Macray received an $1,800 check from Clubs. Clubs claimed that it was the December 2002 rent payment. The receipt for the $1,800 payment has the words “Dec Rent” written on it. Macray testified that the $1,800 payment was applied to taxes owed by Clubs.
In December 2002, the trial court ordered Macray to return the automobile to Clubs. The trial court stated, “And the $1800 for tire December rent will be taken off that $12,000, unless you want to go in another year contract with him. It’s going to be your decision.” Regardless of tire purpose of the $1,800 payment, possession of the property was returned to Macray.
At a January 2003 hearing, the trial court stated that it never found the $1,800 payment was for December rent. The trial court intended to rule that it did not know what the $1,800 payment was for, but if it was meant to be used for taxes, it was too much. Clubs timely appeals the trial court’s findings.
It is undisputed that Clubs paid Macray $10,200 as ordered by dre trial court, and that Macray returned the automobile to Clubs. Macray contends that this constitutes acquiescence in the judgment and the appeal should be dismissed.
Acquiescence is the voluntary compliance with all or part of the judgment. A party who voluntarily complies with a judgment cannot thereafter adopt an inconsistent position and appeal that judgment. Vanover v. Vanover, 26 Kan. App. 2d 186, 188, 987 P.2d 1105, rev. denied 268 Kan. 896 (1999).
We agree that Clubs complied with the trial court’s order regarding the payment of past due rent. The issue herein is whether Clubs’ payment extended its lease, giving it a right to continue its occupancy of the leased property. Clubs argues that K.S.A. 58-2502 automatically creates a new year-to-year tenancy by operation of law because of its $1,800 payment to Macray. Clubs maintains that the trial court had no discretion to find otherwise.
At the December 10, 2002, hearing the trial court stated:
“That being said, I tend to believe that the $1800 was for December rent. I’m not going to find, however, that you are bound to this contract, other than I am going to find that there is $1200 (sic) back rent owed to you, Mr. MacRae— $12,000,1 misspoke—$12,000 owed to you, that that $12,000 should go to you.
“You should return Mr. Waldrop’s car to him. And the $1800 for the December rent will be taken off that $12,000, unless you want to go in another year contract with him.”
The journal entry filed January 14, 2003, reads:
“That the Court finds that the $1,800.00 payment was for the December 2002 rent; which said rent was after the expiration of the lease. This payment is to be returned to the Defendants.”
The trial judge denied signing the journal entry. At a hearing on Clubs’ motion to reconsider, the trial judge noted:
“But I don’t believe that I found that the $1800 was payment for December of 2002 rent. I believe that I found I didn’t know who was telling the truth as far as what the rent was ... I don’t believe I made it was a finding for rent or for taxes. I just said but if it was for taxes, it was to be returned.”
The hearing concluded with the trial court noting:
“I do know that I purposely did not call it rent because it would have kicked in for another year. It would just have brought up this very point. But I do also know that I don’t believe I made a determination and I wasn’t asked to make a determination on what it was. And I believe—and we’ve got a record. But I believe—and if I misspoke, what I intend to have ruled was that I didn’t know what the money was for.”
If the $1,800 payment had been for rent, it would automatically create a year-to-year tenancy pursuant to K.S.A. 58-2502. The record on appeal contains a document that designates the $1,800 payment as rent and the owner of the premises alleges that it was used for taxes. This case is remanded to the trial court to determine the purpose of the $1,800 payment.
Clubs also argues on appeal that there is no statutory authority for tire issuance of a restraining order in a Chapter 61 case. Clubs believes that the trial court issued the restraining order without proper statutory authority.
Temporary restraining orders are creatures of statute. Given that fact, our standard of review is plenary. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 2003 Supp. 61-2801 et seq. establishes the Code of Civil Procedure for Limited Actions. K.S.A. 2003 Supp. 61-2912 enumerates certain provisions of article 2 of Chapter 60 which are adopted into Chapter 61 by reference. The procedure for issuing a restraining order is not found in article 2 of Chapter 60. See K.S.A. 60-903.
However, this is an instance when the principle of expressio unius est exclusio alterius—inclusion of one thing implies the exclusion of another-—applies. When legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
We believe that the legislature evidenced its expressed desire to adopt only certain Chapter 60 procedures into Chapter 61. It makes sense, then, that the rest of Chapter 60 has not been incorporated into Chapter 61. That would include the provision relating to the issuance of restraining orders.
We agree with Clubs’ argument that the trial court has no authority to issue a restraining order under Chapter 61. The restraining order is hereby vacated.
The case is remanded to the trial court to determine the purpose of Clubs’ $1,800 payment to Macray.
Reversed in part, vacated in part, and remanded with directions. | [
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Malone, J.:
Troy A. Percival appeals his jury conviction of aggravated robbery. He raises numerous claims of error, including the improper admission of evidence of his prior convictions, improper jury instructions, and insufficiency of the evidence. We conclude that Troy received a fair trial and affirm his conviction.
On December 27, 2001, at approximately 12:20 a.m., Jennifer Scott heard someone punching in numbers to enter the security door at the Comfort Inn in Wichita, Kansas. Scott was working as the motel’s night auditor and believed the person attempting to enter was a coworker. However, a masked man with a meat cleaver came into the office, pushed Scott back into the motel’s counter, shoved the cleaver in her face, and verbally threatened her. The man was “covered from head to toe in dark clothing.” After shoving Scott, the man went directly to the security camera and struck it with the meat cleaver. Scott pled for him not to hurt her. The man went to the cash drawer, took money, and left with approximately $132.
Scott called 911 and the motel’s general manager, Teresa Helm. Scott told Helm that she believed Steven Percival, one of Helm’s sons, had committed the robbery. Helm is the mother of Steven and Troy Percival. Both Steven and Troy had previously worked at the Comfort Inn. Helm instructed Scott to tell the police everything Scott observed.
The police responded quickly to Scott’s call. Scott gave a description of the perpetrator, his clothing, and other details of the event to an officer. Meanwhile, other officers were dispatched to look for the suspect in the area.
Two officers stopped Steven and Troy in a car for running a stop sign near the Comfort Inn at approximately 12:26 a.m., 6 minutes after the robbeiy. Both Steven and Troy are white males, approximately 6 feet in height, and weigh 150-170 pounds, all characteristics which matched. Scott’s description. Steven was driving. There was currency on the floorboard at Troy’s feet. A ski mask and gloves were on the middle console. Troy was sweaty, swearing, and belligerent.
Officers transported Steven and Troy separately to a Coastal Mart near the Comfort Inn for a show-up. During the transport, Steven told Officer Dean that Troy threw clothing Troy had worn during the robbeiy out the car window before they had stopped. Steven also stated that Troy had thrown away a meat cleaver Troy used in the robbery. Dean radioed Officer McKee who went to the location described by Steven. McKee found a blue sweatshirt, a white stocking cap, a blue bandana, and a pair of black gloves at the site Steven designated. McKee did not find the meat cleaver.
Troy, in his ride to the Coastal Mart, apparently said, “I’ve been in the pen.” He was wearing an ankle bracelet and stated he was on parole.
Scott identified Troy as the perpetrator at the show-up. She identified him by his pants and his voice. She did not, however, recognize the shirt Troy had on because it was light in color. Steven wore light colored pants. This identification occurred at approximately 1:44 a.m.
Helm came to the Coastal Mart after checking in at the Comfort Inn. She confronted Troy. She would later testify Troy had access to the security door; Steven did not.
Steven and Troy were charged with aggravated robbery in violation of K.S.A. 21-3427. Steven pled guilty to a reduced charge of robbery and was sentenced.
Around February 1, 2002, David Paiva, a maintenance man at the Comfort Inn, found a meat cleaver while picking up trash. He showed it to Scott. She informed him that the police had already found the meat cleaver used in the robbery, so Paiva sharpened the meat cleaver and left it in the motel’s maintenance office. Shortly before Troy’s preliminary hearing, Helm learned about the discovery of the meat cleaver and turned it over to the police.
At the May 29, 2002, trial, Troy testified that he and Steven had smoked cocaine on the night of the robbery. According to Troy, Steven bought the cocaine with someone else’s money and needed to replace the money. Troy contended he dropped Steven off at the motel to earn money from a man by prostitution. According to Troy, Steven paged him shortly thereafter and Troy went back to the Comfort Inn. Troy testified that Steven opened the driver’s door, yelled at Troy to let him drive, and threw money at him as Troy was moving into tire passenger’s seat. Troy denied any knowledge of the robbery until being stopped by the officers.
Steven testified that he and Troy smoked crack on the night of the robbery and wanted more but had no money. Troy then decided to rob the Comfort Inn because he still had a passkey. Steven described Troy getting a blue sweatshirt, blue bandanna, and a meat cleaver from his home before they left for the Comfort Inn. Steven kept the car running while Troy went inside the motel. Several minutes later, Troy came out running. Troy jumped into the backseat and, while Steven was driving, Troy threw some clothes out the window. Troy climbed over the seat and was in the passenger seat when Steven ran the stop sign and was stopped by the officers.
Scott testified and identified Troy as the person who committed the robbery. Helm also testified for the State. She confirmed that Troy had called the motel a week before the robbery and asked the clerk if she would look the other way if he came and took money from the cash drawer.
The jury convicted Troy of aggravated robbery. He was sentenced to 233 months in prison. Troy timely appealed.
Evidence of prior convictions
Troy first claims the trial court erred by allowing the State to question Troy about his past convictions. Troy argues this evidence violated the order in limine and K.S.A. 60-421.
Generally, an appellate court’s standai'd of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002). However, this issue also involves interpretation of K.S.A. 60-421. Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). In State v. Johnson, 21 Kan. App. 2d 576, 578, 907 P.2d 144, rev. denied 258 Kan. 861 (1995), a similar issue was raised. This court stated: “Because this issue involves an interpretation of K.S.A. 60-421, our standard of review is unlimited.”
Prior to trial, Troy filed a motion in limine to suppress evidence of his statements made in the patrol car during transport to the Coastal Mart. These statements were that Troy had “been in the pen” and that he was on parole. At the hearing, defense counsel stated Troy also wanted “to keep out any 60-455 evidence” and “prior criminal activity.” The motion was granted.
At trial, Troy referred to Steven as “shady.” The prosecutor asked, “Are you saying that you aren’t anything like your brother?” Eventually, after much quibbling, the prosecutor asked:
“Q. What’s your image?
“A. My image?
“Q. Yeah.
“A. I’m a twenty-four-year-old male . . . getting ready to get married. That’s my image.
“Q. You’ve got some crimes for false statement [or] dishonesty; don’t you?
“A. Crimes for some false statements?”
Counsel objected and a bench conference was held. Counsel stated the questioning was a violation of the order in limine. The district court responded:
“COURT: I disagree. If there’s—he takes the stand and testifies under oath, his credibility can be challenged with crimes of dishonesty and false statement, 60-421.
“[DEFENSE]: I strongly disagree with you, Judge, because I don’t believe that you can impeach him with prior bad acts unless, of course, he’s saying I’ve never committed any bad prior acts.
“COURT: ... I agree prior bad acts, but if they are convictions of dishonesties or false statement, they are admissible, and it’s proper impeachment.”
The court then took a short recess. Immediately after the recess, the prosecutor again began questioning Troy about his convictions of dishonesty and false statement. There was no objection at that time. Troy ultimately disclosed he had a conviction of criminal deprivation of property. The State also asked about a theft, but Troy made no admission to this charge. The prosecutor failed to impeach by inquiring further or by producing any abstracts of conviction. There was no further questioning about Troy s criminal record throughout the trial.
The State initially argues that this issue was not preserved for appeal because Troy failed to make a contemporaneous objection at trial. Although Troy originally objected to the evidence of his prior convictions when the question was first asked by the prosecutor, Troy failed to renew the objection when the questioning continued immediately after the short recess.
K.S.A. 60-404 states that a judgment shall not be reversed by reason of the erroneous admission of evidence “unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” Here, Troy clearly objected to the evidence of his prior convictions when the question was initially asked by the prosecutor, and the trial court overruled the objection. The trial court took a short recess, and then the same line of questioning was continued by the prosecutor. Although Troy failed to renew his objection after the recess, we believe that he substantially complied with the requirement of K.S.A. 60-404 and that the purpose of the statute has certainly been met in this case. Accordingly, we will review the merits of this issue.
K.S.A. 60-421 states:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
According to the statute, the credibility of a witness can generally be impeached with evidence of a conviction of a crime involving dishonesty or false statement. However, this rule does not apply to the accused in a criminal proceeding. Under K.S.A. 60-421, a criminal defendant can only be questioned about convictions involving dishonesty or false statement if the defendant “has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
The Kansas Supreme Court has “established that a criminal defendant does not place his or her credibility in issue, as contemplated by K.S.A. 60-421, merely by taking the witness stand.” See State v. Harris, 215 Kan. 649, 651, 527 P.2d 949 (1974). In State v. Smith, 28 Kan. App. 2d 56, 11 P.3d 520 (2000), the court specifically stated that the previous convictions of dishonesty or false statements are barred when the witness is the defendant in a criminal case “unless the defendant ‘opens the door by introducing evidence of his credibility.” (Emphasis added.) 28 Kan. App. 2d at 62 (citing State v. Logan, 236 Kan. 79, 83, 689 P.2d 778 [1984]); see also State v. Johnson, 21 Kan. App. 2d 576, 578-79, 907 P.2d 144, rev. denied 258 Kan. 861 (1995) (The court decided the defendant emphasized his truthfulness without any solicitation from the State, so he opened the door to being cross-examined about his previous convictions involving dishonesty or false statements.).
Here, the State argues that Troy “opened the door” to the evidence of his prior convictions by stating that Troy was not like his brother and that he had an image of “a 24-year-old male . . . getting ready to get married.” We disagree. Troys statement did not support his credibility or emphasize his truth fulness. More importantly, the remarks were clearly solicited by the State. We conclude there was no basis for the prosecutor to question Troy about his prior convictions. This evidence was admitted in violation of K.S.A. 60-421 and the court’s order in limine.
We must now decide if this error is grounds to reverse Troy’s conviction of aggravated robbeiy. “‘When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved. [Citation omitted.]” State v. Albright, 271 Kan. 546, 556, 24 P.3d 103 (2001). ““ “Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless. [Citation omitted.]’ ” State v. Jamison, 269 Kan. 564, 570, 7 P.3d 1204 (2000). To determine whether a trial error is harmless error or prejudicial error, each case must be scrutinized and viewed in the light of the trial record as a whole, not on each isolated incident viewed by itself. State v. Navarro, 272 Kan. 573, 584, 35 P.3d 802 (2001).
We first consider the fact that the admission of improper evidence in this case was relatively isolated. Troy disclosed that he had a prior conviction of criminal deprivation of property. The prosecutor asked about a theft conviction, but Troy denied this charge. After this limited questioning, the prosecutor moved on to a different issue. The prosecutor did not compound the error by offering to introduce any abstracts of conviction. There was no further questioning about Troy’s criminal record during the course of the 3-day trial. Also, the prosecutor never brought out that Troy was on parole at the time of the robbeiy.
The evidence that Troy at least assisted in the aggravated robbery was overwhelming. Troy was arrested with Steven in the car near the Comfort Inn a few minutes after the robbery. There was currency on the floor board at Troy’s feet. A ski mask and gloves were on the middle console. Troy was sweaty, swearing, and belligerent. Scott identified Troy as the perpetrator at the show-up shortly after the robbery. She identified him by his pants and his voice. Although Troy’s shirt was different than originally described by Scott, the evidence indicated that Troy had earlier thrown his dark shirt out the car window.
Primarily, Troy was implicated by his own family members. Steven testified that Troy committed the robbery while Steven waited in the car. Although Troy tried to blame the robbery on Steven, tire evidence in the case was much stronger against Troy. Helm testified that Troy had access to the security door and Steven did not. Helm also testified that her son, Troy, had discussed'robbing the motel a week earlier.
We conclude that tire erroneous admission of evidence was harmless. Considering the trial record as a whole, we do not believe that the error affected Troys substantial rights. We conclude beyond a reasonable doubt that tire error did not affect the result of the trial and, accordingly, the error is not grounds for reversal.
Instruction on lesser included offense
Troy next claims the trial court erred by failing to give a jury instruction for simple robbery. Troy was charged with aggravated robbery pursuant to K. S .A. 21-3427, the taking of property by force or threat of bodily harm while “armed with a dangerous weapon, to-wit: a meat cleaver.” Troy contends the meat cleaver was used as a tool to disable the security camera and not as a weapon. Thus, Troy claims that the jury should also have been allowed to consider whether he was guilty of simple robbery.
A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999). An instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict the accused of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).
Whether a robber is “armed with a dangerous weapon” for aggravated robbery is determined from the victim’s point of view. An object can be a dangerous weapon if intended by the user to con vince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon. State v. Colbert, 244 Kan. 422, 425-26, 769 P.2d 1168 (1989).
Scott testified at trial that the perpetrator pushed her back into the counter with a meat cleaver in his hand. He told her to “shut the fuck up . . .” and “that he would kill [her].” Scott felt threatened and pleaded with the perpetrator not to hurt her. She testified she was “freaking out.” Clearly, tire perpetrator committed robbery with a dangerous weapon. The fact that he also used the meat cleaver to strike the security camera does not transform the weapon into a tool.
There was no evidence to support a verdict for simple robbery. Furthermore, Troy’s theory of defense was that Steven committed the robbery. If the jury believed Troy, they would have acquitted him. Troy’s argument for a lesser included instruction on simple robbery is without merit.
Accomplice and informant instructions
Next, Troy claims the trial court erred by not giving an accomplice instruction. There was no request at trial for the instruction.
“ “When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If all the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.’ [Citations omitted.]” State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002).
“Unless the instruction is clearly erroneous, no party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection. Opportunity shall be given to make objections out of the hearing of the jury. K.S.A. 2001 Supp. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citations omitted.]” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
PIK Crim. 3d 52.18 states:
“An accomplice witness is one who testifies that he was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.”
Although the trial court did not give the accomplice instruction, the trial court gave the general credibility of a witness instruction at PIK Crim. 3d 52.09, which states:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to die matter about which a witness has testified.”
During cross-examination, defense counsel attempted to impeach Steven as being the person who robbed and threatened Scott. Counsel stressed his past convictions, his drug use, and his earlier threats to others. Counsel also attempted to impeach Steven’s credibility with allegations that Steven committed prostitution and that he used another’s money to buy drugs on the night of the robbery. Counsel suggested Steven testified against Troy to obtain a deal from the State. After this cross-examination, the jury was certainly aware of Steven’s potential lack of credibility. There is no reason to believe that tire jury failed to use “common knowledge and experience” in assessing Steven’s testimony.
Furthermore, Steven’s testimony was corroborated by Scott, the officers, and Helm. All the evidence presented by the State pointed to tire conclusion that Troy committed the robbery inside the motel. Even though Steven’s testimony was corroborated, it would have been tire better practice for the trial court to give the accomplice instruction. See PIK Crim. 3d 52.18, Notes on Use. However, considering the instructions as a whole and the fact that the accomplice instruction was not requested, we conclude that the trial court’s failure to give the instruction was not clearly erroneous.
Troy also argues the jury should have received a cautionary instruction regarding the testimony of an informant. There was no request at trial for the instruction.
PIK Crim. 3d 52.18-A states:
“You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence.”
This instruction was not indicated because Steven was not an informant. He did not act as an agent for the State. The definition of an informant does not include a person who gives information only after being interviewed by police officers or gives information during the course of an investigation. State v. Abel, 261 Kan. 331, 336, 932 P.2d 952 (1997). Also, Steven’s testimony at trial was substantially corroborated.
Admission of meat cleaver
Next, Troy claims the trial court erred by admitting into evidence the meat cleaver found at the Comfort Inn approximately 5 weeks after tire robbery. At trial, counsel objected because die blade had been sharpened after it was found and may have looked more menacing than during the robbery. As we previously indicated, the admission of evidence lies within the sound discretion of the trial court. Jenkins, 272 Kan. at 1378.
The State correctly laid the foundation for where and how the meat cleaver was found. Additionally, the jury heard that the blade had been sharpened and why. The fact that the meat cleaver was not discovered until later and that its condition was changed goes to the weight of the evidence, not its admissibility. Physical evidence, unless it is clearly irrelevant, should be admitted for such weight and effect as the jury sees fit to give it. State v. Whitesell, 270 Kan. 259, 277, 13 P.3d 887 (2000). Therefore, tire court did not abuse its discretion by admitting the meat cleaver into evidence.
On appeal, Troy argues there was no link to the meat cleaver admitted into evidence and the one used in the robbery, making the evidence irrelevant. This was not the objection at trial. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different objection. State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002). Clearly, a meat cleaver found on the grounds of tire motel after the robbery was not totally coincidental. The trial court did not act arbitrarily, fancifully, or unreasonably by admitting the meat cleaver into evidence.
Aiding and abetting instruction
Next, Troy claims tire trial court erred by giving an aiding and abetting instruction. The trial court gave the jury the following instruction found at PIK Crim. 3d 54.05:
“A person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
Troy objected to this instruction at trial. On appeal, he asserts the State did not produce any evidence which indicated Troy may have aided Steven in the robbery. Therefore, Troy argues it was error to include this instruction.
Steven admitted to participating in the robbery and testified Troy planned and actually went into the motel. Troy s description, however, was that he was not involved and Steven tricked him into waiting with the getaway car. The jury could have believed various scenarios given by the evidence. A juror could have concluded that Troy drove Steven to the motel to commit the robbeiy, waited in the car, and then assisted with the getaway.
“If, from the totality of the evidence, a jury reasonably could conclude that the defendant aided and abetted another in the commission of the crime, then it is appropriate to instruct the jury on aiding and abetting. [Citation omitted.]” State v. Pennington, 254 Kan. 757, 764, 869 P.2d 624 (1994).
The State charged both Steven and Troy with aggravated robbery. Both men were found in the car with the money. The aiding and abetting instruction was included based on law applicable to the facts of this case. The instruction was supported by substantial competent evidence presented in the case.
Allen instruction
Next, Troy claims the trial court erred in giving what is known as an Mien instruction to the jury. An Allen instruction is based upon the holding in Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Troy did not object at trial to the court’s inclusion of the instruction. As previously stated, we consider this issue based upon a clearly erroneous standard of review.
The instruction given by the trial court was taken verbatim from PIK Crim. 3d 68.12. Troy asserts the Kansas Supreme Court has voiced disapproval of the Allen instruction and has urged caution in its application because of its potential coercive effect. Although there is some truth to this claim, Troy fails to put the Supreme Court’s concerns in the proper context. ■
The potential coercive effect of an Allen instruction in any case depends largely on when the instruction is given to the jury. The instruction is disapproved if given after the jury has begun deliberations, but the instruction is approved if given prior to deliberations. This view was expressed in State v. Struzik, 269 Kan. 95, 109, 5 P.3d 502 (2000), wherein the court stated:
“This court’s reasoning for continued disapproval of a deadlock instruction given after the jury has begun deliberations is that such an instruction could be coercive or exert undue pressure on the jury to reach a verdict. One of the primary concerns with an AHen-type instruction has always been its timing. When the instruction is given before jury deliberations, some of the questions as to its coercive effect are removed.”
See also State v. Poole, 252 Kan. 108, 114, 843 P.2d 689 (1992) (“If the instruction is given prior to deliberation, ‘all question with regard to the coercive effect of the same would be removed.’ ”); State v. Hall, 220 Kan. 712, 719, 556 P.2d 413 (1976) (“The danger in giving an intimidating or coercive instruction arises when a jury has reported its failure to agree on a verdict. Under such circumstances a coercive instruction might induce a jury to return a verdict which they would not otherwise have reached.”)
Here, the trial court gave the instruction prior to the jury retiring for deliberations. Therefore, it cannot be said the instruction had such a coercive effect as to require reversal of Troy’s conviction. The giving of the Allen instruction was not clearly erroneous.
Sufficiency of the evidence
Next, Troy claims there was insufficient evidence to convict him of aggravated robbeiy. This argument fails.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
We have already recited the sufficiency of the evidence in applying the harmless error standard to the evidence of Troy’s prior convictions. Troy would have this court believe his version of the robbery and the events surrounding it, but this court does not reweigh evidence or pass on the credibility of witnesses. State v. Saiz, 269 Kan. 657, 664, 7 P.3d 1214 (2000). The evidence in this case was sufficient to convict Troy of aggravated robbery.
Troy raises other issues including the failure to give a unanimity instruction and cumulative error. We have reviewed the record and, without further elaboration, find these arguments to be without merit. “This, like many criminal trials, was a difficult one, but as we have often said, an accused is entitled to a fair trial, not a perfect one. State v. Chandler, 252 Kan. 797, Syl. ¶ 3, 850 P.2d 803 (1993).” State v. Broyles, 272 Kan. 823, 842, 36 P.3d 259 (2001).
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The opinion of the court was delivered by
Fatzer, J.:
The action was in mandamus to compel the state auditor to register $400,000 principal amount of general obligation urban renewal bonds issued by the city of Kansas City, Kansas. Trial was by the court which found that resolution No. 15855 properly set out the purpose of the urban renewal bonds and was in accord with G. S. 1957 Supp. 17-4754 (d); that ordinance No. 41559, authorizing the issuance of the bonds, was in compliance with the statutes relating to the issuance of urban renewal general obligation bonds, and that G. 'S. 1957 Supp. 17-4748 authorized the inclusion of commercial properties in urban renewal projects. The state auditor was directed to register the bonds, and he has appealed from that judgment and the order overruling his motion for a new trial.
The allegations of the application for the writ and the answer will not be summarized except to say it was alleged by plaintiff and denied by defendant that G. S. 1957 Supp. 17-4754 (d) and the proceedings leading up to the issuance of the bonds in question were legal, regular, and in conformity with the constitution of Kansas and the urban renewal law (G. S. 1957 Supp. 17-4742 — 17-4761), the validity of which was sustained by this Court in State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 296 P. 2d 656. That opinion was filed April 28, 1956. At the regular 1957 session of the legislature, what appears now as G. S. 1957 Supp. 17-4754 (cl) was amended in particulars hereafter noted, and gives rise to some of the questions presented in this controversy. In discussing the various contentions of the parties, all reference to statutes is made to G. S. 1957 Supplement unless otherwise noted.
Defendant’s first contention is that the population limitations in 17-4754 (d) constitutes special legislation in violation of Art. 2, Sec. 17 of the constitution. It is argued that the statute authorizes the issuance of general obligation bonds without a vote of the electors in cities over 125,000 population, except upon a protest petition, while a vote is required in all cities having less population, and that the act could have been made general in its application to all cities. The point is not well taken. Prior to its amendment in 1957, 17-4754 (d) provided that bonds issued pursuant to its authority must be issued in the manner provided by the general bond law of the state, i. e., after legal notice of an election and an afiirmative vote of the people of the city. Section 17-4754 (d) as presently appears, reads:
“For the purposes of this section, or for the purpose of aiding in the planning, undertaking or carrying out of an urban renewal project of a municipality, such municipality may (in addition to any authority to issue bonds pursuant to section 17-4751 of the General Statutes Supplement of 1955) issue and sell its general obligation bonds: Provided, That before any general obligation bonds may be issued under the urban renewal law, the city shall adopt a resolution, finding and declaring it necessary to issue such bonds, which resolution shall state the purpose for which said bonds are to be issued and the maximum amount of bonds to be issued, and shall contain a statement relating to the provision for protest as hereinafter provided, which resolution shall be published once each week for two consecutive weeks in the official paper of the city, and if within sixty (60) days after the date of the last publication of said resolution, a protest, signed by not less than five percent (5%) of the electors in the municipality, as determined by the vote cast for secretary of state at the last preceding general election, is filed with the city clerk, the bonds shall not be issued, unless the governing body calls an election within the time and in the manner prescribed by section 10-120 of the General Statutes of 1949 or any amendments thereto, and the proposition shall receive the favorable vote of a majority of the votes cast on the proposition: Provided further, That no city with a population of less than 123,000 shall issue general obligation bonds under the urban renewal law unless issued pursuant to and as the result of such an election as hereinbefore prescribed.” (Emphasis supplied.)
This court has repeatedly held that to have uniformity, legislation need not affect every .individual, class or community in the state, but that it is competent for the legislature to classify and adopt a general law to the class created, provided the class is a natural and genuine one, having a substantial and reasonable relation to the subject matter involved. A clear statement of this principle is made in State, ex rel., v. Urban Renewal Agency of Kansas City, supra, wherein the court stated:
“As stated, the act here under consideration applies only to cities having a population of more than 75,000. No other limitation is mentioned. Classifications based solely upon population quite uniformly have been held valid, provided, of course, they were based upon real and substantial distinctions which bore a reasonable and substantial relation to the subject matter involved. See State, ex rel., v. City of Topeka, 168 Kan. 663, 215 P. 2d 644; City of Lawrence v. Robb, 175 Kan. 495, 265 P. 2d 317, and Common School District No. 6 v. Robb, 179 Kan. 162, 293 P. 2d 230.” (1. c. 437.)
See, also, State, ex rel., v. Kansas City, 134 Kan. 157, 4 P. 2d 422, and McDonald v. Joint Rural High School District No. 9, 180 Kan. 563, 565, 306 P. 2d 175.
The challenged act makes election in cities over 125,000 population unnecessary, except upon a protest petition. No other limitation is prescribed. Thus, only the largest cities in the state (now Kansas City and Wichita) are relieved of holding a bond election. In State, ex rel., v. Urban Renewal Agency, supra, we held that as cities become more populous they are subject to more slum and blighted areas, which are injurious to the health and welfare of their inhabitants and that population is a legitimate ground for classification in an urban renewal law. Certainly, the expense and delay of holding bond elections in larger cities and the greater need and urgency for urban renewal action justifies a classification on the basis of population, which, in this case, has a real and substantial relation to the purpose of the statute. It is conceivable that differences of opinion may exist in smaller cities as to whether slum and blighted areas are present, thus making population a legitimate ground for classification and differentiation with respect to holding elections to issue bonds to undertake and carry out urban renewal projects. Moreover, it is well settled that if any state of facts reasonably can be conceived that will sustain the classification, there is a presumption of the existence of that state of facts, and one who assails it must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. Not having pleaded facts nor directed attention to matters of common knowledge which may be judicially noticed, the defendant has not sustained the burden upon him to show the classification in question was arbitrary. (Board of County Comm’rs v. Robb, 166 Kan. 122, 133, 199 P. 2d 530, and cases therein cited.) We hold the act in question to be a general law and not in violation of the second clause of Art. 2, Sec. 17 of the constitution.
It is next contended that ordinance No. 41559 violates G. S. 1949, 13-1421 for the reason its subject is not clearly expressed in its title. It is argued that both the resolution No. 15855 and the ordinance No. 41559 refer to “projects” in the plural and that the areas encompassed by such projects were not definitely described therein, thus depriving electors of the opportunity of determining whether to file a protest petition, and that the lack of such notice amounted to the taking of property without due process of law in violation of Sec. 1 of the 14th Amendment of the federal constitution, and further, that since both revenue (17-4751) and general obligation bonds (17-4754 [d]) may be issued in connection with urban renewal projects, the ordinance is invalid by reason of the failure to specify in its title which type of bonds were to be issued.
There are several good reasons why the contention lacks merit. In the first place, on August 30, 1955, the city adopted resolution No. 15255 pursuant to 17-4746 placing the urban renewal law into effect and determined that one or more slum or blighted areas existed in the city, the rehabilitation, conservation, or redevelopment of which was necessary in the interest of public health, safety, morals and welfare of the residents of the city. Thereafter, on July 11, 1957, the city adopted the resolution in question, No. 15855, which reads in part:
“That it is necessary for tbe City of Kansas City, Kansas, to issue general obligation bonds under Chapter 156 of the 1957 Session Laws, in the amount of $1,250,000 for the purpose of aiding in the planning, undertaking, and carrying out of urban renewal projects in the City of Kansas City, Kansas.
“It Is Further Ordered that this resolution shall be published once a week for two consecutive weeks in the official paper of the City of Kansas City, Kansas, and that if within sixty (60) days after the date of the last publication of said resolution, a protest signed by not less than five percent (5%) of the electors in the municipality, as determined by the vote cast for Secretary of State at the last preceding general election, is filed with the City Clerk, the bonds shall not be issued unless the governing body calls an election within tlie time and manner prescribed by Section 10-120 of the General Statutes of 1949, or any amendments thereto, and the proposition shall receive the favorable vote of the majority of votes cast on the proposition.”
From the record before us, it appears the city complied with 17-4754 (d) in all respects. The resolution was properly adopted and notice was duly given to the electors that $1,250,000 general obligation bonds would be issued to aid in the planning, undertaking and carrying out of urban renewal projects, unless a protest petition was filed with the city clerk requiring a vote on the proposition. But, despite that notice no protest was filed. Later, and on April 17, 1958, the city adopted ordinance No. 41559 implementing the resolution, and authorizing the issuance of $400,000 principal amount of general obligation bonds — a part of the $1,250,-000 found necessary by the resolution for urban renewal purposes. It was unnecessary that notice again be given before the ordinance could be adopted and general obligation bonds provided in the resolution be issued; nor was it necessary that the projects be described in the ordinance and resolution. The statute (17-4754 [cZ]) does not require it. The purport of that section is that a city may provide for the expense of planning an urban renewal project or projects even before the boundaries of the area or areas are established. Although the statute refers to “an urban renewal project,” words importing the singular number only may be extended to several persons or things (G. S. 1949, 77-201), and it would be an unwarranted construction to say that a city such as Kansas City may aid in the planning, undertaking and carrying out of only one urban renewal project at any one time. As previously indicated, resolution No. 15255 placed the urban renewal law into effect and determined that one or more slum or blighted areas should be rehabilitated or redeveloped. Without quoting them, we think the various sections of the act (17-4743, 17-4745, 17-4746) when construed together sustain the conclusion that general obligation bonds may be issued to aid in the planning, undertaking and carrying out of more than one urban renewal project at one time.
In the second place, the issuance of the bonds did not amount to the taking of property of a taxpayer or elector without due process of law. The bonds, when legally authorized and issued, become a lien upon all taxable property in the city for which it is made the duty of the governing body to levy in each year a sum sufficient to pay the principal and interest on the bonds falling due in that year (G. S. 1949, 10-113). We do not have before us the taking of property of a taxpayer or an elector to carry out an urban renewal project, but, in passing, we note that in such event 17-4749 authorizes the city to exercise the power of eminent domain to acquire such property in the manner provided by G. S. 1949, Ch. 26, in which proceeding the taxpayer or elector would be duly notified and opportunity afforded to establish the reasonable and fair market value of the property to be taken.
In the third place, the failure to expressly describe in the title of the ordinance the type of bonds to be issued is not fatally defective. While good practice would dictate that the type of bonds should be included in the title of the ordinance, we think that which was included was sufficient to properly identify and describe general obligation urban renewal bonds. The title of the ordinance reads:
“An Ordinance authorizing the issuance of Urban Renewal Bonds of the City of Kansas City, Kansas, in the principal amount of $400,000, for the purpose of aiding in the planning, undertaking and carrying out of urban renewal projects in said City.” (Emphasis supplied.)
As is noted, .17-4754 (d) authorizes cities to issue and sell general obligation bonds for the purpose of aiding in the planning, undertaking or carrying out of urban renewal projects. This authorization is separate and distinct from that contained in 17-4751 providing for the issuance of revenue bonds “to finance the undertaking of any urban renewal project” under the act. The title of the ordinance clearly indicates the bonds are issued pursuant to 17-4754 (d), hence they are general obligation bonds of the city. A city is not required by G. S. 1949, 13-1421 to include in the title all of the details of the provisions of the ordinance; it is enough if the title is sufficiently broad to indicate in general terms the provisions of the ordinance (Taneyhill v. Kansas City, 133 Kan. 725, 729, 3 P. 2d 645). See, also, McQuillin, Municipal Corporations, 3d ed., Vol. 5, Sec. 16.19. Without recounting at length the terms of the ordinance, we hold the title to be free from the objections made by the defendant.
The defendant asserts he correctly refused to register the bonds for the reason that commercial properties were included in at least one proposed urban renewal area, and that the urban renewal law does not contemplate nor authorize the inclusion of business or commercial properties in such areas. The city admits that commercial or business properties were included in projects which have been established under urban renewal plans of the city. The statute (17-4760), among other things, defines “slum area” and “blighted area.” Without quoting these definitions in full suffice it to say that “slum area" is defined to include “residential or nonresidential” properties and “blighted area” is defined to mean “an area (other than a slum area) which by reason of the presence of a substantial number of slum, deteriorated or deteriorating structures . . .” We think the definitions of the act clearly answer the contention. Buildings or improvements which are “nonresidential” constitute commercial or business buildings and improvements as set out in the definition of “slum area.” The words “blighted area” refer to slum, deteriorated or deteriorating structures. Furthermore, 17-4748 (c) empowers the city to enter upon any building or property in any urban renewal area and acquire the same by eminent domain or otherwise, together with any improvements thereon, and to hold, improve, clear or prepare for redevelopment such property. In view of the foregoing, we hold that the urban renewal law applies to commercial or nonresidential properties, and that the auditor was not justified in refusing to register the bonds for that reason.
Other contentions of the defendant have been carefully considered, but it is unnecessary to discuss them in view of our holding that the city fully complied with 17-4754 (d) in issuing the general obligation bonds. It not having been affirmatively made to appear that the trial court erred in directing the state auditor to register the bonds, that judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case, and the employer and its insurance carrier have appealed from the award.
Two basic questions are involved.
The first concerns the proper formula to be employed in the determination of the amount of death benefits due to the widow of a deceased workman where both of them were employed at the time of his death.
The second question concerns the proper basis to be used in the determination of the average yearly earnings of a deceased workman in connection with the computation of death benefits under the statute.
The essential facts are not in dispute.
The deceased, John A. Conklin, and Anna B. Conklin, his widow, were married in 1922. They lived in Emporia. Their two daughters were married and were financially independent of them. John was a salesman for the Topeka Wholesale Grocery Company and worked a regular territory in and around Emporia. He used his own automobile in calling on his customers in nearby towns and paid his own automobile expenses and upkeep. While on his way to Waverly in connection with his regular work as a grocery salesman on February 6, 1957, he met his death in an automobile accident. For at least two years prior to his death John had received an annual salary of $3,600 and an annual bonus of $400, thus making his yearly earnings $4,000. During that period Anna had been employed in an Emporia department store at a salary of $130 per month. They deposited their earnings in a joint bank account from which expenditures, personal and otherwise, were made. John contributed his entire earnings to the support of himself and Anna in the maintenance of their household and home.
Under statutes hereafter mentioned the compensation commissioner and, on appeal, the district court, found that at the time of John’s death Anna was a “partial dependent” and awarded death benefits in the amount of $12,000, together with funeral benefits in the sum of $450.
The employer and its insurance carrier concede the item for funeral benefits is proper, but appeal from the award of death benefits in the amount of $12,000. Their specifications of error are that the trial court erred (1) in finding that the decedent’s average annual earnings were $4,000; (2) in finding that decedent contributed $4,000 to the support of himself and his wife; (3) in interpreting the facts under the law of the case, and (4) in entering an award for death benefits in the amount of $12,000.
The death of the workman having occurred on February 6, 1957, the matter is governed by the provisions found in G. S. 1955 Supp., and all references are thereto unless otherwise indicated.
The pertinent portions of 44-510 read:
“The amount of compensation under this act shall be: . . . (2) Where death results from the injury, (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three (3) times his average yearly earnings, computed as provided in section 44-511 of the General Statutes of 1949 and any amendments thereto, but not exceeding twelve thousand five hundred dollars ($12,500) and not less than twenty-five hundred dollars ($2,500): . . . (b) If a workman does not leave any such dependents but leaves dependents in part dependent on his earnings, such percentage of the sum provided for total dependency in paragraph 2 (a) of this section as employee’s average annual contributions which the deceased made to the support of such dependents during the two (2) years preceding the injury bears to his average annual earnings during a contemporaneous period, during such two (2) years.”
Under these provisions, if a deceased workman leaves a dependent or dependents wholly dependent upon his earnings the award is to be in an amount equal to his average yearly earnings multiplied by three, but not exceeding $12,500; whereas if he leaves a dependent or dependents in part dependent upon his earnings the award is to be such percentage of the sum provided for total dependency as the employee’s contributions bore to his earnings during a contemporaneous period.
In other words, assuming that a workman’s average yearly earnings are $4,000 and he leaves a dependent or dependents wholly dependent upon his earnings, the award would be $12,000.
On the other hand, assuming his average yearly earnings are $4,000 and his average annual contributions to the support of a partial dependent or dependents are $4,000, the award would be the sum of $12,000, the same as in the case of total dependency. If, however, his average annual contributions to those partially dependent upon his earnings were $3,000, the award would be seventy-five percent of $12,000, or $9,000. If, however, he contributed only $1,000 of his earnings to those partially dependent upon him, the award would be twenty-five percent of $12,000, or $3,000.
As heretofore stated, the wife of this workman was employed at the time of his death, and under the facts was properly held by the trial court to be a partial dependent within the meaning of the statute. In fact, all parties concede that she was such.
■ ’ Because of her partial dependency appellants contend for a formula for arriving at an award based upon the earnings of both her ’and her husband, taking into consideration the “percentage” of her dependency.
The difficulty with this contention lies in the fact that it is con trary to the statute and prior decisions of this court. The award in the case of partial dependency is that percentage of the award for total dependency as the workman’s contributions bear to his earnings. (See Kelly v. Lassen Hotel Co., 161 Kan. 444, 168 P. 2d 527, in which the proposition is discussed in detail, and the recent case of Peterson v. Fairmont Food Co., 180 Kan. 271, 802 P. 2d 1001.)
In the Peterson case the widow, because of her earnings, was held to be a partial dependent. The average annual earnings of her deceased husband were $4,673.18. His entire earnings were contributed to the support of his family. The statute then in force (G. S. 1953 Supp. 44-510) limited a death award to $9,000 in the case of total dependency, and it was held that, following the formula set out in the Kelly case, the award should be the full $9,000 — in other words, because of the amount of the workman’s earnings the award in case of total dependency would have been the maximum amount ($9,000), and, since the workman contributed one hundred percent of his earnings toward the support of his dependents, the award in case of partial dependency would be the same amount.
Applying the rule announced in those decisions to the case before us brings about this result:
The workman’s average annual earnings were $4,000. Had his wife been wholly dependent upon his earnings the award, under 44-510 (2) (a), would be three times that amount, or $12,000. She was, however, a partial dependent, but the trial court found, and the finding is supported by evidence, that her husband contributed his entire earnings to the support of himself and his wife in the maintenance of their household and home. Therefore, under 44-510 (2) (b), the award would be one hundred percent of that due in the case of total dependency — that is, $12,000, the award which was made.
From what has been said it is clear that the award in this case was correct and that the judgment should be affirmed unless, as further contended by appellants, an improper basis was used in determining the amount of average yearly “earnings” of the deceased.
As heretofore stated, it is undisputed that during each of the two years prior to his death, and at the time thereof, his annual salary was $3,600, and he received a yearly bonus of $400, making a total of $4,000 per year. Out of this he paid his own automobile and personal expenses in connection with his duties as a grocery salesman and was not reimbursed therefor by his employer. He listed these business expenses as deductions on his income tax returns, and appellants therefore contend that his annual earnings were not $4,000, but were that amount less the items of business expense shown on the tax returns.
44-511 provides that whenever in the workmen’s compensation act the term wages is used it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident.
In Leslie v. Reynolds, 179 Kan. 422, 295 P. 2d 1076, the contract of hiring in force at the time of the accident included recompense for use of an automobile, and it was held that the term “money rate,” as used in the act, means all items of compensation agreed upon in a contract of hiring which are measurable in money and are recompense under the contract, and that the trial court properly ascertained and included the money rate for the use of the automobile in determining the average weekly wage of the workman.
Appellants argue, therefore, that as the furnishing of an automobile to an employee is considered as additional income, the expense of operating the automobile for business purposes in the case before us should be deducted from the amount of $4,000 in determining this workman’s actual yearly earnings.
In our opinion this contention is, for several reasons, untenable.
Under the contract of hiring the workman was to receive $4,000 per year. Any expenses incurred by him in the course of his employment were completely within his control and had no connection with the contract of employment — that is to say, so long as he performed the service of obtaining orders from customers within his territory he was fulfilling his contract of employment, and the money rate at which he was paid was fixed, irrespective of what methods he used in obtaining this result.
The proposition before us is not to be confused with the determination, for example, of the “net earnings” of a business, and rules applicable thereto are not in point. Under 44-511 tire “contract of hiring in force at the time of the accident” is the determining factor, and under the facts of this case the trial court was correct in holding that the workman’s yearly earnings were $4,000.
We repeat:
Had his wife been wholly dependent upon his earnings the award, under 44-510 (2) (a), would be three times that amount, or $12,000. She was, however, a partial dependent, but he contributed his entire earnings to the support of himself and his wife in the maintenance of their household and home. Under 44-510 (2) (b) the award in the case of partial dependency is that percentage of the award for total dependency as tire workman’s contributions bear to his earnings, and it follows that the award here would be one hundred percent of that due in tire case of total dependency— that is, $12,000,
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
Defendant (appellee) was arrested, tried and found guilty of violation of city ordinance No. 439 in the police court of Derby, and was fined $100. The district court of Sedgwick county, on appeal, found the defendant not guilty on the ground that the city had no statutory authority to enact the ordinance. The city of Derby (plaintiff, appellant), a city of the second class, reserved the legal question of the city’s statutory authority for appeal to this court. (G. S. 1949, 12-1102.)
The pertinent portions of the ordinance provide:
“Section 1: The practice of going in and upon private residences in the City of El Paso (Derby), Kansas, by solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences for the purpose of soliciting orders for the sale of goods, wares, and merchandise and/or disposing of and/or peddling or hawking the same is declared to be a nuisance and punishable as such nuisance as a misdemeanor.
“Section 2: Any person violating the provisions of this ordinance shall upon conviction thereof be fined not more than $100.00 (One Hundred Dollars) or imprisoned not more than 30 (thirty) days, or be both so fined and imprisoned in the discretion of the court.
“Section 3: The provisions of this ordinance shall not apply to religious, charitable or community service organizations.”
It was stipulated that defendant at all times pertinent to this action was and is an independent dealer for Air-Way Tranches, Inc., and that in such capacity she engaged in direct selling and demonstrating of Air-Way vacuum cleaners by calling at the homes of potential purchasers. On the morning of June 6, 1957, defendant called at several private residences in Derby, without invitation by the owners or occupants, for the purpose of demonstrating, soliciting orders for and selling Air-Way vacuum cleaners. Defendant at this time was acting as a solicitor and itinerant merchant and was not acting on behalf of any religious, charitable or community service organization. The evidence indicated, and the trial court so found, that defendants conduct at the home of the prosecuting witness was considerate, well-mannered and courteous; that she was not obnoxious or overly insistent.
Plaintiff contends here that it has statutory authority to pass the ordinance in question by reason of the general grant of police power found in G. S. 1949, 14-401 and G. S. 1957 Supp., 14-439, as well as the power to restrain and prohibit disturbances (G. S. 1949, 14-418) and the power to prevent and remove nuisances (G. S. 1949, 14-428).
Defendant contends, inter alia, that the ordinance is void on the ground that it is unreasonable, arbitrary and discriminatory because of the exemptions provided in section 3 thereof. Even if we were to assume that the city had the power to enact the ordinance under G. S. 1949, 14-401, there would still remain the question of whether section 3, which exempts solicitation, as defined in section 1, by religious, charitable and community service organizations, results in such an unreasonable and arbitrary discrimination as to render the ordinance invalid.
It is stated in McQuillins Municipal Corporations, 3rd ed., Vol. 5, § 18.09, p. 408:
“An ordinance to be reasonable and valid must be fair, impartial and uniform in its operation.”
McQuillins Municipal Corporations, 3rd ed., Vol. 5, § 18.11, p. 415, states:
“An ordinance enacted in the alleged or ostensible .exercise of any of the well-defined purposes of the police power must be general in its nature and applicable alike to all who may properly come within its purview. It cannot be sustained as an .exercise of that power if it is arbitrary and discriminatory. . . . Where an ordinance imposes penalties, it cannot make a particular act penal when done by one person and impose no penalty for the same act done under like circumstances by another. . . . Discrimination in the regulation of trade, business, industry or occupations, where there is no just basis for it germane to a lawful purpose, renders municipal legislation . . . unreasonable. . . ' [Emphasis supplied.]
See also 2 Dillon’s Municipal Corporations, 5th ed., § 593 (322).
We have stated that a distinction imposed by an ordinance, to be valid, must be reasonable and must rest upon some ground of difference fairly related to the object of the legislation. (City of Beloit v. Lamborn, 182 Kan. 288, 293, 321 P. 2d 177; Matheny v. City of Hutchinson, 154 Kan. 682, 121 P. 2d 227.)
It is apparent that the ordinance involved herein creates an unlawful classification, discriminatory in nature, which renders the ordinance invalid. Section 3 provides that the ordinance shall not apply to religious, charitable or community service organizations. There is no reasonable ground upon which this classification can be made. It bears no relation to the object and purposes of the ordinance. Its only effect is to permit one class to violate the provisions of the penal ordinance without penalty and to hold another class strictly responsible thereto. If the purpose of the ordinance is to protect the householder from uninvited intrusions against his peace and comfort and the possibility of the imposition of fraud, the exceptions in section 3 completely destroy such purpose. Certainly the knock on the door or the ring of the doorbell for the sale of goods, wares and merchandise by a solicitor for a religious, charitable or community service organization is as great a disturbance to the householder’s privacy and comfort as that by the commercial solicitor. Similarly, the danger of fraud, over-persistent selling methods and financial irresponsibility is as great in the activities of those which section 3 purports to exempt as in the activities of those covered by section 1.
In view of what has been said, the other contentions made by defendant regarding invalidity of the ordinance need not be discussed. Judgment of the trial court is affirmed.
It is so ordered.
Pbice, J., dissents. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for wrongful death resulting from a collision at the intersection of two unmarked county highways. From a general verdict and judgment in favor of the plaintiffs, defendants appeal.
Briefly stated, the petition, filed by decedent’s widow and son (plaintiffs, appellees), alleged that on April 24, 1955, decedent, Eldon Finch, was driving his farm truck east on a county highway approaching an unmarked intersection, and defendant (appellant) Larry Phillips was driving his father’s automobile north toward the same intersection; that decedent’s view of the north-south highway was obscured by a sharp decline 250 feet south of the intersection and by high weeds and a land terrace; that decedent entered the intersection at a cautious rate of speed at a time when defendant’s vehicle was some distance south thereof, but defendant was driving at such an excessive amount of speed (seventy miles an hour) that he crashed into the right rear side of decedent’s truck, causing it to overturn and resulting in severe personal injuries to the driver, from which he died five days later. Plaintiffs alleged that the death of Eldon Finch was the proximate result of and brought about by the negligence of defendant in failing to keep a proper lookout for other vehicles which might be approaching the intersection, in driving at such a dangerous and excessive rate of speed that he was unable to stop within the range of vision ahead, in not having his vehicle under proper and careful control under the alleged circumstances and conditions, and in failing and being unable to yield the right of way to a vehicle which had entered the intersection first. Plaintiffs prayed for judgment in a specified amount.
Defendants’ answer alleged contributory negligence on the part of decedent in failing to keep a proper lookout, in failing to yield the right of way to defendant, in failing to stop when he saw or should have seen defendant’s automobile approaching the intersection at the Same time, in failing to apply his brakes, and in failing to stop or turn aside when defendant’s automobile was within or nearly within the intersection.
Plaintiffs replied by way of a general denial.
There, is little dispute as to the facts. Rriefly summarized they are as follows:
The roads in question were dirt county roads of about the same width. On the morning of April 24, 1955, decedent left his home for that of a neighbor one and one-half miles east to assist in vaccinating some calves. Pie was driving his 1948 Chevrolet truck which was equipped with a red stock rack extending six feet above the truck bed. The truck and the rack weighed 7880 pounds. He proceeded east on the county road at a speed of approximately thirty miles an hour. His view to the south was obstructed by high weeds and sunflowers close to the ditch and in the field adjoining the east-west road. He entered the intersection at a speed of approximately twenty miles an hour.
On the same morning defendant Larry Phillips was driving his father’s 1949 Plymouth automobile north on the county road which intersects the east and west road on which decedent was driving. Defendant testified that he first saw the truck when it was 175 feet west of the intersection and he was approximately the same distance south thereof. He admitted driving forty-five to fifty miles an hour, and that about one hundred feet south of the intersection he applied his brakes with such force that all four wheels of the automobile slid a distance of ninety feet into the intersection. Defendant’s automobile struck the right rear wheel of decedent’s truck, knocking and forcing it a distance of twenty six and one-half feet to the north and east and into the ditch, where it overturned. The collision damaged the entire front end of defendant’s automobile and turned it partially around on the highway. Defendant got out of his car and removed decedent from the truck. Immediately thereafter and in the presence of two witnesses, the defendant stated to decedent that he was sorry, it was all his (defendant’s) fault. Defendant testified that he saw decedent enter the intersection first and tried to yield the right of way to him; that he was trying his best to stop after he first saw decedent; that it was almost a blind intersection. Defendant further testified that he applied his brakes about one hundred feet from the intersection to make sure he would not hit the truck.
A neighboring farmer testified that he was familiar with the intersection; that, “it was a bad corner, about as bad as there is”; that the view of one driving east on the east-west road would be obstructed to the south by a weed patch and sunflowers; that the weeds and sunflowers in the field grew “pretty close to the ditch on the east-west road” and it would be difficult to see oncoming traffic either way.
It is not necessary to relate further evidence in view of the errors specified in this appeal.
After presentation of the evidence by the respective parties the case was submitted to the jury, which returned a general verdict for the plaintiffs and answers to twelve special questions submitted to it by the court. Following the overruling of defendants’ post-trial motions, they appeal, asserting that the trial court erred in overruling their motion to set aside answers to certain special questions, in overruling their motion for judgment notwithstanding the general verdict, and in overruling their motion for a new trial.
As to defendants’ first contention, no useful purpose would be gained in setting out in detail all twelve questions and answers. The defendants object only to answers to questions seven, nine, eleven and twelve. It may be stated that question seven as it was framed was immaterial; likewise, any answer by the jury to the question as it was framed would have been immaterial. The answer, sought to be stricken, had no bearing either upon the answers to other special questions or upon the general verdict.
Question No. 9 reads: “Did the Finch [decedent] and Phillips [defendant] vehicles enter the intersection at substantially the same time? Answer: No.” This answer is sustained by the record and defendant Larry Phillips’ own testimony. Defendant testified that the decedent entered the intersection first.
Question No. 11 reads: “What, if any, negligence of Larry Phillips do you find was a proximate and contributing cause of the collision? Answer: Pie was not approaching corner at a cautious speed. He lost control of his car when he locked his brakes.” Defendants contend the answer was not within the issues of the case. There is no merit in this contention. The answer was clearly within the issues.
Question No. 12 reads: “What, if any, negligence of Finch [decedent] do you find was a proximate and contributing cause of the collision? Answer: Due to high weeds, speed of Phillips car & Rule, [instruction] No. 16, Finch is not negligent.” [Instruction No. 16: “Where the death of a person results from injuries suffered in an accident or collision and he is therefore unable to testify as to his conduct and actions immediately prior to the occurrence of the accident or collision, it is presumed that he was exercising due and ordinary care for his own safety and was free from negligence. This presumption of due and ordinary care is rebuttable and may be overcome by direct or circumstantial evidence and may be weighed by you in connection with all of the other evidence introduced and bearing upon this issue.”] Defendants contend that this answer should be stricken as it is contrary to special findings of the jury which show decedent guilty of contributory negligence. We find no merit in this contention.
The remaining findings, to which there was no objection, disclose that defendant Larry Phillips was 250 feet south of the intersection, traveling at fifty-five miles an hour, when he first saw decedent’s truck, which was 175 feet west of the intersection; that decedent at a point 150 feet west of the intersection was driving approximately thirty miles an hour and at the time of the collision approximately twenty miles an hour; and that decedent’s truck had entered the intersection first. The findings clearly disclose that the jury found defendant guilty of negligence which was the proximate cause of the injury, and exonerated decedent from contributory negligence.
Defendants’ second contention is that their motion for judgment notwithstanding the general verdict should have been sustained on the ground that the answers to special questions disclosed decedent was guilty of contributory negligence which barred his recovery. We find no merit in this contention. In our recent case of Long v. Foley, 180 Kan. 83, 91, 92, 299 P. 2d 63, we stated:
“It is true . . . that the rule in this jurisdiction is that ordinarily, and in the absence of convincing evidence to the contrary, it will be presumed that a deceased person exercised reasonable care for his own safety. (In re Estate of Modlin, 172 Kan. 428, 436, 241 P. 2d 692; Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508; Smith v. Bassett, 159 Kan. 128, 152 P. 2d 794; Eidson v. Railway Co., 85 Kan. 329, 116 Pac. 485; Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469; C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac 993.)
“. . . the presumption is always rebuttable and is overcome when there is proof to the contrary. (See Stroud v. McCusker, 175 Kan. 257, 261, 263 P. 2d 260; In re Estate of Modlin, supra; Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P. 2d 158; 61 C. J. S., Motor Vehicles, 240 § 512; 20 Am. Jur., Evidence, 164, 214 §§ 160, 217.)”
See also Walker, Administratrix v. Gerritzen, 179 Kan. 400, 406, 295 P. 2d 635.
In Blakeman v. Lofland, 173 Kan. 725, 731, 252 P. 2d 852, we held that in this state contributory negligence is never presumed, it must be established by proof and, where the plaintiffs evidence does not disclose his own contributory negligence as a matter of law, the jury has an absolute right to disbelieve and disregard all evidence tending to establish its existence.
In Miller v. Union Pac. R. Co., 196 F. 2d 333, 335 (Tenth Circuit) it was stated:
“Kansas has held without deviation that it will be presumed that a deceased person exercised reasonable care for his safety. This presumption rests upon the postulate that the love of life common to all prompts one to exercise care that injury or death will not come to him.”
In the instant case the defendants failed in their proof to rebut the presumption that decedent exercised due care for his own safety at the time and place in question. After a careful review of the entire record we find no merit in defendants’ claim that the trial court erred in overruling their motion for judgment notwithstanding the general verdict based on the ground that the special findings conflict with the general verdict and show the decedent guilty of contributory negligence as a matter of law. There is nothing in the answers to the special questions thát is inconsistent with the general verdict or that compels a judgment in favor of the defendants.
Defendants’ third contention is that the court erred in overruling their motion for a new trial. With the exception of two immaterial matters which warrant no discussion, the questions have been covered heretofore.
In view of what has been said, we find nothing in the record to warrant either entering judgment for defendants or granting a new trial. The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action brought for personal injuries resulting to the appellee (plaintiff) when plate glass windows from the front of appellant’s department store fell to the sidewalk and broke during a gusty wind.
The primary question presented is whether an intervening force, high and gusty wind, precludes plaintiff from recovering on the ground of negligence under the allegations of her petition and the evidence presented pursuant thereto. Appellant (defendant) asserts that the petition is drawn under the doctrine of res ipsa loqui-tur.
The plaintiff’s petition contained two causes of action, only the first of which is presently before the court. (A'demurrer was sustained as to the plaintiff’s evidence on her second cause of action and no appeal has been taken from that ruling.) Hereafter reference to the petition will be confined to the first cause of action.
At the time of her injury Nelva Fairbrother, plaintiff, lived in Haven, Kansas. On the evening of April 2, 1956, the plaintiff with another lady arrived in Hutchinson, Kansas, about 6:30 p. m., and commenced their shopping. During the course of her shopping the plaintiff walked on the public sidewalk which abuts the defendant’s place of business, known as Wiley’s Department Store, on the corner of East First Street and Main Street in the City of Hutchinson, Kansas. The petition alleged that the sidewalk abutting Wiley’s Store was heavily traveled by pedestrians during all retail business hours. It then specifically alleged the following which will serve to acquaint the reader with the facts in this case and to pinpoint the issue presented:
“II.
“In connection with its said business the defendant maintains along the Main Street side of its store and along the First Street side of its store, -a series of large show windows with glass covering the store side of such windows at the building line. Also in connection with the operation of defendant’s business, defendant maintains another row or series of windows corresponding in width and horizontal location with the show windows beneath, but of smaller vertical dimension and 'located a few inches above the lower show windows. All of the windows referred to are held in place by vertical and/or horizontal metal framework.
“III.
“Strong and gusty winds occur and are to be expected irregularly but frequently in and about Hutchinson, Kansas, and about the location of defendant’s place of business, and are a condition of the weather in and about Hutchinson and defendant’s place of business. Said winds are intensified at the location of defendant’s place of business by reason of the size, location and construction of the building in which said business is carried on.
“For a great many years various of the lower show windows and the windows immediately above the show windows have frequently broken and fallen out into the public street and sidewalk when such gusty winds have occurred, all because the materials, state of repair and construction of the windows has been of insufficient strength under the circumstances. At all times the proba bility of such winds and the probability of the breaking and falling out into the public street and sidewalk of such windows, unless due care were exercised under the circumstances, have existed.
“IV.
“The defendant, its officers, agents and employees have for many years had knowledge of all of the foregoing facts, and should have foreseen that such facts created danger to persons lawfully using the public street and sidewalk abutting defendant’s place of business and that injury to such persons so using the public street and highway would probably occur unless the defendant, its officers, agents and employees took due care under the circumstances to inspect and. maintain the windows hereinabove described in such manner as to prevent their breaking and falling out into the streets and sidewalks; but the defendants have failed to exercise due care under the circumstances in the inspection and maintaining of said windows.
“V.
“All knowledge and information concerning the construction, inspection and maintenance of all of said windows, and all control of the construction, inspection and maintenance of said windows has at all times been in the exclusive possession of defendant, its officers, agents and employees, but none of such knowledge and no control of such matters is, or has been, in the possession of plaintiff.
“VI.
“On Monday, April 2, 1956, most of the retail business establishments in the city of Hutchinson, Kansas, including the defendant store, remained open for regular business until 8:30 P. M. of said day. At about 7:15 P. M. of said day plaintiff was walking on the public sidewalk abutting defendant’s store on Main Street, Hutchinson, Kansas. At that time a gusty wind, similar to those of common occurrence in the vicinity as described in the foregoing, blew through the business district of Hutchinson, Kansas, in the vicinity of defendant’s store. At that time and for a long time previously, the defendant, its officers, agents and employees were, and had been, negligent in failing to properly construct, inspect and maintain the windows described in the foregoing. The particular acts and omissions of defendant, its officers, agents and employees constituting such negligence in the construction, inspection and maintenance of said windows is not known to plaintiff, and plaintiff had no control over such matters; but all such information and control was at all times material, and now is, in the possession of, or under defendant, its officers, agents and employees. At that time and place the glass and a part of the metal framework holding the glass in the south window on the Main Street side, in the higher row of windows, and also the glass in the large window immediately south of the west entrance to the store, became loosened, broken and detached from the building and fell to the sidewalk and upon the plaintiff causing her severe personal injuries as hereinafter more particularly described; and such occurrence was caused proximately by the aforesaid negligence of defendant, its officers, agents and employees in failing to so construct, inspect and maintain said window and windows as to prevent such occurrence and injury to plaintiff from happening under the circumstances; and said occurrence and injury to plaintiff would not have happened in the absence of negligence on the part of defendant, its officers, agents and employees.
“VII.
“As a proximate result of the aforesaid negligence of defendant, its officers, agents and employees plaintiff’s left leg was badly cut and her left achilles tendon was entirely severed. Plaintiff’s left wrist was cut. . . .’’(Emphasis added.)
Further allegations relate to plaintiff’s injury and the damages suffered which are immaterial to this appeal.
The defendant among other things specifically denied “that it was guilty of any of the acts of negligence as alleged in the First Cause of Action” of the plaintiff’s petition.
The plaintiff through counsel in her opening statement reasserted the allegations of her petition following which the appellant moved the court for judgment in favor of the defendant on the first count of plaintiff’s petition for the reason that “the opening statement and the pleadings show the plaintiff’s action is based on the theory of res ipsa loquitur and that under the statement of counsel the doctrine of res ipsa loquitur does not apply in this case because there is an outside intervening force shown.”
The trial court overruled this motion and the case proceeded to trial before a jury. At the close of plaintiff’s evidence the defendant demurred to the evidence of the plaintiff on the first count in her petition for the reason “that the evidence fails to establish a cause of action against the defendant, and for the further reason that the evidence of the plaintiff has shown an intervening proximate cause of the injury to plaintiff which eliminates the right of the plaintiff to recover on the doctrine of res ipsa loquitur.”
This demurrer was overruled by the trial court. The defendant did not rest upon the demurrer but proceeded to present its evidence following which and in due course the jury was discharged for the reason that it was unable to agree upon a verdict. Appellant has not seen fit' to abstract its evidence and appellee has not supplied it in her counter abstract.
The appellant properly perfected its appeal from the foregoing adverse rulings specifying as error (1) the overruling of its motion for judgment on plaintiff’s opening statement, and (2) the overruling of defendant’s demurrer to the evidence of plaintiff in support of her first cause of action.
It should here be noted that the pleadings of the plaintiff were never attacked by a motion of the defendant. The attack was first made after the opening statement, not because of any substantial variance between the opening statement and the plaintiff’s pleadings, but for the specific reason above quoted.
A motion for judgment on the opening statement will not be sustained unless in the making of such statement it appears the plaintiff has admitted facts which necessarily and absolutely preclude her recovery upon any of the issues made by the pleadings. (Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899; Rodgers v. Crum, 168 Kan. 668, 215 P. 2d 190; and Hengel v. Thompson, 176 Kan. 632, 272 P. 2d 1058.)
The question to be answered, therefore, resolves into whether plaintiff has admitted facts which preclude her recovery. Inasmuch as the rule with respect to a demurrer to the evidence (Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P. 2d 1192; Haga v. Moss, Administrator, 181 Kan. 171, 311 P. 2d 281; and Binder v. Local Union No. 685, 181 Kan. 799, 317 P. 2d 371) is somewhat similar to the rule governing the motion for judgment on the opening statement, the question which permeates the entire case is whether the intervention of high and gusty wind as a factor in this case — in (1) plaintiff’s pleading, (2) her opening statement, and (3) her evidence — will absolve the defendant of negligence on the ground that plaintiff has shown a superseding cause which relieves defendant from liability.
The burden of appellant’s argument throughout the case is that the appellee alleged, admitted and proved an intervening cause, the wind, which was the proximate cause of her injury. Appellant’s first position is that appellee framed her first cause of action upon the theory of res ipsa loquitur and that such action cannot be maintained when it is shown that an outside intervening force caused the event which resulted in a claimed injury, citing Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77. We need not here be concerned with the Stroud case or any distinctions which may or may not be drawn for the reasons hereafter stated. In our opinion the allegations of the first cause of action in the plaintiff’s petition are adequate, when liberally construed, to state a cause of action on the theory of ordinary negligence. True, some of thé language contained therein may lead to the impression that the pleading was framed on the doctrine of res ipsa loquitur, but it is apparent that the appellant in its answer did not even regard the petition as alleging a cause of action on the theory of res ipsa loquitur since it specifically denied the “acts of negligence as alleged” in the plaintiff’s first cause of action. Those portions of plaintiff’s petition from which it is indicated that specific acts of negligence are pleaded have been italicized.
The petition was specific in describing the windows which became loosened, broken and detached from the building and fell to the sidewalk and upon the plaintiff causing her injuries. The petition alleged that the defendant failed to exercise due care under the circumstances — in failing to so construct, inspect and maintain the windows as to'prevent such occurrence and injury to the plaintiff from happening under the circumstances. Construed with other allegations the plaintiff specifically alleged that the defendant failed to exercise due care in that:
(a) The defendant failed to properly construct the windows which the defendant knew to be of insufficient strength to withstand winds which frequently occurred;
(b) The defendant failed to properly inspect the windows which the defendant knew to be of insufficient strength to withstand winds which frequently occurred; and
(c) The defendant failed to properly maintain the windows which the defendant knew to be of insufficient strength to withstand winds which frequently occurred.
Plaintiff’s further allegations that “All knowledge and information concerning the construction, inspection and maintenance of all of said windows, and all control of the construction, inspection and maintenance of said windows has at all times been in the exclusive possession of defendant,” and that “The particular acts and omissions of defendant . . . constituting such negligence in the construction, inspection and maintenance of said windows is not known to plaintiff,” were frank disclosures why plaintiff could not be more definite and certain. Specific acts were already alleged with as much certainty as was available to the plaintiff. Having alleged a cause of action upon the theory of ordinary negligence, we need not treát appellant’s contention that a special rule is applicable to res ipsa loquitur cases where there is an intervening cause.
The plaintiff’s evidence was consistent with the allegations of her petition. As viewed on demurrer the testimony of the defendant’s officers, P. V. Wiley and Robert E. Wiley, called as witnesses for the plaintiff, disclosed that the windows were of insufficient strength because they had frequently broken out and had fallen to the sidewalk over the years as a result of the wind — all without any change whatever in the construction or installation of the windows over a period of at least 25 years.
The following is testimony of P. V. Wiley:
“Q. To your knowledge how long was that same type of glass, thickness of glass, in those windows used?
“A. I think the same type of glass has always been used on those windows.
“Q. That’s at least as far back as you have been connected with the business?
“A. That’s right.
“Q. So in 1955, then, some of these same type of windows have gone out due to wind. Same kind of windows?
“A. That is correct.
“Q. Do you have among the pieces of equipment used in connection with your display windows a type of padded brace?
“A. We do.
“Q. And what is the purpose of that padded brace?
“A. To protect the windows during wind.
“Q. Those are kept available for all of the display windows?
“A. Right.”
Robert E. Wiley testified:
“Q. Would you say that on the basis of your experience, that such damage or breaking out of windows, to your knowledge, occurs as often as once every two or three years on an average? I am not speaking of an exact point of time, but an average.
“A. I would say probably that that might be fairly close to it. That’s a little hard to say.
“Q. Let me ask you this, Mr. Wiley, whenever you have knowledge of a high wind is there some concern among the officials and employees of the store about the windows at any time there is a high wind in the area?
“A. If it is an extremely strong wind, what you would call a higher than average wind, yes.
“Q. You do have concern about the fear that some windows might go out?
“A. The possibility is always there, of course.
“Q. Are you also familiar with the braces that are available and ready?
“A. Yes, sir.
“Q. Under what circumstances are they put into position, usually?
“A. At the discretion of our display manager, I believe, whenever he feels that the windows might develop an undue vibration.
“Q. And the purpose of that is to protect against the effects of wind?
“A. Yes.”
The second position taken by the appellant is that the gusty wind which caused the windows to become loosened and fall to the sidewalk was an “Act of God” or “vis major.”
It must be conceded that an occurrence rising to the dignity of an “Act of God” or “vis major” will shield a defendant from liability. One is not required to anticipate such phenomena, since their effects cannot be prevented by any reasonable means, but not every violence of nature rises to such dignity. In Garrett v. Beers, 97 Kan. 255, 155 Pac. 2, it is stated in syllabus ¶ 2:
“An ‘act of God’ as known in the law is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent.”
In the Garrett case this court held that a flood caused by a heavy and protracted rain no greater than had fallen “many a time before” within the duration of a man’s experience is not such an “Act of God” as will excuse one who changes the natural course of a stream into a new channel which is inadequate to carry off its waters without damage to neighboring property.
The law books are full of cases where human negligence and some force of nature have concurred to produce an accident and injury, and where the contributing factor of the natural force, such as lightning, wind, or the like, has been held to be no excuse for the concurrent human negligence. (Lewis v. Street Railway Co., 101 Kan. 673, 168 Pac. 856.)
In Kansas City v. King, 65 Kan. 64, 68 Pac. 1093, the flood of 1892 was unusual but such as had occasionally occurred and which the city should have anticipated and provided against. In McKinley v. Railway Co., 113 Kan. 550, 215 Pac. 301, a severe blizzard was not unprecedented so that it could be found, in effect, that reasonable foresight, prudence, diligence and care could have anticipated if and prevented its effects. In Richards v. Kansas Electric Power Co., 126 Kan. 521, 268 Pac. 847, a stroke of lightning caused damage by killing a man because defendant failed to install sufficient ground wires and the negligence was not excused. In Meecke v. Morguies, 128 Kan. 423, 278 Pac. 45, a skylight improperly repaired and fastened was blown in by the wind and the court held the wind was not sufficient to excuse plaintiff for his negligence. (See, also, Restatement of Law, Torts, Negligence, § 302, p. 814.)
It may be generally stated that the defendant is not relieved of liability for negligence on the excuse that the “proximate cause” was some “Act of God,” such as gusty wind in the instant case, where the so-called “Act of God” would not have wrought the injury but for the human negligence which contributed thereto. The case of Berry v. Shell Petroleum Co., 141 Kan. 6, 40 P. 2d 359, quotes Harper on Torts (sec. 119, p. 270), on the subject of legal consequences of misconduct as follows:
“ ‘The rule may be generalized, that where harmful consequences are brought about by intervening and independent forces the operation of which might have been reasonably foreseen, there will be no break in the chain of causation of such a character as to reheve the actor from liability. The source of the intervening agency is immaterial, whether from nature, animate or inanimate, or from human beings.’ ” (p. 7.)
A recent decision of this court dealing with the subject of an independent and efficient intervening cause in negligence actions is Steele v. Rapp, 183 Kan. 371, 327 P. 2d 1053. There a divided court held that the intervention of a negligent act by a third person was foreseeable and the original actor was not relieved of liability. There many of the decisions of this court were reviewed. Here, however, we are dealing with a force of nature as distinguished from the negligent act of a third person.
We have no difficulty in concluding that a natural phenomena, such as the gusty wind involved in this case, is not a superseding cause which relieves the defendant of liability where the allegations are sufficient and there is evidence which, if believed by a jury, would indicate that the defendant should have anticipated the occurrence of strong and gusty winds and foreseen that its failure to exercise reasonable prudence, diligence and care in the construction, choice of materials and maintenance of its windows commensurate with the reasonably foreseeable effects of such wind would probably cause injury to pedestrians lawfully using the abutting sidewalk.
The pleadings and the opening statement made allegations in accordance with the foregoing and the evidence tending to support them was strong.
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The opinion of the court was delivered by
Fatzer, J.;
The defendant was charged with evading or attempting to evade the payment of tax or duty on alcoholic liquor by having in his possession a bottle of alcoholic liquor upon which the tax imposed by the state of Kansas had not been paid and upon which there was no stamp or mark required by law, in violation of G. S. 1957 Supp. 41-407. He entered a plea of not guilty, waived trial by a jury, and consented to an immediate trial by the district court. Having been found guilty as charged, he has appealed from the judgment of conviction and from orders overruling his motions to quash the information, for his discharge following the filing of the stipulation of facts, and for a new trial.
The evidence was stipulated by the parties, and may be summarized as follows: On June 13, 1957, the defendant purchased a half gallon of White Port wine in Missouri and walked with it across the state line into the city of Mulberry, Kansas, where he was arrested by agents of the Director of Alcoholic Beverage Control. The wine was an alcoholic liquor as defined by G. S. 1957 Supp. 41-102 (2), and was possessed by the defendant for his personal use in this state.,
Both the federal and Missouri liquor tax had been paid on the wine, but no tax had been paid on it to the state of Kansas prior to or at the time of defendant’s arrest, and no stamp or mark evidencing the payment of the gallonage tax to the state of Kansas was affixed to the bottle or container.
Under the Kansas Liquor Control Act and regulations adopted by the Director of Alcoholic Beverage Control, all tax stamps evidencing the payment of the gallonage tax on alcoholic liquor must be purchased by the manufacturer or licensed distributor from the Director and affixed to each original package before it may be removed from the owner’s bonded warehouse for sale at retail in the state. Licensed retailers are required to purchase all alcoholic liquor from a licensed distributor who must maintain a bonded warehouse in the state. It was impossible for the defendant to pay the gallonage tax directly to the state of Kansas, or to purchase a tax stamp to affix to the bottle containing the alcoholic liquor. No method is provided by the act by which a consumer or possessor of alcoholic liquor for his personal use can pay the gallonage tax; the only way he can increase tax revenues from alcoholic liquor is by purchasing the beverage from a licensed retailer in the state, in which case the tax is undoubtedly reflected in the sale price.
The defendant specifies error in four particulars which he has briefed under two basic contentions: First, that the provisions of G. S. 1957, 41-407 are inapplicable to him under the agreed facts, and second, that if the statute is applicable to those facts, it is void and unconstitutional being in violation of the commerce clause (Art. 1, Sec. 8, Clause 3) and the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States, and of Sections 1 and 15 of the Bill of Rights of the Constitution of Kansas.
As preliminary to discussing the defendant’s contentions we note that when G. S. 1957 Supp. 41-407 was originally enacted in 1949 (G. S. 1949, 41-407) the section was commonly referred to as the “two quart” provision of the act, which made legal the possession and transportation of not to exceed two quarts of alcoholic liquor for the personal use of the possessor, his family and guests, upon which the tax imposed by the act had not been paid or on the containers of which the Kansas mark and stamp required by the act had not been affixed. In other words, any person could purchase not to exceed two quarts of alcoholic liquor in Missouri, or in any other state, and legally possess the same for personal use in this state without the Kansas tax stamp being affixed to the containers. The section, however, made it unlawful, following the governor s proclamation placing the licensing and taxing provisions of the act into effect, to possess more than two quarts of alcoholic liquor without the Kansas tax stamps or marks being affixed to the containers. (State v. Sumner, 169 Kan. 516, 219 P. 2d 438; State v. Wilson, 169 Kan. 659, 220 P. 2d 121.) In the Wilson case the defendant was charged with possessing more than two quarts of alcoholic liquor without having the Kansas tax stamp affixed to each bottle or cask. In the opinion it was said:
“. . . The gravaman of the offense charged is not possession, but possession of in excess of two quarts of alcoholic liquor without Kansas tax stamps affixed to the containers . . (1. c. 661.)
At its regular 1957 session the legislature amended G. S. 1949, 41-407 and removed the “two quart” provision (G. S. 1957 Supp. 41-407 [Ch. 291, L. 1957]). The title to the 1957 act reads:
"An Act relating to alcoholic liquor, making it unlawful to possess alcoholic liquor in certain cases and providing penalities for violations thereof; amending section 41-407 of the General Statutes of 1949, and repealing said original section.” (Emphasis supplied.)
That part of the amended section (G. S. 1957 Supp. 41-407) the defendant was charged with violating, reads:
“It shall be unlawful for any person (1) to evade, or attempt to evade, the payment of tax or duty on any such alcoholic liquor, in any manner whatever and upon conviction thereof, in addition to the penalty prescribed for the violation of this act, such person shall forfeit and pay, as a part of costs in such action, double the amount of the tax so evaded or attempted to be evaded; (2) to have in his possession any cask or package of such liquor, without having thereon each mark and stamp required therefor by law; and such cask or package not having the mark or stamp as aforesaid, shall be forfeited to the state of Kansas . . .” (Emphasis supplied.)
With respect to his first contention, the defendant maintains the Sumner case, supra, is inapplicable to the instant case and directs attention that the point there involved was the quantity of alcoholic liquor which might be legally possessed before the licensing and taxing provisions of the act were placed into effect. He argues that the Wilson case, supra, is likewise inapplicable and points out that it was decided while the “two quart” provision was in effect, and asserts that neither the applicability nor the constitutionality of the act was pertinent, for reasons stated in the opinion, nor urged as a ground for decision.
The defendant insists that G. S. 1957 Supp. 41-407 makes it unlawful to evade or attempt to evade payment of tax or duty on any “such alcoholic liquor” or to possess any cask or package of “such liquor” without having thereon each mark or stamp required by law; that the terms “such alcoholic liquor” and “such liquor” as used in the statute apply only to alcoholic liquor subject to a Kansas tax imposed by other provisions of the act (G. S. 1957 Supp. 41-501, 41-502; G. S. 1949, 41-503, 79-4101, 79-4102); that the only tax assessed upon alcoholic liquor is the gallonage tax and the 2 percent enforcement tax which is collected by licensed retailers; that the gallonage tax is assessed upon the privilege of engaging in business as a manufacturer or as a licensed distributor, which shall be paid to the Director only once and shall be collected upon alcoholic liquor in the bonded warehouse of such licensees by the purchase of tax stamps from the Director to be affixed to each original package prior to withdrawal for sale to other distributors or to licensed retailers (G. S. 1949, 41-401, 41-402, 41-403, 41-504; G. S. 1957 Supp. 41-502); that since the alcoholic liquor he possessed had never passed through the state’s system of controlling the traffic in alcoholic liquor and was never taxed in the hands of a manufacturer, licensed distributor or licensed retailer, it was never subject to a Kansas tax; consequently, he cannot be guilty of evading or attempting to evade the tax.
This court is not' persuaded by the defendant’s contention. We are first admonished by the rules of statutory construction set out in State v. Sumner, supra, which interpreted certain sections of the Kansas Liquor Control Act, that:
“In order to ascertain the legislative intent courts are not permitted to consider only a certain isolated part or parts, of an act but are required to consider and construe together all parts thereof in pari materia.
“It is the duty of courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions therein contained.
“When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.” (Syl. §§1, 2 and 3.)
The term “alcoholic liquor” is defined in G. S. 1957 Supp. 41-102 (2) as follows:
“Alcoholic liquor” includes the four varieties of liquor as defined herein, namely, alcohol, spirits, wine and beer, and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer, and capable of being consumed as a beverage by a human being, but shall not include any beer or cereal malt beverage containing not more than three and two-tenths percent (3.2%) of alcohol by weight.”
Although the first sentence of G. S. 1949, 41-1103 indicates that the unrestricted possession and transportation of alcoholic liquor was legal after the effective date of the act, March 9, 1949, other provisions of the act contain limitations with respect .thereto. G. S. 1949, 41-104 reads, in part:
“No person shall manufacture, bottle, blend, sell, barter, transport, deliver, furnish or possess any alcoholic liquor for beverage purposes, except as specifically provided in this act: Provided, That nothing contained in this act shall prevent: (1) The possession and transportation of alcoholic liquor for the personal use of the possessor, his family and guests except that . . . the provisions of section SO [41-407] of this act shall be applicable to all persons
Despite many notions to the contrary, constitutional prohibition was not wholly repealed or rejected by the people of Kansas as a result of their mandate at the general election on November 8, 1948. (State v. Larkin, 173 Kan. 112, 118, 243 P. 2d 686.) While the act may not be perfect in every respect, it is crystal clear that its basic premise was one of total prohibition of the manufacture, sale, barter, transportation, delivery or possession of alcoholic liquor as a beverage, unless otherwise specifically provided in the act. As is noted, it specifically makes legal the possession of alcoholic liquor for the personal use of the possessor, his family and guests, but at the same time conditions such possession and use with the provisions of G. S. 1957 Supp. 41-407, making it unlawful to evade or attempt to evade the payment of tax or duty on “such alcoholic liquor” and to have possession of any cask or package of “such liquor” without each Kansas mark or stamp being affixed thereon as required by law. When G. S. 1949, 41-104 and G. S. 1957 Supp. 41-407 are construed together, which we are enjoined to do (State v. Sumner, supra), we are of the opinion that the terms “such alcoholic liquor” and “such liquor” as used in the latter section refer not only to alcoholic liquor which passes through the regulatory channels from a manufacturer to a licensed distributor and licensed retailer pursuant to the act, but refer also to any alcoholic liquor possessed within the state for the personal use of the possessor, his family and guests, regardless of where or from whom such liquor was acquired. (State v. Sumner, supra; State v. Wilson, supra.) Unless the act is so construed, the first part of G. S. 1957 Supp. 41-407, i. e., “It shall be unlawful . . and the first part of G. S. 1949, 41-104, i. e., “No person shall . . . possess . . . any alcoholic liquor . . . except as specifically provided in this act . . ” are rendered entirely meaningless. Moreover, this conclusion is supported by G. S. 1957 Supp. 41-502 which provides that the payment of the gallonage tax (G. S. 1957 Supp. 41-501) shall be evidenced by tax stamps or crowns “to he affixed to each original package of alcoholic liquor for use in this state.”
In its comprehensive scheme of regulating, licensing and taxing alcoholic liquor from the time of its manufacture or importation into the state until its ultimate sale by a licensed retailer for use and-consumption, the manifest purpose of the legislature was to channelize the. liquor traffic; to minimize the commonly attendant evils; also, to facilitate the collection of revenue. To this end the manufacture, sale, transportation, and possession are permitted only under carefully prescribed conditions (G. S. 1949, 41-104), and subject to constant control by the state (G. S. 1949, 41-208). All phases of the traffic are declared illegal unless definitely authorized by the act (G. S. 1949, 41-104). It was clearly intended that, except for the possession and use of alcoholic liquor referred to in G. S. 1949, 41-104 (2), (3), (4), (5) and (6), and G. S. 1957 Supp. 41-501 (4), (5) and (9), it shall be unlawful for any person to possess alcoholic liquor for his personal use in Kansas without having the Kansas tax stamps affixed to containers thereof (G. S. 1949, 41-104; G. S. 1957 Supp. 41-407, 41-501, 41-502; State v. Wilson, supra). Since Kansas tax stamps are affixed only to alcoholic liquor purchased from licensed retailers, it is evident that possession of alcoholic liquor by any person for use in this state acquired from any other source constitutes a violation of G. S. 1957 Supp. 41-407. Furthermore, the effect of the act is to require that all alcoholic liquor for use in this state bear its proportionate share of the gallonage tax. Had the defendant purchased the wine from a licensed retailer, taxes at the rate of 20 cents would have been paid to the state. His purchase of it in Missouri and possession in Kansas for personal use constituted an evasion of the amount of that tax. The fact that the mechanics of collecting the tax are such that the defendant could not directly pay that amount does not make its evasion any less a crime.
The only significant difference between the 1957 amendment and the act as originally enacted, when construed by State v. Sumner, supra, and State v. Wilson, supra, is that the legislature has now prohibited the possession of all untaxed and unstamped alcoholic liquor for personal use in this state.
In view of the foregoing the defendant’s contention that G. S. 1957 Supp. 41-407 is inapplicable to him cannot be sustained.
The defendant contends that if G. S. 1957 Supp. 41-407 is applicable to the agreed facts it is a revenue or taxing measure designed solely to aid or increase the collection of the gallonage tax and has no relation to the control and regulation of the liquor traffic, and, that as such, it violates the commerce clause and the due process and equal protection clauses of the 14th Amendmnt to the Constitution of the United States. The point is not well taken.
Section 2 of the 21st Amendment to the Constitution of the United States provides:
“The transportation or importation into any State, Territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
It has been repeatedly held that under the 21st Amendment a state may absolutely prohibit the manufacture, transportation, importation, sale or possession of alcoholic liquors irrespective of when or where produced or obtained, or the use to which they are to be put, and may adopt measures reasonably appropriate to effectuate those inhibitions and exercise full police authority in respect to them, unfettered by the due process clause, the equal protection clause or the commerce clause. (State Board v. Young's Market Co., 299 U. S. 59, 81 L. ed. 38, 57 S. Ct. 77; Mahoney v. Triner Corp., 304 U. S. 401, 82 L. ed. 1424, 58 S. Ct. 952; Brewing Co. v. Liquor Comm’n, 305 U. S. 391, 83 L. ed. 243, 59 S. Ct. 254; Finch & Co. v. McKittrick, 305 U. S. 395, 83 L. ed. 246, 59 S. Ct. 256; Ziffrin, Inc. v. Reeves, 308 U. S. 132, 84 L. ed. 128, 60 S. Ct. 163; Crane v. Campbell, 245 U. S. 304, 62 L. Ed. 304, 38 S. Ct. 98; United States v. Renken, 55 F. Supp. 1.) This greater power to prohibit includes the lesser power to permit under definitely prescribed conditions. (Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298, 62 L. ed. 299, 38 S. Ct. 96; State Board v. Young’s Market Co., supra; Ziffrin, Inc. v. Reeves, supra.) In State Board v. Young’s Market Co. the supreme court declared:
“The words used [the 21st Amendment] are apt to confer upon the State the power to forbid all importations which do not comply with the conditions which it prescribes.” (p. 62.)
“Surely the State may adopt a lesser degree of regulation than total prohibition.” (p. 63.)
Assuming, arguendo, that G. S. 1957 Supp. 41-407 was designed only to effectuate the collection of taxes and had no relation to the protection of public health, safety or morals, the defendant’s contention must fail. Under the 21st Amendment a state may discriminate in favor of alcoholic liquor processed within the state as against alcoholic liquor processed elsewhere and such discrimination is permissible although it is not incident to reasonable regulation of the liquor traffic nor to the protection of the health, safety or general welfare of its citizens. (Finch & Co. v. McKittrick, supra; Mahoney v. Triner Corp., supra; Brewing Co. v. Liquor Comm'n, supra.)
We find nothing in Murphy v. Love, 249 F. 2d 783, cited by the defendant, which compels a different conclusion. In that case the alcoholic liquor was transported from Missouri to the Fort Leavenworth Military Reservation in Kansas, exclusive jurisdiction of which had been ceded by Kansas to the United States. The court correctly applied the rule applicable to interstate transportation of alcoholic liquor through the territorial boundaries of a state. (Duckworth v. Arkansas, 314 U. S. 390, 86 L. ed. 294, 62 S. Ct. 311; Carter v. Virginia, 321 U. S. 131, 88 L. ed. 605, 64 S. Ct. 464.) The instant case involves alcoholic liquor possessed for personal use within Kansas.
The defendant urges that it is a denial of due process and equal protection of the laws under Section 1 of the Bill of Rights of the Constitution of Kansas for criminal penalties to be imposed for the possession of alcoholic liquor on which the Kansas gallonage tax had not been paid, where no method is provided by which he could pay the tax directly to the state. The point is not well taken. It has long been recognized in this state that alcoholic liquor occupies a special position with respect to exercise of the police power. In State v. Durein, 70 Kan. 13, 80 Pac. 987, this court declared:
“The commodity in controversy is intoxicating liquor. It is not corn, or rye, or hops, or grapes, or any other product, the cultivation and use of which minister to the normal and necessary wants of mankind; nor is it any solvent, preservative, essence, tincture, chemical, drug or compound used in the arts or sciences which does not possess the character and quality of intoxicating liquor. But the article is one whose use, even moderately, is taken into account by actuaries of insurance companies, and which bars employment in classes of service involving prudent and careful conduct; an article conceded to be fraught with such contagious peril to society that it occupies a different status before the courts and the legislatures from other kinds of property, and places traffic in it upon a different plane from other kinds of business. There is, therefore, no question in this case of the power of the legislature to say generally what beverages men shall drink, or what they shall eat or wear, or when they shall arise or retire. The discussion must deal solely with a distinct article of trade, which already has earned a certain measure of reproach among civilized peoples.” (1. c. 19, 20.)
The right to possess alcoholic liquor is qualified and is subject to the police power of the state. Thus, in Johnson v. Reno County Comm'rs, 147 Kan. 211, 75 P. 2d 849, the court said:
“Having the police power to forbid the sale of [intoxicating liquor] entirely, it, of course, had the power to regulate its sale. (State v. Nossaman, 107 Kan. 715, 193 Pac. 347; Little v. Smith, 124 Kan. 237, 239, 257 Pac. 959.) Having the power to regulate the sale, it had the authority to determine how, in its judgment, the desired regulation could be most effectively accomplished.” (1. c. 216, 217.)
As has been indicated, G. S. 1957 Supp. 41-407 is part of a comprehensive scheme for the control and regulation of the liquor traffic. The fact that it is also- a revenue producing measure does not deprive it of its regulatory character (Johnson v. Reno County Comm'rs, supra, p. 216). The statute is a legitimate method of effectuating the substantive policies of controlling the distribution, taxation, and sale of alcoholic liquor within the state (Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 S. Ct. 273). Moreover, insofar as it effectuates collection of taxes, it is evident that the legislature exercised the police power of the state in determining its policy that the liquor traffic bear the financial burden of carrying out the regulatory provisions designed to protect the community from the evils arising out of it.
We have examined all the authorities cited by the defendant and others not included in the briefs. They are not decisive of the questions involved. No extended discussion need be made that the statute violates Section 15 of the Bill of Rights. We answer the contention with the statement that no showing has been made that it does.
We have carefully examined the record and find no reversible error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to cancel a warranty deed; for an accounting between the parties, and for possession of certain personal property. Trial was by the district court which found generally for the plaintiff, and the defendant has appealed.
The plaintiff is a widower over 65 years of age; the defendant is a married woman in her late twenties, and both reside in Topeka.
Plaintiff’s petition was in three causes of action. The first was to set aside a deed to real estate located at 1434 Randolph, Topeka, which plaintiff conveyed to defendant as security for an advancement of cash to enable him to settle two lawsuits pending against him; the second was to recover possession of a diamond ring plaintiff had left with defendant for safekeeping upon her promise to return it upon request, and the third was to recover possession of an electric vacuum cleaner and an Ironrite ironer plaintiff purchased and which defendant persuaded him to have delivered to her residence for her use upon her promise to return them whenever he requested.
In her answer and cross-petition defendant admitted plaintiff conveyed the real estate to her and alleged she paid $6,000 in cash as consideration therefor. Her answer also admitted plaintiff purchased the two electrical appliances, but alleged they were given to her in satisfaction of a pre-existing debt for meals which she had furnished the plaintiff. Her cross-petition contained three causes of action. The first was for meals she had served plaintiff at an agreed price of $1 per meal between July 15,1955, and June 6,1956, totaling in the sum of $261. The second was to recover on a promissory note plaintiff had executed and delivered to her on May 15, 1956, in the sum of $350, with interest thereon from date at five percent per annum. The third was to recover the reasonable rental value of the Randolph Street property from July 25, 1956, to March 25, 1957, at $85 per month for eight months, totaling $680. Plaintiff’s reply and answer denied all the allegations of the defendant’s answer and cross-petition.
With the issues thus formed, the district court found that the deed given by the plaintiff to the defendant was not an absolute conveyance but was intended only as security for the repayment of such advances as the defendant would pay to the plaintiff; that the defendant made one advancement on May 15, 1956, in the sum of $350; that the deed should be set aside as an absolute conveyance and title to the real estate be declared to be vested in the plaintiff free and clear of any right, title or interest of the defendant except that the plaintiff repay to defendant the amount of the advancement with interest; that the defendant be declared to have a lien against the real estate in the amount of $350 to be subject to foreclosure by the defendant in the event plaintiff failed to make repayment; that the defendant be ordered to return to the plaintiff the diamond ring, the electric sweqper and the Ironrite ironer, and that until those articles were returned, plaintiff was not required to repay the $350.
On May 15, 1957, judgment was rendered in harmony with those findings. The appeal is from that judgment. No motion for a new trial was filed and defendant’s specification of error is quoted in full:
“The evidence in this action was insufficient to support judgment cancelling defendant’s deed and giving plaintiff possession of diamond ring, vacuum cleaner and ironer and in denying defendant’s Cross Petition, wherein defendant sought recovery of value of meals supplied plaintiff, or in the alternative, for possession of two household appliances.”
Pursuant to G. S. 1949, 60-3310 this court permitted the defendant to amend her notice of appeal to include orders overruling (1) her motion for judgment on the pleadings; (2) her motion for judgment on plaintiff’s opening statement, and (3) her demurrer to plaintiff’s evidence. Upon application, the defendant was permitted to amend her specifications of error to include that the district court erred in overruling (1) her motion for judgment on plaintiff’s opening statement, and (2) her demurrer to plaintiff’s evidence; also, that the pleadings and the undisputed facts were insufficient to sustain the judgment.
With the exception of the correctness of the ruling on defendant’s demurrer to plaintiff’s evidence, the specifications of error are directed to trial errors and the insufficiency of plaintiff’s evidence to support the judgment. Thus, appellate review of the record is limited to the question of whether the judgment is supported by the findings and the pleadings (Benson v. Rosebaugh, 128 Kan. 357, 278 Pac. 41; Lake Superior Lbr. Co. v. Homestead B. & L. Ass’n, 139 Kan. 565, 32 P. 2d 202; Jelinek v. Jelinek, 161 Kan. 362, 168 P. 2d 547; Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233), and whether the district court erred in overruling defendant’s demurrer to plaintiff’s evidence. It has been decided many times that in the absence of a motion for a new trial, trial errors are not open to appellate review. These include rulings of the district court on dilatory pleas, orders setting the cause for trial, denial of additional time to plead, the overruling of a motion for judgment on counsel’s opening statement, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, the erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on timely motion of a defeated litigant. (Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105; Holton v. Holton, 172 Kan. 681, 243 P. 2d 222; Billups v. American Surety Co., 173 Kan. 646, 251 P. 2d 237; State, ex rel., v. Miller, 176 Kan. 175, 268 P. 2d 964; Brewer v. Hearne Motor Freight Lines, Inc., 179 Kan. 732, 297, P. 2d 1108; Jeffers v. Jeffers, supra.)
We first discuss the correctness of the order overruling -defendant’s demurrer to plaintiff’s evidence. Plaintiff introduced evidence tending to show that in April, 1956, he executed a deed to his homestead to the defendant as security for an advancement of $350 which he needed to settle two lawsuits then pending against him. There was also evidence which showed that through his acquaintance with the defendant over a period of years he had visited in the home of defendant and her husband on many occasions and both purported to be very good friends of his; that plaintiff was nervous and in an overwrought condition due to the pending lawsuits and that defendant and her husband told him they had his best interests at heart and wanted to help him .handle his affairs; that he was persuaded by the defendant and her husband to execute the deed through misleading statements that if he did not convey the real estate to them those who had filed the lawsuits against him might take it; that he had left the diamond ring with defendant for safekeeping, which she promised to return to him on his request and that she would not return the ring when requested to do so; that he had loaned the defendant a General Electric vacuum cleaner and an Ironrite ironer to ease her housekeeping burdens, and that the defendant claimed the plaintiff gave them to her to apply on or to pay for a board bill.
We have examined the record and it would serve little purpose to set forth in detail all of plaintiff’s evidence but suffice it to say the evidence was sufficient to establish plaintiff’s causes of action, and the trial court did not err in overruling the defendant’s demurrer. The well-established rule in this jurisdiction is that,
“In testing the sufficiency of evidence as against- a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between her direct and cross-examination, and if so considered, there is any evidence which sustains plaintiff’s case, the demurrer should be overruled.” (Cain v. Steely, 173 Kan. 866, 252 P. 2d 909, Syl. ¶ 3.)
See, also, Harral v. Kent Corporation, 168 Kan. 322, 212 P. 2d 356; Hukle v. Kimble, 169 Kan. 438, 219 P. 2d 434; Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538; Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904. Furthermore, the defendant did not stand upon her demurrer but elected to introduce evidence in her defense. The rule is well settled that evidence offered by a defendant which supplied any lack in plaintiff’s proof will be considered in determining the correctness of an order overruling a demurrer. (Lechleitner v Cummings, 159 Kan. 171, 152 P. 2d 843.) See, also Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899, and Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295.
We have reviewed plaintiff’s petition and are of the opinion the allegations support the judgment that the deed was intended as a mortgage although no existing debt was alleged to exist when it was executed, but only an agreement that the defendant would make future advances to the plaintiff in cash. While it is true the rule in this jurisdiction is that a deed may only be construed as a mortgage where there is an existing debt (Holuba v. Floersch, 142 Kan. 601, 606, 50 P. 2d 1004) nevertheless a deed which is absolute in its terms may be construed to be a mortgage, as between the parties, upon proof of an obligation to be secured by it pursuant to a contract for future advances made contemporaneously with its execution (59 C. J. S., Mortgages, § 37, pp. 73, 74; Hess v. Hess, 164 Kan. 139, 142, 187 P. 2d 383). The district court found that the deed, when executed, was intended by the parties as security for the repayment of advancements made by the defendant and that one was made on May 15, 1956, in the sum of $350. The sum advanced was definite in amount and was enforceable by an action at law or by foreclosure proceedings. That upon the return of the diamond ring and the electrical appliances the defendant may institute foreclosure proceedings for the enforcement of her mortgage lien should the plaintiff fail to repay the amount found to be due.
Defendant’s complaint that there is no specific allegation that the diamond ring was ever in her possession is not well taken. Plaintiffs allegation that he demanded return of the ring and of defendant’s refusal to return it infers that the ring was and is in the defendant’s possession. We find no reason why plaintiff’s petition is insufficient to support the judgment.
Error is never presumed and the defendant had the burden in this case to affirmatively show reversible error. She has not sustained this burden. Our review of the record compels an affirmance of the judgment of the district court.
It is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an action to recover damages from the Kansas Turnpike Authority for personal injuries only, alleged to have been sustained by the plaintiff as the result of its operation of a hot asphalt plant, near his farm home, in the construction of the Kansas Turnpike. The appeal is from an order sustaining a demurrer to the petition on the ground it failed to state a cause of action and the single appellate issue presented is whether the Authority is liable in damages for injuries of that nature.
Except for differences in the identity of the plaintiff, inconsequential allegations of the pleading and the type of ruling in question the issue raised by this appeal is the same as the one involved and determined in Hosterman v. Kansas Turnpike Authority, 183 Kan. 590, 331 P. 2d 323, this day decided. Therefore based on what is said and held in that decision the order and judgment of the trial court in sustaining the demurrer to the instant petition must be affirmed.
It is so ordered.
Wertz and Fatzer, JJ., dissenting. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by defendant from the trial court’s order overruling his demurrer to plaintiff’s second amended petition. Defendant assigns as error, in addition to the error of the trial court in overruling his demurrer, an order overruling an extensive motion to make definite and certain and to strike, but because of his failure to include this in his notice of appeal, the order cannot be considered on appellate review. One of the latest of our many decisions on this particular point is Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P. 2d 849, where it was stated that rulings not particularly specified in the notice of appeal present nothing for appellate review.
Thus the only question remaining to be determined is the correctness of the trial court’s order ovérruling the defendant’s general demurrer to plaintiffs’ second amended petition (hereinafter called petition). Highly summarized, the material portions of the petition filed by plaintiffs, as the surviving parents and next of kin of Floyd William O’Brien, were that on May 19, 1956, defendant, an experienced automobile driver and a regularly employed high school teacher for the full 1956 school year held a stag party for the senior boys of Plainville High School at his apartment in Plainville. Previously invited, the boys, including plaintiffs’ son Floyd, began arriving at the party shortly after 7:30 p. m. Defendant served beer of 3.2 or more alcoholic content and punch containing alcohol or fermented spirits, the percent thereof plaintiffs were unable to state, but which was known to defendant. The boys and defendant spent the evening playing records and their conduct was rather hilarious. They drank the beer and punch in an amount plaintiffs were unable to state, but this was within the knowledge of defendant. Shortly before 11:00 p. m. defendant invited, or consented, to take six of the boys, including Floyd, to Hays, Kansas, in defendant’s 1955 Mercury automobile. Defendant, while his emotions were stimulated by drinking beer and punch, and by the spirit of the party until he was in a reckless and daring mood, commenced driving south from Plainville on U. S. highway No. 183 with the six boys as his guests. Plaintiffs did not know and were unable to state the non-business purpose of the trip to Hays for which no consideration was paid or agreed to be paid by Floyd for the trip or transportation. Approximately six-tenths of a mile south of the Rooks-Ellis county line at the top of a long hill the highway goes downgrade and contains curves from a southwesterly direction to the east and then south for an additional six-tenths of a mile.
Defendant was in complete charge and operation of the auto mobile, had driven this particular portion of the highway many times, and was thoroughly familiar therewith. At the county line remarks by some of the six boys about the speed of the car were made, which plaintiffs were unable to state, but they are well known to defendant. Thereupon defendant became angry, irritated or possessed with the idea of showing off his automobile’s speed regardless of the consequences. He accelerated and continued acceleration of the speed of his automobile until a short distance after passing the top of the above-mentioned hill when the speed reached 110 miles per hour. Part of the way down the hill defendant overtook and passed, without reducing his speed, an automobile pulling a trailer. With reckless, gross and wanton negligence, and in total disregard for his passengers’ safety, particularly Floyd, and with complete indifference and unconcern for the probable consequences of his wrongful act or for the safety of other persons, particularly Floyd, defendant continued the speed of 110 miles per hour until he lost control of the automobile. Notwithstanding his driving experience, knowledge of the curves and the downgrade in the highway, defendant knew his passing of the automobile and trailer and attempting to negotiate the last curve at such speed would result in a wreck, and injuries or death to his passengers. As a proximate result of his reckless, gross and wanton negligence defendant lost control of his automobile at or near the last or southernmost curve, the automobile upset, and Floyd was instantly killed.
The petition further alleged that Floyd did not protest defendant’s driving, because the accelerated speed was for such a short period of time that he did not realize or appreciate the danger; that with the late mode.1 heavily-loaded automobile and with Floyd not driving, he could not, with certainty, judge the speed thereof; because of the teacher-student relationship and the unwritten disciplinary and courtesy rules enforced by Plainville Rural High School, which are in accordance with rules existing generally in Kansas high schools, Floyd was extremely reluctant to protest defendant’s acts; and Floyd had full trust and confidence in defendant, his teacher, and did not think he would unduly endanger his life or limbs. The allegations of the amount of damages are omitted herefrom as they are not necessary to a determination of this appeal.
In considering the trial court’s ruling on this demurrer we must consider together all the allegations of the petition. It is not proper to segregate allegations and determine their sufficiency without regard to the context of the whole pleading. (Elliott v. McKenzie, 180 Kan. 344, 304 P. 2d 550.) This is the third pleading filed by plaintiffs in complying with orders of the trial court and we must presume, as we said in Weltmer v. Mathis, 182 Kan. 70, 72, 319 P. 2d 165, that plaintiffs have pleaded all that it is possible for them to plead. The trial court apparently so considered the petition and concluded further by its ruling that a cause of action under our guest statute (G. S. 1949, 8-122b) was properly stated against the defendant.
Many authorities are cited by the parties but they do not present an answer to the situation confronting the court in this appeal. Defendant points out that Floyd made no protest and it is quite apparent from all the allegations of the petition that he is correct in that particular contention. However, what do we find was alleged? The speed of the car was alleged to have been accelerated to a top speed of 110 miles per hour and while defendant had started to accelerate at the county line which was 1.2 miles back from the point of the accident, the top speed was not attained until after the car started downgrade in the last six-tenths mile from the point of the accident. Thus Floyd had less than six-tenths of a mile to remonstrate and, as stated in the petition, he did not have time. From a realistic standpoint, had he remonstrated most vociferously, defendant could not have reacted quickly enough to have slowed the speed and safely negotiated the curve at the bottom of the hill after passing the car pulling the trailer. A Mercury automobile is generally accepted to be a rather heavy car and here there was the additional weight of a number of passengers. When such a vehicle so loaded is propelled at a speed of 110 miles per hour in the light of the other circumstances of passing and swinging back to attempt to make the curve, it would be futile to try to conceive of any other result occurring than that which the petition alleged. In view of all that has been said, in addition to other allegations contained in the petition regarding defendant’s knowledge of the road, he was bound to know that danger was imminent and his conduct in failing to heed that knowledge indicated a reckless disregard and complete indifference and unconcern for the probable consequences of his action. This is the same conclusion reached in Long v. Foley, 180 Kan. 83, 91, 299 P. 2d 63, where definitions of the terms of the guest statute are set out and many authorities discussed. We can see no useful purpose in further enlarging upon the sufficiency of the petition and we are constrained to conclude that it alleges a cause of action as required by the guest statute.
Judgment affirmed. | [
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Marquardt, J.:
Snow K. Vinyard appeals her convictions for aggravated burglary and theft. We affirm.
On August 12, 2001, a security officer at Dillard’s department store recognized Vinyard as she walked toward the store entrance from the mall. Vinyard had been caught shoplifting at the store on previous occasions. The officer used the security camera to follow Vinyard’s movements. Vinyard’s male companion picked up a CD player and walked with Vinyard to the children’s department. Vinyard stopped in front of a children’s sunglasses display. Then Vinyard and her companion met behind a clothing display and Vinyard opened an empty Dillard’s shopping bag as her companion placed the CD player inside the bag.
The security officer observed Vinyard and her companion walk out of Dillard’s into the mall without paying for the CD player. Vinyard and her companion were arrested by two security officers after they left the store. In addition to the CD player, the officers discovered five pairs of children’s sunglasses in Vinyard’s purse, with the price tags still affixed and no proof of purchase. The total value of the six items was approximately $185.
At trial, the manager of Dillard’s testified that Vinyard had been banned from returning to the store after she was caught shoplifting merchandise on previous occasions. The State presented a summary of Vinyard’s history of shoplifting at Dillard’s, which included four prior arrests and prosecutions. Each time Vinyard was caught stealing from Dillard’s, she signed a document acknowledging that she had been told she was banned from returning to the store. Vinyard objected to the introduction of the prior crimes evidence.
Vinyard presented no evidence and the jury found her guilty of one count of aggravated burglary, a severity level 5 felony, and one count of theft, a class A, nonperson misdemeanor.
The trial court granted Vinyard’s motion for a downward dis-positional departure and sentenced her to 36 months’ probation with an underlying prison term of 51 months. Vinyard timely appeals.
Aggravated Burglary
Vinyard argues that there was insufficient evidence to convict her of aggravated burglary because walking from the mall into Dillard’s does not constitute “entering a building” as required by K.S.A. 21-3716.
K.S.A. 21-3716 describes aggravated burglary as: “knowingly and without authority entering into or remaining within any building, manufactured home, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is a human being, with intent to commit a felony, theft or sexual battery therein.”
Vinyard cites State v. Hall, 27 Kan. App. 2d 313, 3 P.3d 582, aff'd 270 Kan. 194, 14 P.3d 404 (2000) as support for her argument. Hall was videotaped taking items from the stockroom of a K-Mart store which was located at the back of the store. Customers did not have authority to enter the stockroom, and Hall had to walk through two closed doors to gain access to the room. He was convicted of three burglary charges. In Hall’s appeal, he argued that he could not be convicted of burglary because he entered the store with the consent of K-Mart, and the stockroom was not a separate entity or building under the burglary statute. The Court of Appeals stated:
“Hall may have been guilty of several criminal offenses, but one of them was not burglary. He did not enter the K-Mart building which housed the storeroom without authority. His conviction of burglary must be reversed.” 27 Kan. App. 2d at 319.
The Kansas Supreme Court reviewed the Hall decision and agreed that Hall clearly intended to commit a theft when he entered the stockroom, but that penal statutes were to be construed in favor of the defendant, “subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” 270 Kan. at 202.
Vinyard interprets Hall to stand “for the proposition that, for purposes of burglary, the element of entering refers to the building or structure and not an internal demarcation.” Vinyard argues that when she entered the mall she had authority to do so, and that defining Dillard’s as a separate building for the purposes of an aggravated burglary conviction violates Hall.
The State counters that Vinyard’s interpretation of Hall would lead to an unreasonable result because the application of the statute would depend on whether Vinyard had entered Dillard’s from the exterior doors, rather than the mall entrance.
The interpretation of a statute is a question of law, granting this court unlimited review. An appellate court is not bound by a trial court’s statutory interpretation. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
Hall is distinguishable from the instant case. Hall was allowed to enter K-Mart and stayed within that store. Even though Vinyard was allowed in the public mall, she entered Dillard’s without authority. There are various stores within the mall that are leased by the mall owners. These stores are separate businesses and have their own entrances. Each store is completely enclosed and secured separate and distinct from the other businesses in the mall.
Interpreting the law as suggested by Vinyard is unreasonable. If Vinyard had chosen to enter Dillard’s from the exterior doors to the building, she would have entered without authority. It makes no difference that she entered from the mall entrance.
There is no Kansas case directly on point; however, Smith v. State, 632 So. 2d 136 (Fla. Dist. App. 1994), appears to be instructive. That court held that Smith could be charged with and prosecuted for 18 counts of burglary of a structure where he entered 17 separate business that were wholly contained under a mail’s single roof. The court stated that the businesses were each completely enclosed and secured separate and distinct from other businesses, were occupied by distinct lessors, and were separate and distinct from the common area of the mall. 632 So. 2d at 137.
We find that when an individual enters a business that is completely enclosed and secured separate and distinct from the other businesses in a public mall, the individual is entering a building as described in K.S.A. 21-3716. Using the analysis of Smith, we agree that Vinyard is guilty of aggravated burglary.
Aggravated Burglary Instruction
Vinyard argues that die aggravated burglaiy instruction was clearly erroneous because the statute does not cover situations in which a person enters a part of a building. She also states that “[t]his instruction undoubtedly misled the juiy because the trial court did not define or specify the building that was entered into without authority.”
The trial court gave the following aggravated burglary instruction:
“The defendant is charged in count one with the crime of aggravated burglary. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That tire defendant knowingly entered a building;
2. That the defendant did so without authority;
3. That the defendant did so with the intent to commit a theft therein;
4. That at the time there was a human being in the building, and
5. That this act occurred on or about the 12th day of August, 2001, in Sedgwick County, Kansas.”
Vinyard did not object to this instruction at trial. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the juiy retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous. Hawkinson v. Bennett, 265 Kan. 564, 581, 962 P.2d 445 (1998). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Under these circumstances, the instruction was not clearly erroneous because it correctly stated the law in relation to the facts of this case.
Failure to Give a Unanimity Instruction
Vinyard next argues that she was entitled to a unanimity instruction because a juiy could have found her guilty of taking either the CD player or the five pairs of sunglasses. Vinyard believes that the instructions do not properly and fairly state the law as applied to the facts of this case.
In State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001), the Kansas Supreme Court described die harmless error analysis for multiple acts and whether a unanimity instruction should have been given. The Kansas Supreme Court held that the trial court must determine whether there is a possibility of jury confusion, or if the evidence showed either legally or factually separate incidents. The court stated:
“Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error in failing to give a unanimity instruction was harmless beyond a reasonable doubt with respect to all acts.” 271 Kan. at 939.
There was no possibility of juror confusion in Vinyard’s case, nor did the act of taking the sunglasses and CD player involve legally or factually separate incidents. Either the jury believed that Vinyard had taken all of the merchandise, or it believed she was innocent of the charges. The trial court did not err when it did not give the jury a unanimity instruction.
Evidence of Prior Crimes
Vinyard’s final argument is that the trial court erred when it admitted into evidence her prior theft convictions for shoplifting at Dillard’s and her subsequent ban on entering any of its stores. K.S.A. 60-455 states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as tire basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
In State v. Lane, 262 Kan. 373, 940 P.2d 422 (1997), the Kansas Supreme Court succinctly described the standard of review for the admission of evidence pursuant to K.S.A. 60-455:
“There are three requirements which must be satisfied for evidence to be admitted under K.S.A 60-455. The district court must find that (1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) probative value of the evidence outweighs its potential prejudice. [Citation omitted.] If the requirements for admission of evidence of prior crimes pursuant to K.S.A. 60-455 are met, the scope of appellate review is limited to whether the trial court abused its discretion. [Citation omitted.] Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” 262 Kan. at 388.
Before trial, the State filed a motion pursuant to K.S.A. 60-455 to introduce Vinyard1 s prior crimes evidence. The State argued that the prior crimes evidence should be admitted because the State “anticipated that the defense will argue that the Defendant had authority to enter the store due to the public nature of department stores and that she did not intend to steal merchandise belonging to Dillard’s.” At the hearing on the introduction of K.S.A. 60-455 evidence, the State argued that the evidence should be allowed to prove the intent element of the aggravated burglary charge. The State did not argue that intent was a disputed material fact, only that the prior crimes evidence would help to prove the intent element of the crime. The trial court allowed the introduction of the evidence because of the factual similarity between the prior crimes and the crime at issue, because the evidence was relevant to the issue of intent, and because the probative value outweighed the potential for prejudice to Vinyard.
It is apparent from the record on appeal that Vinyard made no attempt to challenge the intent element of the charge. Instead, Vinyard argued in her motion to dismiss that Dillard’s had allowed her into the store and had thereby waived the authority element of the charge, and the circumstances of her case were not covered by the aggravated burglary statute. At trial, Vinyard’s theoiy of defense echoed the arguments raised in her motion to dismiss. At no time did Vinyard argue that there was an innocent explanation for her behavior on August 12, 2001.
The erroneous admission of evidence of a prior crime under one K.S.A. 60-455 exception does not render tire admission harmless merely by the fact it would have been admissible under another exception. State v. McCorgary, 224 Kan. 677, 686, 585 P.2d 1024 (1978).
Even though Vinyard’s prior crimes evidence was erroneously admitted, where the evidence of guilt is direct, overwhelming, and could not have affected the result of the trial, such admission is harmless. See State v. Jamison, 269 Kan. 564, 570, 7 P.3d 1204 (2000). In light of the weight of tire evidence against Vinyard, tire trial court’s admittance of Vinyard’s prior crimes evidence was harmless error.
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Johnson, J.:
David L. Scheuerman II appeals his sentence for involuntary manslaughter while driving under the influence of alcohol (DUI), claiming the district court erroneously included a prior conviction in his criminal history score. The State cross-appeals, claiming the district court erroneously excluded an Oklahoma DUI conviction. We affirm the district court’s determination of Scheuerman’s criminal history score.
Following Scheuerman’s guilty plea, the district court ordered the court services officer (CSO) to prepare a presentence investigation (PSI) report. The CSO’s first PSI reflected a criminal history score of A. Scheuerman objected, claiming that a November 1995 DUI belonged to his father and that inclusion of an Oklahoma DUI violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The CSO filed an amended PSI, omitting the father’s DUI but adding an aggravated assault on a law enforcement officer conviction; thus, leaving the criminal history score of A unchanged.
At sentencing, Scheuerman continued to object to his criminal history, specifically challenging the aggravated assault and Oklahoma DUI convictions on Apprendi grounds and asserting that the Oklahoma conviction had been for reckless driving, not DUI. The district court denied Scheuerman’s challenge to the aggravated assault conviction but found that the State had failed to prove by a preponderance of the evidence that Scheuerman was convicted of DUI in Oklahoma. Scheuerman was rescored as having a criminal history score of B and sentenced accordingly.
AGGRAVATED ASSAULT CONVICTION
Scheuerman claims that his sentence in this case is illegal because it is based, in part, upon ah aggravated assault conviction which is invalid. The issue of whether a criminal sentence is illegal is a question of law, subject to de novo review. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998). Ultimately, resolution of the issue will require an interpretation of K.S.A. 22-2910; statutory construction is also a legal question, subject to unlimited review. See State v. Engles, 270 Kan. 530, 532, 17 P.3d 355 (2001).
In March 1996, Scheuerman was charged in a five-count complaint with aggravated assault against a law enforcement officer, criminal threat, obstruction of official duty, disorderly conduct, and minor consuming an alcoholic beverage. Pursuant to a signed agreement, Scheuerman was placed on diversion for 2 years on the aggravated assault count; he pled nolo contendere to the criminal threat charge; and the other three counts were dismissed. Subsequently, Scheuerman’s diversion was revoked; pursuant to the terms of the diversion agreement, his case was presented upon stipulated facts, and he was convicted of aggravated assault against a law enforcement officer.
On appeal, Scheuerman asserts that the diversion agreement ran afoul of K.S.A. 22-2910, which provides in pertinent part: “No defendant shall be required to enter any plea to a criminal charge as a condition for diversion.” Scheuerman argues that he had to plead no contest to the criminal threat charge as a condition of receiving the proffered diversion on the aggravated assault count; that such a condition was prohibited by 22-2910; and, therefore, the diversion agreement is void as a violation of public policy. See Petty v. City of El Dorado, 270 Kan. 847, 19 P.3d 167 (2001).
Initially, the State contends that this issue is not properly before the court because Scheuerman did not challenge the validity of the diversion agreement at the district court level; rather, he challenged the inclusion of the aggravated assault conviction on Apprendi grounds and on the basis that he was denied his constitutional right to a trial. Ordinarily, a point not raised in the trial court cannot be raised for the first time on appeal. State v. McDaniel, 255 Kan. 756, 765, 877 P.2d 961 (1994). However, the applicable facts are uncontroverted and resolution of the legal question presented, i.e., an interpretation of K.S.A. 22-2910, will be finally determinative of the case. See State v. Mincey, 265 Kan, 257, 267, 963 P.2d 403 (1998).
On the merits, the State contends that the statutory language merely prohibited it from requiring Scheuerman to enter a plea on the aggravated assault count as a condition of receiving a diversion on that same count. We agree.
In construing a criminal statute, any reasonable doubt about its meaning is to be resolved in favor of the person subjected to its provisions. “ ‘The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.’ ” State v. Sophophone, 270 Kan. 703, 712, 19 P.3d 70 (2001), (quoting State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 [1998]).
Diversion delays adjudication on the diverted charge until the defendant has either: (1) failed to fulfill the terms of the diversion agreement, which results in the criminal proceedings being resumed; or (2) fulfilled the terms of the diversion agreement, which results in the case being dismissed with prejudice. K.S.A. 2002 Supp. 22-2911(a) and (b). During the delay in adjudication, “the defendant is not required to enter a plea; no trial is held; and the district court does not make a finding that the evidence substantiates the defendant’s guilt.” State v. Macias, 30 Kan. App. 2d 79, 82, 39 P.3d 85 (2002).
The legislative history of the Kansas diversion statutes suggests that they were enacted to provide an alternative to the traditional dispositions of incarceration or probation. See Petty, 270 Kan. at 849. Just as discretion rests with a prosecutor as to whether to dismiss criminal charges against a defendant, it is the prosecutor who decides whether to offer a diversion agreement to a defendant. See K.S.A. 22-2907(1). The prosecutor is not required to exercise his or her discretion identically for each and every count of a complaint. Indeed, Scheuerman does not complain about the prosecutor’s dismissal of three counts against him, in lieu of including those charges in his diversion agreement.
It is reasonable and sensible to permit a prosecutor to utilize the diversion alternative in combination with any of the other available alternatives when working out a plea arrangement on a multiple-count complaint. The defendant is free to reject the proffered combination of alternatives. The only prohibition is that the defendant cannot be required to enter any plea to the charge(s) subject to the delayed adjudication of diversion. Scheuerman’s plea to the criminal threat count effected an immediate adjudication on that charge and did not invalidate the diversion agreement on the aggravated assault count.
Even if we were to find that Scheuerman’s diversion agreement for aggravated assault unlawfully contained a condition that he plead guilty to criminal threat, we could not reach the result Scheuerman requests, i.e., that the entire diversion agreement be declared void. In Petty, the Supreme Court found that a condition of diversion requiring the defendant to serve 48 hours in jail was void because it was contrary to public policy. 270 Kan. at 854. However, Petty rejected the State’s argument that the entire di version agreement had to be voided if the jail-time condition was invalidated. The opinion declared that “[c]ourts may void only those portions of a diversion agreement that violate the intent of the legislature and order enforcement of the remaining provisions.” 270 Kan. 847, Syl. ¶ 6. Thus, eliminating the condition that Scheuerman plead to criminal threat would only affect the validity of the criminal threat conviction, not the aggravated assault against a law enforcement officer conviction. Even without the criminal threat plea condition, the remaining portions of the aggravated assault diversion agreement were enforceable. Scheuerman’s violation of the remaining diversion conditions resulted in the subsequent, valid conviction.
The district court did not err by including the aggravated assault conviction in Scheuerman’s criminal history.
CROSS-APPEAL: OKLAHOMA CONVICTION
The State cross-appeals, claiming the district court erroneously excluded an Oklahoma DUI conviction from Scheuerman’s criminal history. The district court found that the State had failed to meet its burden of proving the conviction by a preponderance of the evidence. The State asserts that it raises an issue of statutory interpretation, subject to unlimited review. However, “[wjhether the proof presented by the State is sufficient to show a prior conviction is a factual issue.” State v. Presha, 27 Kan. App. 2d 645, 648, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). Here, the district court made a negative factual finding by signifying that the State had failed to meet its burden of proof. We will not disturb that finding absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration, such as bias, passion, or prejudice. See In re Estate of Haneberg, 270 Kan. 365, 374, 14 P.3d 1088 (2000).
The State presented the district court with a letter from the Oklahoma court clerk, along with two certified court documents, relating to the Oklahoma DUI charge. From that information, the district court determined that Scheuerman had entered into some sort of diversion or deferred adjudication program, whereby the DUI charge would be reduced to reckless driving upon successful completion of the program. The district judge found that the documentation presented did not establish whether the conviction ultimately entered was for DUI or reckless driving. The distinction was important for the determination of criminal histoiy because the State was asserting that, under K.S.A. 2002 Supp. 21-4711(c)(2), the DUI would be scored as a person felony.
On appeal, the State argues that Oklahoma’s program is the same as Texas’ deferred adjudication procedure, which was reviewed by this court in Macias. Macias found that a district court could include a deferred adjudication from Texas in calculating a Kansas defendant’s criminal history score. 30 Kan. App. 2d at 83.
To support its arguments, the State’s brief presents excerpts from Scheuerman’s probation contract in Oklahoma and Oklahoma statutory provisions, as well as references to the ordinances of the City of Mustang, Oklahoma. The record does not indicate that this information was presented to the district court. Supreme Court Rule 6.02(d) (2002 Kan. Ct. R. Annot. 34) (any material statement not keyed to record on appeal presumed unsupported by record). Ironically, the only evidence which was presented, i.e., the clerk’s letter and two certified documents, were not included in the record on appeal. See Smith v. Printup, 254 Kan. 315, 350, 866 P.2d 985 (1993) (appellant’s burden to designate record sufficient to present its points and establish claimed error).
The State does not claim nor does the record intimate in any way that the district court’s decision was based upon bias, passion, prejudice, or any other extrinsic consideration. Further, the record does not disclose any undisputed evidence that the district judge arbitrarily disregarded. The record does disclose that the district judge carefully considered all of the evidence actually presented by the State at sentencing and determined that such evidence did not prove that it was more likely that Scheuerman was convicted of DUI rather than reckless driving in the Oklahoma proceeding. The court did not err in refusing to score the Oklahoma conviction as a prior DUI.
Affirmed. | [
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Malone, J.:
Anthony Vondracek, Charles Vondracek, Francis Vondracek, Frank Vondracek, Marie Vondracek, and Vondracek Brothers (Vondraceks) appeal the district court’s grant of summary judgment in favor of Mid-State Co-Op, Inc. (Mid-State). The issues are whether the district court erred in finding that the Vondraceks failed to sufficiently plead fraud and in assessing sanctions under K.S.A. 2002 Supp. 60-211. We affirm the grant of summary judgment but reverse the assessment of sanctions.
In April 1987, Mid-State filed several lawsuits against the Vondraceks asking for $40,055.21 for amounts due on their accounts. The Vondraceks answered the petition and filed a counterclaim against Mid-State.
The parties attempted to negotiate as their lawsuits approached trial. According to Mid-State’s attorney, a breakthrough occurred on February 11, 1988, when the Vondraceks offered Mid-State $25,243.54 cash, plus all Mid-State stock and equities held by the Vondraceks, in settlement of all claims. Mid-State’s attorney met with the board of directors to consider the setdement proposal, and the terms were accepted by Mid-State. According to records at the board of directors’ meeting, all claims against the Vondraceks were settled for “$25,243.54 cash . . . and all stock totaling $12,006.80.”
The journal entry, filed on March 21, 1988, granted Mid-State judgment against the Vondraceks for $25,243.54, plus the costs of the action. However, the journal entry was silent regarding the stock surrender by the Vondraceks. On May 20, 1988, a notice of satisfaction and release of judgment was filed with the district court.
In December 1997, almost 10 years after the journal entry was filed, tire Vondraceks claimed they first learned that their stock in Mid-State had been set off as part of the settlement agreement. The Vondraceks also learned that before they could become co-op members again, they would have to pay Mid-State $6,719.78 for “losses in handling and writing off’ the Vondraceks’ past due accounts.
On September 24, 1999, the Vondraceks filed suit against Mid-State, alleging breach of contract and misrepresentation (fraud). Mid-State answered and filed a motion for summary judgment, claiming that the lawsuit was barred by the statute of limitations. On September 14, 2000, the district court granted Mid-State’s summary judgment motion solely on the grounds that the Vondraceks’ claims were barred by the statute of limitations.
The Vondraceks appealed on their fraud claim, and the Court of Appeals reversed and remanded on the ground that the record failed to establish when the Vondraceks knew, or should have known, that their stock and equities were set off as part of the settlement agreement. Vondracek v. Mid-State Co-Op, Inc., No. 86,024, unpublished opinion filed on February 8, 2002. In the appeal, the parties briefed and argued whether the Vondraceks’ fraud claim was sufficiently pled. See K.S.A. 2002 Supp. 60-209(b). However, the appellate court made no ruling on that issue since the district court had not addressed the issue in initially granting summary judgment.
Upon remand, the case proceeded to pretrial conference on August 22, 2002. The Vondraceks never made any attempt to amend their fraud claim. Mid-State filed another motion for summary judgment, asserting that the Vondraceks failed to sufficiently plead fraud. The district court again ruled in favor of Mid-State and, this time, dismissed the case based solely on the Vondraceks’ failure to sufficiently plead fraud pursuant to K.S.A. 2002 Supp. 60-209(b).
Mid-State also filed a motion for attorney fees and assessment of costs. The district court ruled that the Vondraceks’ petition “was in violation of K.S.A. 60-211, by presenting claims which were not warranted by existing law.” The district court awarded Mid-State attorney fees in the amount of $6,500 assessed against the Vondraceks but not their attorneys.
This timely appeal follows.
Pleading fraud ioith particularity
The Vondraceks claim that the district court erred in granting summary judgment in favor of Mid-State based on their failure to sufficiently plead fraud.
“The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
See K.S.A. 2002 Supp. 60-256(c).
Generally, tire Kansas Rules of Civil Procedure permit notice pleading. In other words, a pleading is sufficient if it contains “[a] short and plain statement of the claim showing that the pleader is entitled to relief’ and “a demand for judgment.” K.S.A. 2002 Supp. 60-208(a). An exception exists, however, in pleading fraud. Under K.S.A. 2002 Supp. 60-209(b), when pleading fraud, the circumstances constituting fraud must be stated with particularity.
“Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made wifh disregard for the truth, where another party justifiably relies on the statement and acts to his injury.” Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 6, 605 P.2d 545 (1980).
According to Pattern Instructions for Kansas (PIK Civ. 3d), the essential elements required to sustain an action for fraud are:
“1. That false (or untrue) representations were made as a statement of existing and material fact.
“2. That the representations were known to be false (or untrue) by the party making them, or were recklessly made without knowledge concerning them.
“3. That the representations were intentionally made for the purpose of inducing another party to act upon them.
“4. That the other party reasonably relied and acted upon the representations made.
“5. That the other party sustained damage by relying upon them.” PIK Civ. 3d 127.40.
On appeal, the Vondraceks direct this court to paragraphs 16, 17,18, and 19 of their petition to support their argument that fraud has been sufficiently pled. These paragraphs allege the following:
“16. That during negotiations for the claims . . . Mid-State Co-Op, Inc.[,] advised the Plaintiff[s] herein that it was not willing to apply or offset the Plaintiffs’ stock and other equities of the Cooperative to the disputed amount ....
“17. That tlie Defendant, Mid-State Co-Op, Inc., also advised the Plaintiff[s] that they were not eligible for the redemption or repurchase of their stock and other equity, as evidenced by the Reply to Counterclaim filed in the respective cases.
“18. That based upon this representation, the Plaintiffs believed that their stock was intact and not subject to being used as set-off.
“19. That the Plaintiffs relied upon the representation of the Defendant, Mid-State Co-Op. Inc., and worked out a cash settlement of the issues . . . .”
A review of these assertions reveals that the Vondraceks have failed to sufficiently plead a fraud claim against Mid-State. The petition makes no attempt to clearly delineate the five elements of fraud established by case law and set forth in PIK Civ. 3d 127.40 for fraud. There is no allegation that Mid-State ever made a statement with an intent to defraud. Most strikingly, there is no allegation that Mid-State has ever knowingly made an untrue statement. Only two elements of fraud are alleged in the Vondraceks’ petition: (1) that the Vondraceks relied on certain statements by Mid-State and (2) that they suffered damages by relying on those statements. Even if every statement in paragraphs 16-19 of the petition were proven, the Vondraceks would fail to establish a valid claim of fraud against Mid-State.
Case law provides examples that the statutory requirement to plead fraud with particularity is strictly enforced. In Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988), the plaintiff brought an action against her former employer for retaliatory discharge and fraud. The Supreme Court upheld the dismissal of the fraud claim because it did not allege the fraudulent inducements with particularity. 242 Kan. at 901. In McGill v. Kuhn, 186 Kan. 99, 348 P.2d 811 (1960), the plaintiffs brought a quiet title suit and the defendant filed an answer and cross-claim alleging fraud. The Supreme Court held the defendant’s fraud claim was insufficiently pled because it did not allege knowledge by the plaintiffs of the alleged intent to defraud the defendant. 186 Kan. at 104.
This lawsuit was pending for nearly 3 years before it proceeded to pretrial conference. During that time, the Vondraceks never attempted to amend their petition to state fraud with more particularity even though they knew this was a potential issue in the case. Given that the petition only states two elements of fraud with particularity, we agree that the Vondraceks’ fraud claim was insufficiently pled pursuant to K.S.A. 2002 Supp. 60-209(b). The district court did not err in granting summary judgment for this reason.
Sanctions under K.S. A. 2002 Supp. 60-211
Next, the Vondraceks allege that the district court erred in assessing sanctions against them pursuant to K.S.A. 2002 Supp. 60-211(c). Generally, the imposition of sanctions is discretionary with the district court, and its rulings will not be disturbed absent an abuse of that discretion. Wood v. Groh, 269 Kan. 420, 429, 7 P.3d 1163 (2000). However, the district court’s ruling involved an interpretation of K.S.A. 2002 Supp. 60-211. An appellate court is not bound by the district court’s interpretation of a statute. 269 Kan. at 429-30.
Pursuant to K.S.A. 2002 Supp. 60-211(c), a district court “shall” impose appropriate sanctions, which may include, inter alia, attorney fees if a party signs a pleading, motion, or other paper in violation of K.S.A. 2002 Supp. 60-211(b). See Wood, 269 Kan. at 430. Violations of K.S.A. 2002 Supp. 60-211(b) include stating claims, defenses, and other legal contentions not warranted by existing law or a frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. If a pleading is signed in violation of 60-211, the court shall impose appropriate sanctions “upon the person who signed it or a represented party, or both . . . K.S.A. 2002 Supp. 60-211(c).
Courts should take the following factors into consideration when determining whether to sanction a party under 60-211 and what land of sanction to impose:
“1. whether the improper conduct was willful or negligent;
“2. whether it was part of a pattern of activity or an isolated event;
“3. whether it infected the entire pleading or only one particular count or defense;
“4. whether the person has engaged in similar conduct in other litigation;
“5. whether it was intended to injure;
“6. what effect it had on the litigation process in time or expense;
“7. whether the responsible person is trained in the law;
“8. what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; and
“9. what amount is needed to deter similar activity by other litigants. [Citation omitted.]” Wood, 269 Kan. at 431.
Here, the district court determined that the Vondraceks’ petition was totally lacking in a basis for a claim of fraud. However, the only statutory violation specifically cited by the district court was that the Vondraceks’ petition “was in violation of K.S.A. 60-211, by presenting claims which were not warranted by existing law.” The district court awarded attorney fees and expenses in the amount of $6,500 assessed against the Vondraceks but not their attorneys.
We have difficulty agreeing that the Vondraceks’ attempted fraud claim violated K.S.A. 2002 Supp. 60-211(b) “by presenting claims which were not warranted by existing law.” This sanction is generally utilized when a party files a claim based upon a legal theory that is clearly contrary to statute or case law. Here, the Vondraceks’ petition was dismissed for failure to plead fraud with particularity. This is not the same as presenting a claim which is not warranted by existing law. If sanctions are warranted against the Vondraceks in this instance, it would seem that sanctions should be assessed against a party any time a petition is dismissed based upon the pleadings.
Also, the district court made no attempt to consider the factors set forth in Wood in determining whether sanctions should be assessed in this case. In assessing sanctions, the district court stated: “[I]t appears to me that this case has gone on much too long and should have been resolved early on.” However, the district court failed to provide further reasoning to support it assessment of sanctions.
Finally, even if sanctions were appropriate, it appears they should have been more properly assessed against the Vondraceks’ attorneys rather than the Vondraceks. This lawsuit was initiated with the filing of an unverified petition signed only by counsel. It contained one count for breach of contract and one count attempting to allege misrepresentation or fraud. The Vondraceks probably had little to do with deciding what legal theories should be pursued. More than likely, they relied solely upon their attorneys to appropriately draft the pleadings filed in the case.
Considering all the facts and circumstances, we hold the district court improperly applied K.S.A. 2002 Supp. 60-211 and abused its discretion in assessing sanctions against the Vondraceks. The award of $6,500 in favor of Mid-State for attorney fees is set aside.
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Malone, J.:
Avien Corporation, Bagwell #1 Family Limited Partnership, Devore Enterprises, KNG-Central, LLC, and Slaw-son Exploration Company, Inc. (collectively referred to as Slawson) appeal from the district court’s denial of Slawson’s motion for summary judgment and the granting of summary judgment to First National Oil, Inc., Michael J. Bennett, Greg Golladay, and Judith L. Hopkins (collectively referred to as First National) on Slawson’s petition for declaratory relief. First National cross-appeals from the district court’s order granting Slawson summary judgment on First National’s counterclaims. The primary issue is whether the district court erred in interpreting a farmout agreement as not allowing multiple assignments of depth intervals after initial completion of a test well. Finding no reversible error, we affirm.
In 1992, Slawson entered into a farmout agreement with First National. The farmout agreement defines the parties’ rights as to Section 15-33S-33W in Seward County, Kansas. The farmout agreement provided that First National would assign its operating rights and working interest in the farmed out acreage to Slawson if a producing well was established. However, the assignment was limited to “the productive formation or formations found in the test well.”
The farmout agreement required Slawson to commence operations for drilling a test well by August 21, 1992, to be completed with due diligence. Furthermore, the farmout agreement provided that “during the drilling, testing and completion” of the test well, Slawson was required “to make adequate tests to determine if the well is capable of producing oil or gas in economic quantities from the objective formation and from all prospective formations encountered.” Additionally, after the initial test well was completed as either a producer or a dry hole, the farmout agreement gave Slawson the exclusive option to commence drilling additional test wells within 180 days.
Slawson drafted the farmout agreement based on forms in its files. The language limiting the assignments to productive formations found in the test well was added by the parties to reflect discussions between Slawson and First National.
Slawson drilled a test well, the Nix #1-15, pursuant to the farm-out agreement with First National. The well was completed on October 27,1992, as an oil well producing from the Chester Sandstone formation. The Chester Sandstone formation was approximately 6,000 feet below the surface.
In a letter dated November 2, 1992, Slawson notified First National of the completed well and requested an assignment pursuant to the farmout agreement. Slawson attached a document titled Assignment of Oil and Gas Leases to the letter. In this document, First National was to assign its working interest in oil and gas leases, but was limited to:
“INSOFAR AND ONLY INSOFAR as said interest covers and applies to the E/ 2 NE/4 of Section 15-33S-33W, Seward County, Kansas, and further limited to tire Chester formation as found in Slawson Nix #1-15, located 1,320’ FNL and 660’ FEL of Section 15-33S-33W, Seward County, Kansas.”
The document did not contain a specific depth limitation.
First National made an assignment using the same document provided by Slawson. However, the assignment was limited to the Chester formation at a depth between “5,836" and 6,146" as shown on the electric log therefrom.” Additionally, the assignment was made subject to the farmout agreement. This amended assignment was accepted and recorded by Slawson. Slawson ordered a title opinion after recording the assignment so it would know how, and in what amounts, to pay its investors and those who owned interests in the well.
In August 2000, Slawson learned that a rival company, Anadarko, completed a well in the Marmaton formation approximately 3 miles from the Nix #1-15 well. In a letter dated January 9,2001, Slawson attempted to assert a right to recomplete in the Marmaton formation within the Nix #1-15 well. Recomplete means to attempt to produce from another formation within the wellbore. Slawson expected to receive an assignment from First National if additional production was established. In a letter dated Februaiy 16, 2001, First National notified Slawson it would not allow the recompletion of the Nix #1-15 well.
On January 11, 2002, Slawson filed a petition for declaratory relief with the Sedgwick County District Court. This petition was later amended. In its petition, Slawson sought to have its rights under the farmout agreement interpreted. First National filed an answer to the petition and later filed a counterclaim requesting reassignment of interests Slawson had in the Nix #1-15 well and an accounting from Slawson for amounts of unaccounted-for gas sold or produced from the Nix #1-15 well.
On October 29,2002, First National filed a motion seeking summary judgment on Slawson’s claims for declaratory judgment. On November 20,2002, Slawson filed a motion seeking summary judgment on its claims as well as First National’s counterclaims. The district court granted First National’s motion for summary judgment on Slawson’s claims and granted Slawson’s summary judgment motion on First National’s counterclaims. Slawson filed a timely notice of appeal, and First National filed a timely notice of cross-appeal.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to die conclusive issues in the case. On appeal, we apply die same rules and where we find reasonable minds could differ as to the conclusions drawn from die evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
The primary issue in this case involves interpretation of the farm-out agreement as to whether it allows multiple assignments of depth intervals within the Nix #1-15 wellbore after initial completion of the test well. The district court found the farmout agreement to be unambiguous and interpreted the agreement in First National’s favor as not allowing multiple assignments years after the drilling of the test well. In the alternative, the district court granted summary judgment in favor of First National based upon the statute of limitations and on the ground that the farmout agreement merged with the assignment document. We will first examine the alternative findings of the district court.
Statute of limitations
Slawson claims the district court erred by determining its action was barred by the statute of limitations. Interpretation and application of a statute of limitations is a question of law and is entitled to de novo review. Beltz v. Dings, 27 Kan. App. 2d 507, 510, 6 P.3d 424 (2000).
The parties agree the applicable statute of limitations is 5 years pursuant to K.S.A. 60-511. The issue is determining when the statute of limitations commenced to run.
In Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986), the court stated:
“In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The true test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted his action to a successful conclusion. [Citations omitted.]” 239 Kan. at 87.
First National claims that Slawson is now attempting to gain greater rights than were granted in the assignment filed in 1992. Thus, First National claims that Slawson’s cause of action arose when First National delivered the assignment to Slawson. However, Slawson’s petition for declaratory relief does not request the court to amend the assignment or to interpret the assignment in a way that allows Slawson to have rights to other formations within the Nix #1-15. Instead, Slawson requests the court to determine that the farmout agreement allows Slawson to recomplete the Nix #1-15 wellbore at other formations and gain additional assignments from First National.
This action could not have been commenced until First National refused Slawson’s request to recomplete the Nix #1-15 at different formations. First National sent a letter dated February 16, 2001, denying Slawson’s request to recomplete the Nix #1-15. Slawson filed its petition for declaratory judgment on January 11, 2002. Therefore, Slawson filed its action within the 5-year statute of limitations.
Merger doctrine
Next, Slawson claims that the district court erred by determining that the merger doctrine prevented Slawson from claiming it has a right to recomplete the Nix #1-15. This issue involves mixed questions of law and fact. The interpretation and effect of legal instruments are questions of law. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). However, the merger doctrine is based on the intention of the parties. Blair Constr., Inc. v. McBeth, 273 Kan. 679, 686, 44 P.3d 1244 (2002). Intent is a question of fact to be determined from the written instrument as well as the facts and circumstances surrounding its execution. Blair Constr., Inc., 273 Kan. at 686.
The merger doctrine was explained in Blair Constr., Inc. when the court stated:
“It is a general rule of law applicable to all contracts, including deeds, that prior stipulations and agreements are merged into the final and formal contract or deed executed by the parties. When a deed is delivered and accepted as performance of a contract to convey, the contract is presumed to be merged into the deed. [Citations omitted.]” 273 Kan. at 686.
The district court determined that the farmout agreement merged into the assignment First National made to Slawson after Slawson completed the Nix #1-15. Accordingly, the district court determined that Slawson’s drilling rights were limited to the rights granted in the initial assignment.
Here, the evidence does not support the proposition that the parties intended the farmout agreement to merge with the assignment. The assignment document was expressly made subject to the fannout agreement. The purpose of making a document subject to another document is to keep the first document controlling over the second document. Using a plain meaning analysis, it is clear that the parties did not intend the farmout agreement to be merged with the assignment.
Interpretation of the farmout agreement
We return to our central issue, which is whether the district court erred in interpreting the farmout agreement as not allowing multiple assignments of depth intervals within the Nix #1-15 well-bore after initial completion of the test well. Although the district court allowed the parties to present parole evidence on the issue of intent, the district court ultimately concluded that the farmout agreement was unambiguous and should be interpreted based upon the language of the document. The district court interpreted the farmout agreement in First National’s favor as not allowing multiple assignments of depth intervals years after the drilling of the test well.
Slawson claims the district court improperly interpreted • the farmout agreement. “The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]” Unrau, 271 Kan. at 763. Additionally, if a written instrument has clear language and can be carried out as written, the rules of construction are not necessary. Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1005, 974 P.2d 569 (1999). Whether a written instrument is ambiguous is a matter of law subject to de novo review. Investcorp, L.P. v. Simpson Investment Co., L.C., 267 Kan. 840, 847, 983 P.2d 265 (1999).
Slawson claims that the farmout agreement allowed it to attempt to produce from other geologic formations within the Nix- #1-15 wellbore at any time, subject only to its duty to act as a prudent operator. In order to determine whether Slawson’s claim has merit, a general understanding of farmout agreements is necessary. A farmout agreement has been defined as
“a transaction where the owner of an oil and gas lease (called the farmor [or assignor]) agrees to an assignment of a part of a lease to one (called the farmee [or assignee]) who agrees, as consideration for the assignment, to drill a well to a certain depth or condition. The farmor normally retains an overriding royalty (a noncost-bearing interest), convertible to a working interest in that part of the lease to be assigned.” Hemingway, The Farmout Agreement: A Story Short But Not Always Sweet, 1 Natural Resources and Environment 3 (Spring 1985).
In order to understand the farmout agreement, it is helpful to think of the rights to land three dimensionally. Upon gaining production, Slawson became entitled to an assignment of production rights to a certain area defined both geographically (by surface area) and geologically (by depth). Specifically, upon gaining production of oil, as in the present case, Slawson became entitled geographically to an assignment of the 80-acre tract on which the well is located. Geologically, Slawson was entitled to an assignment of “the productive formation or formations found in the test well.” Additionally, it is important to note that the parties agree that Slaw-son was not entitled to an assignment of rights to potentially productive formations by simple drilling through the formations. Some farmout agreements provide for such rights, but this was not the type of agreement utilized in this case.
Slawson maintains that the district court’s interpretation of the farmout agreement placed Slawson in a “catch 22” situation. According to evidence presented at the hearing by First National’s own witness, a prudent operator should not commingle production from different formations within a well. Slawson claims that if it initially commingled production from multiple depths within the Nix #1-15 wellbore, then it would have violated its implied duty to act as a prudent operator. Therefore, Slawson claims that it was initially left with the choice of either losing its ability to produce from multiple formations within the Nix #1-15 wellbore or violating its duty as a prudent operator.
Slawson relies on Holly Energy v. Patrick, 239 Kan. 528, 722 P.2d 1073 (1986), in support of a proposition that broadly written farmout agreements should not be construed to limit the parties’ development rights absent limiting language within the documents. Holly is distinguishable from the present case because it only deals with geographic and not geologic assignment rights. Furthermore, as First National asserts, the farmout agreement in this case specifically contains limiting language agreed to by the parties.
Here, First National complied with the farmout agreement by assigning Slawson an 80-acre tract geographically and the productive Chester formation geologically. The farmout agreement did not prevent Slawson from acquiring rights to formations other than the one that was initially assigned by First National. Instead, the farmout agreement states:
“Upon completion of the test well as a well capable of producing oil and/or gas in commercial quantities . . . Assignor agrees to assign to Assignee all of Assignor’s operating rights and working interest in and to the Lease Acreage as herein defined, limited to the productive formation or formations found in the test well to be located in Section 15-33S-33W, Seward County, Kansas.”
Furthermore, the farmout agreement provided that “during the drilling, testing and completion” of the test well, Slawson was required “to make adequate tests to determine if the well is capable of producing oil or gas in economic quantities from the objective formation and from all prospective formations encountered.” (Emphasis added.) If Slawson had performed testing and had gained capable production from multiple formations during the drilling and completion of Nix #1-15, First National would have been obligated to assign its rights to those formations as well. However, the farmout agreement does not allow Slawson to attempt to produce from those formations nearly a decade after initially competing the Nix #1-15 wellbore.
The farmout agreement also allowed Slawson to drill option test wells under certain conditions. Specifically, tire farmout agreement states in relevant part:
“If the initial test well contemplated by this agreement is completed as either a producer or a dry hole, Assignee shall have the exclusive option for 180 days from completion of the initial test well to commence continuous drilling for additional test wells (called ‘option test wells’) on the Lease Acreage, and the Assignee shall continue to have such exclusive option so long as no more than 180 days shall lapse between completion of one well as either a producer or a dry hole, and commencement of a subsequent well. Completion, as used herein, shall be the date of the release of the completion rig for a well on which a completion attempt is made, and shall be the date of drilling rig release for a well which was a dry hole and on which no completion attempt was made.”
Therefore, if Slawson desired to test additional formations, it could have drilled option test wells within 180 days of completing the Nix #1-15.
We agree with the district court that the unambiguous language of the farmout agreement shows that Slawson did not acquire the right to attempt to produce from other formations after the initial completion of the test well. Slawson had the ability to perform testing and determine capable production from multiple formations during the drilling and completion of the test well. Additionally, Slawson could have drilled option test wells to produce from other formations within 180 days of completing the Nix #1-15. The farmout agreement does not give Slawson any rights to other formations beyond these two options.
The district court found the farmout agreement to be unambiguous and did not consider parole evidence in interpreting the agreement. Had the district court considered parole evidence, however, we note there was substantial evidence in the case supporting First National’s interpretation of the agreement. A memo written by Slawson’s division operation manager on December 29, 2000, indicates that Slawson believed it lost its rights to attempt to produce from other formations within die Nix #1-15 wellbore. In this memo, the division manager claimed that an amendment to the farmout agreement would be necessary to attempt to produce from the Marmaton formation using the Nix #1-15 wellbore. If Slawson was entided to recomplete the Nix #1-15 under the farmout agreement, then no amendment would be necessary. Additionally, the farmout agreement Slawson entered into with Cudd Petroleum Corporation on a separate tract of land shows that Slaw- son knew how to draft a farmout agreement that would more readily allow assignment of multiple formations within a wellbore.
In conclusion, the farmout agreement utilized by the parties does not malee it simple for Slawson to attain an assignment to multiple formations. However, the agreement is clear and unambiguous and there is no evidence indicating that was not the intent of the parties. Accordingly, the district court did not err in granting First National’s motion for summary judgment on Slawson’s claims.
Cross-appeal
First National cross-appealed from the district court’s grant of summary judgment in favor of Slawson on First National’s counterclaims. First National asserted two counterclaims, but only addressed one of these claims on appeal. First National claims that the Nix #1-15 well was not productive and, according to the farmout agreement, First National was entitled to take over the well. As previously indicated, the interpretation and effect of a legal instrument is a question of law. Unrau, 271 Kan. at 763.
First National points to Exhibit 3 of the farmout agreement in support of its argument. This exhibit states in relevant part:
"If any well drilled hereunder is not completed as a producer of oil and/or gas in commercial quantities, and/or [Slawson] proposes to plug and abandon any well drilled hereunder, [Slawson] shall notify [First National] of its intention and [First National] will have 24 hours if a drilling rig is on such location or 30 days if no drilling rig is on such location in which to elect to take over such well and conduct further operations thereon at [First National’s] sole cost and expense. ... In the event [Slawson] has already earned an assignment for such test well, [Slawson] shall reassign such rights pertaining to such test well.”
The issue involved interpretation of the term “in commercial quantities” as used in the farmout agreement. The district court determined that Slawson only had to show that the income from the well exceeded the expenses of operating the well from month to month. Slawson was not required to show that the total productivity of the well would be greater than the monthly operating costs, as well as the cost of drilling the well.
Kansas case law has not established a test for determining whether an oil well is producing “in commercial quantities” under a farmout agreement. However, we believe the provision should be interpreted consistently with the phrase “in paying quantities” as used in an oil and gas lease habendum clause. It is generally accepted that the phrase “in paying quantities” as used in an oil and gas lease habendum clause means production of quantities of oil or gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs or equipping costs are never recovered, and even though the undertaking as a whole may thus result in a loss to the lessee. Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 311, 553 P.2d 885 (1976). Under this interpretation, the district court correctly determined the Nix #1-15 was productive.
This case is similar to Texaco, Inc. v. Fox, 228 Kan. 589, 618 P.2d 844 (1980). In Texaco, the court had to determine the meaning of the term “commercial quantities” in a clause reserving mineral rights in a conveyance of land. The court stated that “commercial quantities” as used in a mineral reservation clause has the same meaning as “paying quantities” as used in a habendum clause of an oil and gas lease. 228 Kan. at 592.
Here, if Slawson did not continue to produce from the Nix #1-15 in “commercial quantities,” then First National would have the right to taire over the well. We agree with the district court that Slawson must only show that the Nix #1-15 was gaining a profit over its monthly operating expenses. First National does not claim that under this reasoning the well was not sufficiently productive. Accordingly, the district court did not err by granting Slawson summary judgment on First National’s counterclaim.
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Pierron, J:
Ryan Patrick McCreaiy pled guilty to driving under the influence and assault on a law enforcement officer in one case, and to driving under the influence in another case. He was granted 24 months’ probation in both cases. In the former case, his probation was extended for an additional 24 months based on execution of a voluntary extension. His probation in both cases was revoked due to his continued consumption of alcohol in violation of his community corrections conditions. In the former case, Mc-Creaiy argues his voluntary extension was not permissible under K.S.A. 2003 Supp. 21-4611. In the later case, he argues the trial court erred in deciding it had no jurisdiction to consider his motions for modification of his sentences pursuant to the traffic code. The two cases have been consolidated on appeal. We affirm.
McCreaiy first argues his due process rights were violated when the district court allowed his probation to be extended without a hearing and a judicial finding of necessity where his waiver was not made in open court. We disagree.
K.S.A. 1999 Supp. 21-4611(c)(5), which is now K.S.A. 2003 Supp. 21-4611(c)(8), states:
“The court may modify or extend the offender’s period of supervision, pursuant to a modification hearing and a judicial finding of necessity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term.”
McCreary signed a voluntary extension of probation before his probation time period had expired. The extension provided that an additional time period was necessary because the balance of the court costs and fines would not be satisfied by the end of the probation period. The trial court executed the order before Mc-Creary’s probation had expired. The order has a detailed acknowledgment of rights:
“I further acknowledge that I have the right to an open hearing before the District Court of Johnson County, and may require the Intensive Supervision Officer and/or the Johnson County District Attorney to put on strict proof as to why my Order of Probation should be extended, in accordance with K.S.A. 22-3716.
“I hereby knowingly, with full understanding, waive my rights to: An open hearing on the extension of my Order of Probation; my right to be represented by counsel; my right to court appointed counsel if I am unable to employ counsel; and rights to call witnesses and present evidence for my benefit as afforded me in accordance with K.S.A. 22-3716. Further, I knowingly and with full understanding agree to the extension of my Order of Probation for a period of 24 months, or until the 17th day of May, 2004, or said balance is paid in full.”
McCreaiy does not challenge the voluntariness of the waiver, he simply argues that for the waiver to be valid, it must occur at a modification hearing before the trial court where a judicial finding of necessity is made. It seems McCreary is attempting to invoke the same stringent rules for protecting a defendant’s constitutional rights as are applied when the court accepts a guilty plea. See K.S.A. 2003 Supp. 22-3210(3) (“requiring that in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the charge and the consequences of the plea”). We will not apply the same panoply of rights in probation revocation proceedings. See, e.g., State v. Billings, 30 Kan. App. 2d 236, 238, 39 P.3d 682 (2002) (revocation of probation is not part of a criminal prosecution, and the full panoply of rights due a defendant in a criminal case is not applicable to a probation revocation proceeding).
McCreary voluntarily waived most procedural rights associated with the extension of his probation. Had he wished to have a hearing, he could have had one. Since he wanted an extension, he probably saw no reason to take the time out of his day to attend a hearing to get what could be obtained through a written agreement and waiver. We find this waiver unchallenged on appeal, and the district court’s acceptance of the waiver prior to the expiration of McCreary’s pending probation period satisfied the “modification hearing and a judicial finding of necessity” requirements of K.S.A. 2003 Supp. 21-4611(c)(8).
McCreary also argues the district court erred in finding that it had no jurisdiction to consider his motion to modify his sentence for driving under the influence under K.S.A. 8-1567.
McCreary acknowledges that this issue was decided adverse to his position in State v. Anthony, 274 Kan. 998, 58 P.3d 742 (2002). However, he argues Anthony was wrongly decided. We are duty bound to follow tire precedent of the Kansas Supreme Court absent some indication that it is departing from its previous position. State v. Maybin, 27 Kan. App. 2d 189, 205, 2 P.3d 179, rev. denied 269 Kan. 938 (2000). McCreary does not demonstrate any evidence the Supreme Court is altering its view in Anthony; he simply contends tlrat Anthony was wrongly decided.
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Greene, J.:
The natural non-Indian father of J.J.G. appeals the trial court’s decision to terminate his parental rights, alleging noncompliance with the Indian Child Welfare Act (ICWA) and insufficiency of evidence. We affirm.
Factual and Procedural Overview
J.J.G. was bom January 15,1991, to her Indian mother, a member of the Crow Tribe, and her non-Indian father. Father moved to Kansas in 1996 with the child after learning that mother had filed sexual abuse reports against him in Montana, leaving mother suffering from a stroke and chronic alcoholism. In February 2001, J.J.G. was placed in the Wichita Children’s Home after she herself made allegations of sexual abuse against her father. Father denied the allegations.
On March 5, 2001, a child in need of care (CINC) petition was filed for J.J.G. based on the allegations of sexual abuse. At a temporary custody hearing, the court noted that ICWA might apply and required notice to mother. The State sent the requisite notice to mother and copied the director of social services for the Crow Tribe. On April 5,2001, an attorney for the Crow Tribe of Montana entered his appearance on behalf of the Tribe, intervening in the custody proceedings. The attorney participated in pretrial conferences by phone and consistently indicated the Tribe’s interest but asked the State to proceed with the matter.
In October 2001, father was convicted of one count of rape and five counts of sexual exploitation of a child (J.J.G.) and sentenced to 155 months’ imprisonment. In December 2001, J.J.G. was adjudicated to be a child in need of care and ordered to remain in an out-of-home placement.
At an April 2002 review hearing, mother provided to the court a certificate of achievement showing that she had completed positive Indian parenting classes. The court found that mother was receiving services through the Crow Tribe, but that the Tribe had not sought to exercise jurisdiction over J.J.G. The court also received an authorization from the Crow Tribe licensing mother’s maternal half-sister and brother-in-law for the care of J.J.G. The permanency plan included placement consistent with the Tribe’s license and with the intent that the child be reintegrated with her Indian mother.
On May 31, 2002, the State filed a motion to terminate father’s parental rights, alleging father was unfit because of his criminal convictions and imprisonment. On the same date the court conducted a review hearing and the Tribe’s attorney, mother, and a tribal representative participated by phone. During the hearing the court advised the parties of the filing of the State’s motion to terminate father’s parental rights, and further proceedings on that motion were scheduled. Notwithstanding tribal participation in this scheduling, notice of the termination hearing was also sent to the Tribe’s attorney by registered mail, restricted delivery, and the record reflects receipt of same by the attorney.
After an evidentiary hearing on August 16, 2002, the court terminated the parental rights of father, concluding inter alia that father engaged in behavior that was cruel and abusive to the minor child, that he failed to adjust his circumstances, that he failed to maintain visitation with the child, and that he was unfit now and for the foreseeable future. The Tribe did not appear or participate in the hearing. Father timely appeals.
To What Extent Did ICWA Apply, and Was There Compliance with its Applicable RequirementsP
Father first claims that the trial court erred in failing to comply with specific requirements of ICWA, including: (i) notice requirements; (ii) the requirement for parental termination to be supported by qualified expert witnesses; and (iii) the requirement for a specific evidentiary finding beyond reasonable doubt.
We acknowledge at the outset that ICWA initially applied to these proceedings because J.J.G. was an “Indian child” and parental termination proceedings are expressly defined as “child custody proceedings” under ICWA, 25 U.S.C. § 1903 (4) and (l)(ii) (2000), respectively. Father was a “parent” as defined in ICWA, 25 U.S.C. § 1903(9). Moreover, our court has previously held that a non-Indian father has standing to seek application of ICWA. In re H.D., 11 Kan. App. 2d 531, 532, 729 P.2d 1234 (1986). Other courts have agreed. See, e.g., K.N. v. State, 856 P.2d 468, 474 n. 8 (Alaska 1993).
With regard to the notice issue, father apparendy claims that the notice of the termination hearing technically failed to meet the requirement for notice to the Trihe. ICWA states:
“In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” 25 U.S.C. § 1912(a) (2000).
The record shows that the Crow Tribe of Montana, through its attorney, was already a participating party in custody proceedings for J.J.G. long before the termination proceeding started and was present by phone when the scheduling on the parental termination proceeding was addressed. Moreover, the formal notice of the termination hearing was received by tire Tribe’s attorney in person and the postal receipt card bearing his signature was returned to the State. Even if there had been some technical non-compliance in mailing formal notice of the termination proceeding, the Tribe’s actual participation in all custody proceedings regarding J.J.G., including scheduling for the termination proceedings, renders father’s notice argument of no legal consequence. Under the unique facts of this case, literal compliance with ICWA’s required notice to the Tribe for termination of parental rights of a non-Indian parent was unnecessary because there was substantial compliance with the requirements and the Tribe was already participating through its counsel in related custody proceedings.
Father’s remaining claims of noncompliance with ICWA are based on its technical evidentiary requirements, including a provision requiring parental termination to be “supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f). The parties concede that this requirement was not met, since the termination hearing included no testimony of “qualified expert witnesses,” and we also note that the court did not make the required finding.
The State argues that although father may initially have standing to argue application of ICWA, its technical evidentiary requirements need not be applied under these circumstances since tribal interests were fully protected by its participation, by application of parallel requirements of Kansas law, and by a result that is consistent with stated intent in ICWA. We agree.
Congressional intent is expressly stated in ICWA as
“to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” 25 U.S.C. § 1902 (2000).
Our Supreme Court has previously stated that it is appropriate to consult the policies underlying ICWA and to hold ICWA inapplicable in circumstances where the application of ICWA provisions would not serve those policies. See In re Adoption of Baby Boy L., 231 Kan. 199, 205-06, 643 P.2d 168 (1982). Baby Boy L. involved proceedings for the adoption of a child born out of wedlock to a non-Indian mother and an Indian father. Mother consented to the adoption on tire day the child was bom and prospective adoptive parents filed an adoption petition. The Kiowa Tribe of Oklahoma sought to intervene, and father and the Tribe sought transfer of the case to the tribal court. The trial court found ICWA inapplicable, denying the case transfer. The Supreme Court affirmed the trial court, holding that the overriding concern of Congress in enacting ICWA was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment. Congress did not intend “to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother.” 231 Kan. at 206. The court further stated ICWA “could have been more clearly and precisely drawn” but to apply ICWA under those circumstances would violate the policy and intent of Congress rather than uphold them. 231 Kan. at 206.
Other state courts have recognized the importance of applying or refusing to apply ICWA consistent with congressional intent. The Oklahoma Supreme Court refused to apply ICWA in similar circumstances, basing its decision on the underlying purpose of ICWA—prevention of removal of Indian children from an existing Indian family situation and the resultant breakup of the Indian family. In re Adoption of D.M.J., 741 P.2d 1386 (Okla. 1985). The court stated:
“[T]he ICWA applies only in those situations where Indian children are being removed from existing Indian family environments. Under the facts of this case where the Indian child since 1976 has been in the custody of her non-Indian mother, where the child is not being removed from the custody of an Indian parent, and is not being removed from an Indian environment, the ICWA does not apply.” 741 P.2d at 1389.
• Here, the termination of father s parental rights would not cause J.J.G. to be removed from custody of an Indian parent or from her extended Indian family. The record shows that the permanency plan was made for placement of J.J.G. with her maternal half-sister and brother-in-law in Montana with the ultimate goal of integrating J.J.G. into the home of her Indian mother. Under the unique facts of this case, literal compliance with ICWA’s evidentiary requirement that parental termination to be “supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” was unnecessary because the Tribe elected not to challenge the termination of parental rights, and termination of the non-Indian parent’s rights was consistent with reintegration of the child with his or her native heritage. We reject father’s claims of error in this regard.
Was the Termination of Parental Rights Supported by Substantial Competent EvidenceP
The standard of review in a termination of parental rights is whether substantial competent evidence supports the trial court’s findings. The appellate court does not reweigh the evidence or pass upon the credibility of witnesses, and the evidence is reviewed in the light most favorable to the party prevailing below. Although the State has the burden to prove parental unfitness by clear and convincing evidence before the trial court, that standard does not affect the appellate court’s scope of review. See In re S.M.Q., 247 Kan. 231, 234, 240, 796 P.2d 543 (1990).
The Kansas Code for tire Care of Children provides that the court may terminate parental rights when the court finds by clear and convincing evidence that a parent is unfit by reason of conduct or condition which renders the parent unable to care properly for the child and the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2003 Supp. 38-1583(a). The statute lists nonexclusive factors the court shall consider in determining if severing parental rights is in the best interest of the child. K.S.A. 2003 Supp. 38-1583(b). While proof of any one of these statutory grounds may be sufficient to terminate parental rights, the court should consider all applicable factors, giving primary consideration to the physical, mental, or emotional condition and needs of the child. K.S.A. 2003 Supp. 38-1583(e).
The trial court found father to be unfit by reason of conduct or condition which rendered him unable to care properly for J.J.G. and such conduct or condition was unlikely to change in the foreseeable future. In making this determination, the court considered the following statutory factors under K.S.A. 2003 Supp. 38-1583: (b)(2)—conduct toward the child of physically, emotionally, or sexually cruel or abusive nature; (b)(4)—physical, mental or emotional neglect of the child; (b)(5)—conviction of a felony and imprisonment; (b)(7)—inability to rehabilitate the family through reasonable efforts of appropriate public or private child care agencies; (b)(8)—lack of effort on the part of the parent to adjust the parent’s circumstances, conduct, or conditions to meet the needs of the child; (c)(1)—failure to assure care of the child in the parental home when able to do so; (c)(2)—failure to maintain regular visitation, contact, or communication with the child; and (c)(3)—fail ure to carry out a reasonable plan approved by the court directed to the reintegration of the child into the parental home.
Father complains that the trial court did not consider as a mitigating factor that he has been incarcerated and was unable to attend parenting classes or to maintain visitation. Moreover he notes that his conviction is on appeal and that these mitigating circumstances merited “different standards,” citing In re Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987).
We agree with the trial court, however, that father s convictions do not require affirmance on appeal in order to serve as presumptive proof of unfitness. In re M.E.B., 29 Kan. App. 2d 687, 29 P.3d 471 (2001). Father s multiple convictions for rape and sexual exploitation of his own daughter are presumptive evidence that he is unfit for parenthood. K.S.A. 38-1585(a)(2). Moreover, even if incarceration mitigated father s parent education or visitation, we conclude that termination of father s rights was justified for numerous other reasons that are supported by substantial competent evidence.
Affirmed. | [
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Lewis, J.:
This appeal was instituted by the State of Kansas and the State Self-Insurance Fund to modify an award made to Patricia Ponder-Coppage.
In August 1994, claimant suffered a work-related accident while employed by the Winfield State Hospital. Her left shoulder, arm, and cervical spine were injured. She returned to the same job in the spring of 1996. An agreed award was filed in July 1996, awarding claimant 20.66 weeks of permanent partial disability at the rate of $252.32 per week based upon a 5% functional impairment rating.
In 1997, claimant’s pain increased and she had less mobility, and she was given an accommodated job in June. She accepted a voluntary layoff offered by the State in July 1997 due to the hospital closing in December 1997. She did not later apply for any other jobs.
On October 12, 1998, claimant filed an application for review and modification in which she maintained that her condition had worsened, entitling her to work disability. The administrative law judge (ALJ) denied her motion, and she applied for review with the Kansas Workers Compensation Board (Board).
The Board concluded claimant retained the ability to work but had not presented any evidence of work task loss and had a 46% wage loss after imputing minimum wages, making her work disability 23%. The Board concluded that a reduction in the award from January 1998 through April 1998 would be erroneous for the reason that the Workers Compensation Act (Act), K.S.A. 44-501 et seq., did not provide for any credit or offset of weeks for which no permanent partial disability benefits were paid.
Ultimately, the Board held that under K.S.A. 44-528(d), the effective date of the modification award was April 12, 1998, or 6 months before claimant filed her application; her disability increased on January 1,1998, the date the hospital closed, and claimant was entitled to 74.39 weeks at $252.32 per week, or $18,770.08, for permanent partial general disability based on a 23% work disability.
There was a dissenting opinion which maintained that claimant was entitled to benefits only for 59.96 weeks of work disability and not for the 14.43 weeks between January 1, 1998, and April 12, 1998. The dissent’s rationale was based on the fact that claimant’s application was filed in October 1998, more than 6 months after the date her disability increased. It was the position of the dissent that the legislative intent was to limit the effective date of a modification award to 6 months prior to the application.
The State’s position is that the effective date of a modification award is the date the claimant’s condition increases or decreases and that the modification award cannot award compensation for work disability beyond 56.96 weeks. By doing so, according to the State, claimant is being compensated for 14.43 weeks that occurred more than 6 months before she filed her application. Claimant argues the construction offered by the State makes K.S.A. 44-528(d) a statute of limitations and restricts the amount of compensation for her increased disability. It is claimant’s position that this issue is not about the “effective date” of the Board’s modification award but about whether she is entitled to receive full compensation for her disability.
We are being asked to interpret K.S.A. 44-510e(a) and K.S.A. 44-528(d). This is a question of law over which we have unlimited review. See Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666 (2001).
Claimant places her reliance on the language of K.S.A. 44-510e(a)(3), which states: “In any case of permanent partial disability under this section, the employee shall be paid compensation for not to exceed 415 weeks following the date of such injury, subject to review and modification as provided in K.S.A. 44-528 and amendments thereto.” (Emphasis added.)
The effective date of an award is the day after the date noted in the award. K.S.A. 44-525(a). If there is an increase in functional impairment or work disability, the award may be modified by increasing or diminishing the compensation. However, the date for any modification based upon an increase or diminishment in the functional impairment or work disability “shall be effective as of the date that the increase or diminishment actually occurred, ex cept that in no event shall the effective date of any such modification be more than six months prior to the date the application was made for review and modification under this section.” (Emphasis added.) K.S.A. 44-528(d).
K.S.A. 44-528(d) clearly states that the effective date of a modified award is 6 months before the date that the application for review and modification was filed. In this case, the Board concluded that the effective date of the award was April 12,1998. We agree with the Board and affirm that decision.
In Wheeler v. Boeing Co., 25 Kan. App. 2d 632, 967 P.2d 1085 (1998), rev. denied 266 Kan. 1116 (1999), the claimant received 115.14 weeks of permanent partial disability benefits based on a work disability. Claimant was later given a job at a comparable wage and filed an application for modification. The ALJ concluded that Wheeler was only entitled to compensation based upon a 10.5% functional impairment for 42.58 weeks and concluded he was not entitled to further compensation because he had already been paid for 115.14 weeks at the higher work disability amount. In Wheeler, the Board concluded that when the basis of “compensation changes from work disability to functional disability (or vice versa), [the claimant is] entitled to a minimum of benefits based upon the lowest disability rating. Moreover, the employer will never be liable for more than the maximum benefits based upon the highest disability rating.” 25 Kan. App. 2d at 635.
In Wheeler, we said that a claimant is only entitled to one recovery for a work-related accident and that the Board’s methodology recognized this concept by giving the employer credit for the permanent partial disability benefits it had paid, whether they were based upon work disability or functional impairment. 25 Kan. App. 2d at 636.
K.S.A. 44-528(d) is not a statute of limitations. It authorizes modification of the award based upon changes in the claimant’s condition and entitlement to benefits as set out by the statutes. The effective date language in 44-528 benefits both parties. If the condition is increased or decreased, the extent or duration of a claimant’s disability and the employer’s liability are redetermined under K.S.A. 44-510e(a). The net result of this is that the em ployer’s previous payments are deducted from the modified award so that the claimant receives the maximum benefits for the disability and the employer does not overpay for the disability.
K.S.A. 44-510e(a) sets forth the number of weeks that compensation is received but limits that compensation to 415 weeks from the date of the work-related accident. Consequently, even if the effective date of a modified award is 6 months before the application was filed, the modified award only compensates for the remaining unpaid weeks, if any, that are proven but not yet expired. If an employer has paid the maximum amount, the modified award does not offer further payment.
Applying the calculations to claimant’s accident on August 23, 1994, made August 16, 2002, the end of the 415 weeks for which she could receive benefits. The maximum number of weeks for which she was entitled to compensation based upon a 23% work disability was 95.05 weeks. The Board found that after deducting the previous payments for 20.66 weeks for permanent partial disability based upon a 5% functional impairment, claimant was entitled to 74.39 weeks at $252.32 per week, or a total of $18,770.08, for her permanent partial general disability based upon a 23% work disability. Because her application for modification was filed in 1998, the remaining 74.39 unpaid weeks occurred before the 415 weeks authorized in K.S.A. 44-510e(a) had expired.
Following the dictates of Wheeler, we hold the Board correctly calculated claimant’s benefits as authorized under 44-510e(a).
We affirm the decision of the Board. Since claimant has already received benefits in the amount of $5,213.94 for 20.66 weeks of benefits, she is entitled to an additional $18,770.08, which represents the unpaid compensation for 74.39 weeks of benefits.
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Rogg, J.:
Plaintiff Homer Morgan appeals the district court’s decision to grant summary judgment in favor of defendant City of Wichita (City). The City cross-appeals from tire court’s decision as well. Morgan claims the district court committed error by granting summary judgment to the City. The City cross-appeals, claiming that the trial court should have dismissed the case on jurisdictional grounds and that the trial court erred in determining that Morgan did not have to join neighboring landowners. We affirm.
This appeal concerns the use of a particular piece of property owned by Homer Morgan. The subject property is located at 518 North Anna in Wichita, Sedgwick County, Kansas. The property was annexed by the City in 1954. In 1970, Morgan constructed a building on the property, and since November 1977, the property has been leased to a variety of different parties. Currently, the south half of the property is zoned as limited commercial and the north half of the property is zoned as B multifamily.
In November 1977, Morgan leased the property to David L. Wiley for use as a tavern. After that lease expired, Morgan leased the property to Robert Aldershof and Cassandra Hamden. Morgan brought suit to evict Aldershof and Hamden on the grounds that they had failed to operate a tavern on the property. Morgan won a judgment and eventually had them evicted.
In November 1981, Morgan leased the property to the V.F.W. Wichita Memorial Post #3115 (VFW). The VFW is a not-for-profit corporation incorporated under Kansas law. In 1981, the VFW applied for a cereal malt beverage license with the City. The record indicates that the VFW was issued a cereal malt beverage license in 1982,1983,1985, and 1986. City records reflect that the VFW’s license was not renewed in 1987. For each year from 1989 to 1999, the VFW sought and received a liquor license from the City. Each year, the VFW applied for and was given a liquor license as a class A club. In addition, from 1990 to 1997, the VFW submitted renewal applications for a license from the Alcoholic Beverage Con trol Division of the Kansas Department of Revenue. Again, the renewal applications indicated that the VFW was seeking a class A club license.
In January 1991, the City amended its ordinances to prohibit the establishment of private clubs, taverns, and drinking establishments within 200 feet of any church, public park, residential zoning district, or public or parochial school. In March 1996, the City adopted the Wichita-Sedgwiclc County Unified Zoning Code (Unified Zoning Code) as its zoning regulations.
The VFW leased the property until May 2000, at which time the VFW moved to a new location. In August 2000, Morgan leased the property to Dan Cochran for use as a drinking establishment. Cochran apparently applied for a drinking establishment license, but the City denied his application. In May 2001, Morgan leased the property to himself as a representative of Silent Scope, Inc., doing business as Orchard Pub & Club. Morgan applied for and received a state liquor license for the club. Morgan also applied for a city liquor license as a drinking establishment, but the City’s Office of Central Inspection denied his application on the grounds that the zoning ordinances did not allow “by right” a proposed drinking establishment on the property.
Thereafter, Morgan filed a petition for a writ of mandamus compelling the City to issue the license. Morgan later amended his petition to state that he was seeking a declaratory judgment on whether use of the property constituted a lawful nonconforming use. Morgan continued to seek a writ of mandamus.
The City answered Morgan’s petition and later filed a motion for full or partial judgment on the pleadings. The City argued, among other things, that a writ of mandamus was not an appropriate remedy in this case, that Morgan had failed to exhaust his administrative remedies, and that Morgan had failed to join the necessary parties under K.S.A. 60-219 and 60-1712. Morgan responded to the City’s motion and agreed to dismiss his request for a writ of mandamus. Morgan, however, continued to assert that he was entitled to a declaratory judgment. The district court in a brief journal entry denied the City’s motion for judgment on the plead ings. The court concluded that it had jurisdiction to consider Morgan’s declaratory judgment action.
On July 10, 2002, Morgan filed a nonconformity registration form with the City. On the form Morgan stated that the property had been “operated as an establishment for sale and consumption of alcoholic beverages since construction of the premises prior to 1954.”
Later in July, tire City filed a motion for summary judgment. The City argued that: (1) the VFW’s use of the property was a fully conforming use; (2) even if the VFW’s use was nonconforming, Morgan cannot shift to a less conforming use as a tavern or drinking establishment; and (3) the district court lacked jurisdiction because Morgan failed to register his alleged nonconformity prior to filing suit.
The district court concluded that the VFW’s operations were a permitted use and, thus, there was no conforming use under the Zoning Code. The court granted the motion for summaiy judgment, and Morgan now appeals.
Summary judgment
Morgan initially asserts that the district court erred by granting summary judgment in favor of the City. The standard of review for a motion for summary judgment is:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
In the case at bar, the district court set forth its findings and conclusions concerning the City’s motion for summary judgment in open court. The court commented:
“Some of the issues Mr. Kaplin raises certainly are subject to factual dispute, factual controversy, whether a Class A club selling beer and/or alcohol is truly any different than a tavern or drinking establishment selling beer and/or alcohol for profit. . . .
“I’m going to find that notwithstanding the quite probable factual disputes on the issues I already covered, on a legal issue and based on the pleadings as they appeared to me, for purposes of this summary judgment motion, the main and first legal question I have to make is, was there a nonconforming or permitted use under the zoning code as the V.F.W. existed? And I find that under the zoning code, when the V.F.W. was operating as a fraternal-—-sorry—community assembly, which was a permitted use and was not a nonconforming use under the zoning code. The V.F.W. lost their lease or chose to give up its lease, not sure which, but in any event, the lease ended sometime in 2000, and there were attempts, I believe two separate attempts, to then come in and obtain licensure to operate the facility as a for profit tavem/drinking establishment, however you want to characterize it.
“Under tire zoning code, those taverns/drinking establishments are separate and distinct from the V.F.W. community assembly. And as such, a tavern or a drinking establishment, any of those types of classifications other than a Class A community assembly entity, such as V.F.W. would be, would be a nonconforming usage. And there simply was no nonconforming—was no request for nonconforming usage made before the enactment of the ordinance restricting such use in this matter.
“Whether the issues—whether the issue of a tavern or drinking establishment being of the same general character of the V.F.W., that may be the case; that may not be the case. I simply don’t know, but under the zoning code as it was presented to me, as a matter of law, the V.F.W. clearly was permitted use, taverns and drinking establishments clearly are nonconforming uses. And on that basis, I am going to grant the City’s motion for summary judgment.”
Morgan maintains that the court erred in its decision. Morgan alleges that tire subject properly was used to sell beer and alcohol prior to the property becoming subject to the zoning authority of the City. He further claims that since that time, there has not been a fundamental change in the use of the property, i.e., the property has continually been used for the sale of beer and alcohol. As such, he argues that because there has not been a fundamental change in the use of the property, the property retains its status as a lawful, nonconforming use. Morgan cites three cases to support his arguments. See Union Quarries, Inc. v. Board of County Commissioners, 206 Kan. 268, 478 P.2d 181 (1970); State v. Scherer, 11 Kan. App. 2d 362, 721 P.2d 743 (1986); Triangle Fraternity v. City of Norman, 63 P.3d 1 (Okla. 2002).
Initially, the City asserts that Morgan cannot establish a lawful, nonconforming use. The City’s argument continues that in the absence of a lawful, nonconforming use, Morgan’s arguments concerning whether there has been a fundamental change in the use of the property are irrelevant. The City’s predominant argument is that there cannot be a lawful, nonconforming use, because use of the property was “fully conforming” after at least 1996. Stated differently, the City claims that any alleged nonconformity in use became conforming following the City’s adoption of the Unified Zoning Code in 1996.
In Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 881, 69 P.3d 601 (2003), the Kansas Supreme Court discussed the concept of nonconforming use. The court noted that the concept of nonconforming use developed as a means to avoid confrontation with landowners by permitting landowners to continue their properties’ preexisting uses. 275 Kan. at 881. The court also stated: “We have defined such an ‘existing’ or ‘nonconforming use’ as ‘a lawful use of land or buildings which existed prior to the enactment of a zoning ordinance and which is allowed to continue despite the fact it does not comply with the newly enacted use restrictions.’ ” 275 Kan. at 881.
Under Kansas law, the right to a nonconforming use is to be strictly construed. See Goodwin v. City of Kansas City, 244 Kan. 28, 32, 766 P.2d 177 (1988). In addition, most courts place the burden of proving an alleged nonconforming use on the party claiming the nonconforming use. 244 Kan. at 33.
Morgan argues that the property could not lose its nonconforming status without evidence of a fundamental change in the property’s use. This argument presupposes a nonconforming use.
The record reveals that in 1996 the City adopted the Unified Zoning Code. The 1996 version of the Unified Zoning Code included the definitions for the terms “Club, Class A” and “Community Assembly.” The Code provided: ■
“Club, Class A means premises owned or leased by a corporation, partnership, business trust or association and which is operated thereby as a bona fide nonprofit social, fraternal, or war veterans’ club, as determined by the Director of Alcoholic Beverage Control of the Kansas Department of Revenue, for the exclusive use of the corporate stockholders, partners, trust beneficiaries or associates and their families and guests accompanying them.”
The Code further provided: “Community Assembly means an establishment providing meeting, recreational, educational, or social facilities for a private membership or non-profit association, primarily for use by members and guests. Typical uses include fraternal organizations, ‘Class A Clubs,’ philanthropic and eleemosynaiy institutions.”
The Code also sets forth the permitted uses for B multifamily district and limited commercial districts. According to the Code, community assembly is a permitted use under both B multifamily districts and limited commercial districts.
Following the adoption of the Unified Zoning Code, use of the property clearly conformed to the zoning regulations. At the time the Code was adopted in 1996, the VFW was leasing the subject property. The record indicates that the Kansas Department of Revenue considered the VFW to be a class A club in 1996. According to the Code, a class A club is characterized as a community assembly, which in turn is a permitted use under both B multifamily districts and limited commercial districts. Consequently, the VFW’s use of the property fully conformed to the City’s zoning regulations.
As previously mentioned, a nonconforming use is defined as “ ‘[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated.’ ” Goodwin, 244 Kan. at 32. Here, tire VFW’s use complied with zoning restrictions applicable to the property. The property’s use cannot be characterized as a nonconforming use.
In Pennridge Dev. Ent. v. Volovnik, 154 Pa. Commw. 609, 624 A.2d 674 (1993), a case cited by the City, Pennridge built an airport in 1966. At the time the airport was built, the township did not have a zoning ordinance; however, in 1970, the township enacted a zoning ordinance, which made the airport a nonconforming use. Years later in 1987, the township enacted a second zoning ordinance which classified a portion of the airport’s property as a conditional use. The issue in that case was whether the portion of the airport, which was zoned as a conditional use, remained a nonconforming use. In addressing that issue, the Pennsylvania court held that a conditional use is a permitted use. The court then stated: “Pennridge’s nonconforming use was converted by the Township’s 1987 zoning ordinance into a permitted use. Therefore, we hold that the trial court erred in determining that Pennridge retained a nonconforming use to operate an airport on the land at issue.” 624 A.2d at 675-76.
In the case at bar, any alleged nonconformity in use became conforming following the City’s adoption of the Unified Zoning Code in 1996. Morgan has failed to create a genuine issue of material fact as to whether the VFW’s use conformed to the zoning regulations. As such, the court did not err in granting summary judgment on this issue.
Jurisdictional grounds
The City cross-appeals and argues that the district court should have dismissed Morgan’s action because the court lacked subject matter jurisdiction. The City contends that the district court lacked subject matter jurisdiction because (1) Morgan failed to register the alleged nonconforming use prior to commencing this action, and (2) Morgan failed to exhaust his administrative remedies. A challenge to the district court’s subject matter jurisdiction raises a question of law, and as a result, this court’s standard of review is unlimited. See In re Marriage of Myers, 30 Kan. App. 2d 1223, 1225, 56 P.3d 1286 (2002).
The City claims that the district court lacked subject matter jurisdiction because Morgan failed to register the alleged nonconforming use prior to filing suit. The City points to the 1996 and 2001 versions of the Unified Zoning Code and argues that Morgan is barred from asserting the alleged nonconforming use. In contrast, Morgan maintains that the City’s arguments on this issue are without merit.
The 2001 version of the Unified Zoning Code discusses the registration of nonconformities. The Code provides in pertinent part:
“1. Rights conditional. The rights given to those using or owning property involving a nonconformity under this Art. VII or exemption under Sec. VII-A.3 are specifically conditioned on the registration of the nonconformity or exemption with the Zoning Administrator. Nonconformities or exemptions so registered shall be deemed to be lawful uses under the provisions of this Code, to the extent documented on the registration form.
“2. Registration process. Registration shall be required for nonconformities existing on die effective date of this Code, exemptions created by the adoption of tire Code adopted on March 25,1996, nonconformities arising because of a change in jurisdictional boundaries. There shall be no deadline for the registration required by this Sec. VII-I. The Zoning Administrator shall establish a process for tire registration of nonconformities and exemptions and shall establish a system for keeping records of the same. The Zoning Administrator shall provide registration forms for this purpose.”
The record in this case demonstrates that Morgan filed his petition in Februaiy 2002 and his first amended petition in March 2002. In July 2002, Morgan filed a nonconformity registration form with the City. Although Morgan filed his registration form after he had already filed suit, that fact does not prevent Morgan from asserting his claim that the property was a lawful, nonconforming one.
The Unified Zoning Code states that the rights given to an individual using or owning property involving a nonconformity under the Code are “specifically conditioned on the registration of the nonconformity.” In this case, Morgan is not seeking to assert or enforce a right involving the nonconformity, rather, he is seeldng a determination of whether the nonconformity exists. Consequently, the Code’s provisions requiring registration of the nonconformity do not apply in this instance. The district court did not err in this regard.
Next, the City contends that under both the Unified Zoning Code and K.S.A. 12-759(d), Morgan had the “ability” to appeal the decision of the superintendent of Central Inspection to the Board of Zoning Appeals. As such, the City argues that Morgan’s failure to pursue that appeal constitutes a failure to exhaust his administrative remedies. The City further argues that Morgan failed to exhaust his administrative remedies when Morgan did not apply for a conditional use permit. Morgan responds by asserting that this declaratory judgment is “not the type of case” which must be presented to the Board of Zoning Appeals. In addition, Morgan claims that he was not required to apply for a conditional use permit because applying for a conditional use permit would have been highly prejudicial to his claim of a nonconforming use.
According to K.S.A. 12-759(d), “[ajppeals to the board of zoning appeals may be taken by any person aggrieved, or by any officer of the city, county or any governmental agency or body affected by any decision of the officer administrating the provisions of the zoning ordinance or resolution.” It is uncontroverted that Morgan did not appeal to the Board of Zoning Appeals and that Morgan did not apply for a conditional use permit.
In Zarda v. State, 250 Kan. 364, 368-69, 826 P.2d 1365 (1992), the Kansas Supreme Court commented:
“Where there are no issues raised which lend themselves to administrative determination and the only issues present either require judicial determination or are subject to judicial de novo review, it follows that plaintiffs should be permitted to seek court relief without first presenting the case to the administrative agency.”
Accord In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 906, 47 P.3d 1275 (2002).
In Goodwin, 244 Kan. 28, the Kansas Supreme Court addressed a similar exhaustion of remedies issue. In 1983, the Goodwins purchased two tracts of land which were zoned as residential. Thereafter, the Goodwins operated a fill dirt business on the property. In 1984, the director of the City Planning Division and other City employees notified the Goodwins that their property was in violation of the city zoning ordinances. In response, the Goodwins filed a lawsuit, alleging that the operation of their business was a lawful nonconforming use. On appeal to the Kansas Supreme Court, the Cily argued that the district court lacked jurisdiction because the Goodwins had failed to exhaust their administrative remedies. The court quickly rejected the City’s arguments by stating:
‘Were the issue the reasonableness of the zoning, it would involve the City’s legislative enactment, which requires exhaustion of administrative remedies before the courts acquire jurisdiction. However, the issue here is whether the Good-wins have a vested right to continue their selling of fill dirt in an area zoned residential under the theory of nonconforming use. This issue is judicial rather than legislative and thus requires no exhaustion of administrative remedies.” 244 Kan. at 29-30.
In the case at bar, Morgan is seeking a determination of whether he has a vested right to operate a drinking establishment under a theory of nonconforming use. Based on Goodwin, this issue raises a judicial question and, therefore, does not require the exhaustion of administrative remedies. In addition, the City offers no authority for requiring Morgan to apply for a conditional use permit. Requiring Morgan to apply for a conditional use permits seems to be inconsistent with Morgan’s assertion of nonconforming use. As a result, the district court did not err by rejecting the invitation to dismiss Morgan’s lawsuit for failing to exhaust administrative remedies.
Neighboring landowners
Last, the City cross-appeals and claims that the district court should have required Morgan to join the neighboring landowners in this action. The City argues that the neighboring landowners have an “interest which would be affected by the declaration sought by [Morgan].” As such, the City maintains that the neighboring landowners were necessary parties, who should have been joined pursuant to either K.S.A. 60-1712 or K.S.A. 60-219(a). Based on our affirming the granting of the summary judgment, we need not take up this issue.
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Malone, J.:
The State of Kansas, the Wyandotte County Sheriff, and the Kansas Department of Corrections (KDOC) appeal the district court’s order granting Virgil Bruce McComb’s K.S.A. 2003 Supp. 60-1501 petition. McComb was convicted of aggravated indecent liberties with a child, served time in prison, and was ultimately placed on postrelease supervision. He has always maintained his innocence. The sole issue is whether McComb’s postrelease supervision can be revoked for his failure to participate in a sexual abuse treatment program (SATP) which requires McComb to accept responsibility for his crime. This is an issue of first impression.
Facts and procedural background
On August 28, 1996, McComb was convicted by a jury of four counts of aggravated indecent liberties with a child. The victim was his 10-year-old granddaughter. McComb received a sentence of 73 months’ incarceration, followed by 24 months’ postrelease supervision. At trial, McComb maintained he was not guilty.
McComb continued to claim his innocence throughout his incarceration. McComb was enrolled in the prison SATP, but he refused to sign an “admission of guilt.” As a result, McComb lost privileges and benefits, including good time credits. McComb was first released from prison in April 2002. One of the conditions of his release was participation in a recommended SATP. The SATP is recognized by the parties as a therapeutic treatment program. The program requires the participant to admit guilt for the underlying offense on the theory that the participant cannot be treated for a problem until responsibility is accepted.
McComb reported to his therapy sessions but refused to sign an admission of guilt. In August 2002, following a preliminary hearing before the KDOC and a final hearing before the Kansas Parole Board (Board), McComb was found to have violated the conditions of his release. He was returned to prison and served 133 days in custody.
McComb was again released from prison on the condition that he successfully complete the same treatment program. Again, McComb reported to his therapy sessions but refused to sign the admission of guilt. Following a preliminary and final hearing, McComb was found to be in violation of the terms of his release and was again returned to prison. McComb served another 120 days.
After McComb was released for the third time, he told the therapist that he was guilty of the crime. Two weeks later, McComb again denied his guilt and was expelled from the program. A third revocation process was initiated against McComb. This time McComb waived his preliminary hearing before the KDOC and also waived his final hearing before the Board. Instead, on July 22, 2003, McComb filed a K.S.A. 2003 Supp. 60-1501 petition, claiming that the SATP condition of his release violated his Fifth Amendment privilege against self-incrimination and his Fourth Amendment right to be free from unreasonable seizure.
The KDOC’s answer asserted that McComb’s waiver of his hearing before the Board constituted a failure to exhaust administrative remedies. The KDOC also argued that the SATP condition was constitutional as applied to McComb.
Following an evidentiary hearing, the district court granted McComb’s petition. On the waiver argument, the district court found that the parties had “stipulated” that if McComb had asserted his right to preliminary and final hearings, probable cause would have been found to revoke his release. On the merits of McComb’s claim, the district court found that the Board’s action in revoking McComb’s postrelease supervision was “arbitrary and capricious and constitutes an abuse of discretion and a denial of due process of law.” The district court ordered that McComb be released from prison and that he be allowed to serve the balance of his postrelease supervision term without the SATP condition.
This timely appeal follows.
Standard of review
“In reviewing a district court’s decision reviewing an agency action, the appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as does the district court. [Citations omitted.]” Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).
“While habeas corpus is the appropriate procedure for reviewing decisions of the Kansas Parole Board (Board), appellate review is limited to determining if the Board complied with the applicable statutes and whether its action was arbitrary or capricious.” Brown v. Kansas Parole Board, 262 Kan. 903, Syl. ¶ 2, 943 P.2d 1240 (1997); see Swisher v. Hamilton, 12 Kan. App. 2d 183, 185, 740 P.2d 95, rev. denied 242 Kan. 905 (1987).
“An inmate’s claim brought pursuant to K.S.A. 60-1501 et seq. must be based upon deprivation of a constitutional right or be subject to summary dismissal.” Ramirez v. State, 23 Kan. App. 2d 445, Syl. ¶ 3, 931 P.2d 1265, rev. denied 262 Kan. 962 (1987). Allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature. Swisher, 12 Kan. App. 2d at 184-85.
The question of whether an individual’s constitutional rights have been violated is a question of law. Hearst v. State, 30 Kan. App. 2d 1052, 1055-56, 54 P.3d 518 (2002). An appellate court’s review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Exhaustion of administrative remedies
The KDOC asserts that McComb failed to exhaust his administrative remedies when he waived his hearing before the Board on the third attempt to revoke McComb’s postrelease supervision. The KDOC correctly points out that if a party withholds an issue from determination by an agency, the issue is not properly preserved for judicial review. Shields v. J.E. Dunn Constr. Co., 24 Kan. App. 2d 382, 387, 946 P.2d 94 (1997). The KDOC contends that, had McComb requested a third hearing, the Board had the option to continue McComb’s conditional release pursuant to K.S.A. 2003 Supp. 75-5217(b). The KDOC argues that the Board’s action could not be considered “arbitrary and capricious,” when the Board never actually made any findings or orders relating to McComb’s third expulsion from the SATP.
McComb counters by arguing that the parties stipulated to the likely result of the Board hearing. McComb further argues that he was not required to seek an administrative remedy when the remedy is known to be inadequate. Specifically, McComb asserts that there “is no reason to believe that a third set of hearings [before the KDOC and the Board] would have yielded a different result.”
An allegation that a party is required to or has failed to exhaust administrative remedies presents a question of law, and appellate court review is unlimited. NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, Syl. ¶ 3, 996 P.2d 821 (2002).
The district court found that the parties had “stipulated” that McComb’s release would have been revoked had he requested a third hearing before the Board. No such written stipulation was ever filed in this case. However, the parties conducted a lengthy “stipulations hearing” where McComb offered to stipulate to that result. The KDOC never disagreed with the proposed stipulation and said nothing to prevent the court from believing that it agreed with McComb’s analysis. Upon reviewing the entire transcript of the “stipulations hearing,” we conclude that the district court reasonably believed that the parties were stipulating to the eventual outcome of the hearings.
More importantly, a party is not required to seek an administrative remedy when the remedy is known to be inadequate. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 24 P.3d 128 (2001). In Pierpoint, an inmate made two requests for the assistance of counsel at a disciplinary hearing, which were both denied. The inmate subsequently filed a 60-1501 petition without requesting an agency hearing, and the KDOC responded by claiming that the inmate had failed to exhaust his administrative remedies. The court found that, under these circumstances, there was no reason to believe that another request for the presence of counsel would have yielded a different result. The court held the inmate was not required to exhaust his administrative remedies and noted that “[e]xhaustion of administrative remedies is not required when administrative remedies are inadequate or would serve no purpose.” 271 Kan. 620, Syl. ¶ 2; see State ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544, 549, 693 P.2d 1163 (1985).
McComb’s situation is similar to tire facts of Pierpoint. McComb had already exhausted his administrative remedies for the same violation on two prior occasions within the previous 12 months. Although the Board technically had the power to continue McComb’s conditional release, from a practical standpoint, there is absolutely no evidence that the Board would have departed from its previous position. Under the specific facts of this case, the administrative remedies presented to McComb were inadequate, and the district court did not err in retaining jurisdiction after McComb waived his third round of administrative hearings.
McComb’s sentence
Before turning to the merits of McComb’s constitutional claims, we must understand the provisions of his sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Every criminal sentence under the KSGA consists of two components: a determinative prison sentence and a period of postrelease supervision. See K.S.A. 2003 Supp. 21-4704; K.S.A. 2003 Supp. 21-4705. Postrelease supervision means “the release of a prisoner to the community after having served a period of imprisonment . . . subject to conditions imposed by the Kansas parole board and to the secretary of corrections’ supervision.” K.S.A. 21-4703(p). Although similar to “parole,” which applies to prisoners sentenced prior to the enactment of the KSGA, postrelease supervision is distinctive because it is actually imposed by the court as a component of the original sentence. Understanding the provisions of McComb’s sentence is essential in weighing the merits of his constitutional claims.
Fifth Amendment claim
Although McComb’s K.S.A. 2003 Supp. 60-1501 petition briefly references an alleged violation of the Fourth Amendment to the United States Constitution and § 15 of Kansas Constitution Bill of Rights, this argument was never advanced in district court or on appeal. McComb’s primary argument in district court and on appeal is that the SATP condition of his postrelease supervision violates his privilege against self-incrimination pursuant to the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
Initially, the KDOC contends that this issue is not properly before the court. The KDOC asserts that the district court ruled adversely to McComb on his Fifth Amendment claim and McComb failed to cross-appeal that ruling. This assertion is incorrect. The district court ruled that “under most circumstances” a treatment program requiring an admission of guilt does not constitute a Fifth Amendment violation. However, the district court ultimately made no specific finding relating to whether McComb’s Fifth Amendment right was violated. Instead, the district court ruled in McComb’s favor on other grounds. Thus, McComb is not precluded from asserting his Fifth Amendment claim on appeal.
McComb argues that the SATP condition of his postrelease supervision violates his constitutional privilege against self-incrimination. The Fifth Amendment and § 10 of the Kansas Constitution Bill of Rights provide that no person shall be compelled in any criminal case to be a witness against himself or herself. It has long been held that this privilege not only permits a person to refuse to testify against himself or herself at a criminal trial in which he or she is a defendant, but it also “privileges him not to answer official questions put to him in any other proceedings, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973).
There are no cases which address the precise issue before this court. The KDOC relies primarily on McKune v. Lile, 536 U.S. 24, 153 L. Ed. 2d 47, 122 S. Ct. 2017 (2002). Lile brought an action under 42 U.S.C. § 1983 (1994) against Kansas prison officials, alleging that the prison SATP and corresponding regulations and policies violated his Fifth Amendment right against self-incrimination. Lile was convicted of rape, and the prison SATP required him to admit guilt for his crime. The program also required Lile to complete a sexual history form, which detailed all prior sexual activities, regardless of whether such activities constituted uncharged criminal offenses. Lile refused to participate in the program. As a result, his prison status was reduced from Level III to Level I, causing a reduction in Lile’s visitation rights, access to a personal television, and other prison privileges.
The United States Supreme Court held that the adverse consequences faced by Lile for refusing to participate in the prison SATP were not so severe as to amount to compelled self-incrimination. 536 U.S. at 35-48. The Court stated:
“The Kansas SATP represents a sensible approach to reducing the serious danger that repeat sex offenders pose to many innocent persons, most often children. The State’s interest in rehabilitation is undeniable. There is, furthermore, no indication that the SATP is merely an elaborate ruse to skirt the protections of the privilege against compelled self-incrimination. Rather, the program allows prison administrators to provide to those who need treatment the incentive to seek it.” 536 U.S. at 48.
The importance of a prison SATP for convicted sex offenders was specifically addressed by the Court in Lile. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. [Citation omitted.] States thus have a vital interest in rehabilitating convicted sex offenders.” 536 U.S. at 33.
As for the importance of a convicted sex offender admitting guilt, the Lile Court stated that “[acceptance of responsibility is the beginning of rehabilitation.” 536 U.S. at 47. The Court further noted that “[t]he fact that these consequences are imposed on prisoners, rather than ordinary citizens, moreover, is important in weighing respondent’s constitutional claim.” 536 U.S. at 36.
McComb correctly points out that Lile is not controlling authority. Lile applies to a prison SATP for convicted sex offenders who are still incarcerated. Failure to successfully complete the SATP in Lile only resulted in the loss of prison privileges. Conversely, McComb faced the loss of his liberty for failure to participate in the SATP while on postrelease supervision.
McComb cites State v. Imlay, 249 Mont. 82, 90-91, 813 P.2d 979 (1991), where the Montana Supreme Court held that a suspended sentence could not be revoked for a failure to complete a sexual therapy program, where the basis for the failure to complete the program was a refusal to admit guilt. Other state courts have held that a probationer has a valid Fifth Amendment privilege not to be compelled to admit guilt for the crime of conviction. See James v. State, 75 P.3d 1065 (Alaska App. 2003); In re Butts, 582 S.E.2d 279, 286-88 (N.C. App. 2003); State ex rel. Tate v. Schwarz, 654 N.W.2d 438 (Wis. 2002).
Although not cited by either party, we find the Kansas Supreme Court decision in Bankes v. Simmons, 265 Kan. 341, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998), to be relevant. The facts of Bankes are similar to the facts of Lile. Bankes, who had been convicted of indecent liberties with a child, refused to participate in a prison SATP which required admission of guilt for his crime. His refusal to participate resulted in a loss of prison privileges and good time credits for parole eligibility. Bankes filed a K.S.A. 60-1501 petition attacking the constitutionality of the regulations establish ing the prison SATP. Bankes’ petition was summarily dismissed by the district court.
The Kansas Supreme Court reversed, holding that the KDOC’s refusal to award good time credits for parole eligibility violated Bankes’ ex post facto rights, since the regulations were adopted after Bankes’ conviction and imprisonment. 265 Kan. at 353. However, the court also addressed Bankes’ claim that the SATP violated his Fifth Amendment privilege against self-incrimination. In ruling there was no Fifth Amendment violation, the court noted language from Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 79 L. Ed. 2d 409, 104 S. Ct. 1136, reh. denied 466 U.S. 945 (1984), and concluded that the KDOC, in administering its SATP, “can insist that the petitioner admit responsibility, so long as his or her admission is not used against the petitioner in later criminal proceedings.” (Emphasis added.) 265 Kan. at 352-53.
According to this language in Bankes, any information that an inmate is compelled to disclose as a condition of participating in a prison SATP cannot be used against the inmate in subsequent criminal proceedings. Arguably, this language is dicta because Bankes was not decided on Fifth Amendment grounds. Nevertheless, if this language is indeed the law of Kansas, it forecloses the possibility of the SATP condition being a Fifth Amendment violation.
In the absence of controlling authority, we conclude that the SATP condition requiring McComb to accept responsibility for his crime does not violate his Fifth Amendment privilege against self-incrimination. A convicted sex offender who claims innocence does not have greater constitutional rights than one who does not claim innocence. Furthermore, the cases which hold that a probationer cannot be required to admit guilt rely, in part, on the fact that such individuals still face the possibility of incarceration for their crimes. Probationers often have pending appeals or postconviction remedies which could affect the outcome of their cases. Here, McComb has served his entire sentence except for the postrelease supervision term and only faces further incarceration if he fails to admit his crime. It is hard to understand how any statement made now by McComb about his underlying crime could be used to further incriminate him. If the language of Bankes applies to McComb, any admission of responsibility by McComb in the SATP cannot be used against him in a subsequent criminal proceeding.
We note that drug offenders are faced with a similar predicament as McComb. The KDOC requires all persons convicted of drug offenses to successfully complete a substance abuse treatment program as a condition of postrelease supervision. Such programs require the offender to admit to a drug problem as the first step in rehabilitation. Failure to participate in such substance abuse treatment programs also can result in the revocation of postrelease supervision.
The admission of guilt as a necessary step toward rehabilitation has long been recognized in criminal jurisprudence. As noted by the Court in Lile, “the downward adjustment for acceptance of criminal responsibility” is an integral part of federal criminal law and is specifically provided for in the United States Sentencing Commission Guidelines Manual § 3E 1.1 (Nov. 2002). Lile, 536 U.S. at 47.
McComb’s argument that he is trapped in a revolving door of incarceration simply because he proclaims his innocence is persuasive and has merit. On the other hand, adopting McComb’s argument would necessarily result in a convicted sex offender deciding whether treatment was an appropriate condition of release. An offender could always avoid treatment by claiming innocence of the crime. Resolving this predicament against the offender, the court in Bankes concluded:
“This is not a terribly satisfactory outcome. Bankes stands convicted of the offense, but maintains his innocence. He would consequently be forced to admit guilt which he does not acknowledge in order to participate in SATP .... Whether Bankes and society will benefit from Bankes’ treatment under those circumstances is not for the court to decide in this case. However, this situation does not appear to rise to the level of a Fifth Amendment violation.” 265 Kan. at 353.
Finally, we note that the only issue before this court is whether McComb can be required to accept responsibility for his crime of conviction as a condition of postrelease supervision. The KDOC presented evidence that had McComb remained in the SATP, he may have also been required to discuss his entire sexual histoiy, regardless of whether such activities constituted uncharged criminal offeñses. Whether this requirement would violate McComb’s Fifth Amendment right is a question we are not deciding. McComb’s postrelease supervision was revoked because he failed to accept responsibility for his crime of conviction. This was the only SATP condition addressed in district court, and our ruling is limited to the facts presented.
Other constitutional claims
McComb’s K.S.A. 2003 Supp. 60-1501 petition raised no additional constitutional claims. However, at one point during tire hearing in district court, McComb’s counsel argued that the SATP amounted to “cruel and unusual punishment.” Thus, we will address whether the SATP condition of McComb’s postrelease supervision violates tire Eighth Amendment to the United States Constitution.
The Eighth Amendment prohibits “cruel and unusual punishment.” Section 9 of the Kansas Constitution Bill of Rights, which forbids “cruel or unusual punishment,” has been construed in the same manner as the Eighth Amendment. State v. Scott, 265 Kan. 1, 5, 961 P.2d 667 (1998); see Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 (1996). Punishments are cruel and unusual either by the method of punishment or the length of sentence. Scott, 265 Kan. at 8-9.
The constitutional prohibitions against cruel and unusual punishment have been found to prohibit punishment that either inflicts wanton pain or is grossly disproportionate to the severity of the crimes. Turner v. Maschner, 11 Kan. App. 2d 134, 134, 715 P.2d 425, rev. denied 239 Kan. 695 (1986) (citing Rhodes v. Chapman, 452 U.S. 337, 348, 69 L. Ed. 2d 59, 101 S. Ct. 2392 [1981]). Kansas courts have defined cruel and unusual punishment to mean treatment which is “inhumane, barbarous, or shocking to the conscience. [Citation omitted.]” Turner, 11 Kan. App. 2d at 134.
On appeal, McComb asserts that his “method of punishment” is cruel and unusual. McComb does not cite any case law to support his argument; instead he simply states that because he “has already served his sentence for the crime of conviction, his failure to admit guilt is being punished as a new offense. This punishment for maintaining innocence shocks the conscience.” As previously discussed, however, McComb’s postrelease supervision term constitutes a portion of his original sentence. Thus, McComb’s failure to admit guilt is not being punished as a new offense.
Furthermore, the United States Supreme Court has already found that the “Kansas SATP represents a sensible approach to reducing the serious danger that repeat sex offenders pose to many innocent persons, most often children.” Lile, 536 U.S. at 48. It has also been noted by the United States Supreme Court that “sex offenders are a serious threat in this nation.” Lile, 536 U.S at 32. A State has a strong interest in the rehabilitation of sex offenders. 536 U.S. at 33. Therefore, a requirement that a convicted sex offender successfully complete a recommended SATP in order to facilitate rehabilitation does not appear to be inhumane, barbarous, or shocking to the conscience.
In Carroll v. Simmons, 89 Fed. Appx. 658, 660, 2004 WL 206329 (10th Cir. 2004), an inmate brought an action under 42 U.S.C. §1983 (2000) against Kansas prison officials alleging that his refusal to participate in the prison SATP resulted in a “loss of good-time credits, denial of parole hearings, and a lengthening of his sentence for refusing to make a false confession.” Carroll claimed this punishment constituted an Eighth Amendment violation. The Tenth Circuit Court of Appeals held: “We again conclude that the loss of certain privileges and good time credits due to a refusal to participate in a treatment program designed to rehabilitate sex offenders does not rise to the level of cruel and unusual punishment.” Carroll, 89 Fed. Appx. at 661-62 (citing Gwinn v. Awmiller, 354 F.3d 1211, 1227-28 [10th Cir. 2004]).
The inmate in Carroll risked an extended term of incarceration if he refused to participate in the program. Likewise, McComb faced the possibility of serving the remainder of his postrelease sentence in prison for refusing to participate in the program. The factual differences between McComb’s situation and the inmate in Carroll are not so striking as to warrant a different outcome. McComb’s Eighth Amendment argument is without merit.
Finally, McComb argues on appeal that the SATP condition violates his due process and equal protection rights under the Fourteenth Amendment to the United States Constitution. McComb acknowledges that these arguments were not raised in district court. Issues not raised before the district court cannot be raised for the first time on appeal. Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
Conclusion
McComb is still serving his original sentence for aggravated indecent liberties with a child. Until McComb completes his post-release supervision term, he is subject to the KDOC’s supervision. Therefore, McComb is not an “ordinary citizen” and any constitutional analysis must take that into consideration, especially when weighing the importance of rehabilitation against McComb’s liberty interest. Lile, 536 U.S. at 36.
The SATP condition of McComb’s postrelease supervision is reasonably related to his rehabilitation and the protection of the community. The requirement that McComb accept responsibility for his crime is constitutional. The enforcement of such a condition through the revocation of McComb’s release is likewise constitutional. Since the Board’s actions were constitutional, we do not believe they can be deemed arbitrary and capricious and an abuse of discretion. The Board’s discretion in revoking a conditional release is broad, and a court has no authority to substitute its discretion for that of the Board. Swisher, 12 Kan. App. 2d at 185. Accordingly, we conclude that the district court erred in granting McComb’s K.S.A. 2003 Supp. 60-1501 petition.
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The opinion of the court was delivered by
Harman, C.:
Appellant Rollyn E. Wall was convicted of the offenses of leaving the scene of an injury accident (K. S. A. 1968 Supp. 8-518) and driving a vehicle left of center of the roadway (K. S. A. 1968 Supp. 8-540 [&]). Sentences were imposed and he now appeals.
Appellant’s first assignment of error is that counsel for the prosecution failed to make an opening statement at the commencement of trial. The contention has no merit. Trial was to the court. K. S. A. 62-1438, which states an order of trial and upon which appellant relies, is, by its very terms, applicable to trials conducted before a jury. The making of an opening statement in a jury trial is for the assistance of the jury in advising it in advance as to the evidence and issues which will be presented, so that it may more intelligently follow that presentation. The same considerations do not obtain in trial to the court. A trial court has general control and supervision over the proceedings. It may determine in its discretion whether the prosecution should make an opening statement. Subject to that discretion, counsel for the prosecution is not required to make an opening statement in a nonjury case.
At the close of the prosecution s evidence appellant moved for his discharge for the reason the state failed to prove he was driving the automobile at the time in question. The trial court denied this motion and appellant renews the complaint upon appeal.
The prosecution’s evidence revealed the following: On July 8, 1969, at about 10:40 p. m., a Mrs. Bunk was driving her automobile on East Avenue A, an east-west road intersecting a railroad crossing at a crest about one-half mile east of McPherson, Kansas. Mrs. Bunk had her two children with her. She was in her lane of traffic when another vehicle collided with her, damaging the left front of her automobile. The Bunk vehicle came to rest directly on the railroad tracks. The other vehicle came to rest about one hundred feet away in a ditch on the north side of the road. Following the impact Mrs. Bunk and her children got out of their car but did not see anyone and did not see the driver of the other vehicle. Mrs. Bunk experienced pain in her left elbow and, later, pain in her neck. Her boy sustained a bruise on his forehead and later complained of pain in his shoulder; the girl sustained a cut on the cheek. Five or ten minutes elapsed before another automobile passed the site of the collision. Mrs. Bunk requested the occupants to summon the police. Several police officers arrived at the scene and conducted an investigation, including measurements as to the point of impact of the collision. The automobile in the ditch was identified as one owned by appellant. A billfold containing his personal identification papers was found on the floorboard of the vehicle. Several officers searched the vicinity for the driver but did not find anyone. The search continued from about 11:00 p. m. to 4:00 a. m. the next morning. One officer searched back toward the city of McPherson but did not see appellant. At about 4:00 a. m. a deputy sheriff talked to appellant at appellant’s residence. Appellant stated he had been knocked unconscious by the accident and had made his way to a Mr. Hill’s residence who subsequently brought him home.
Material facts in a criminal case may be established by circumstantial evidence, so long as that evidence satisfies the applicable requirements of consistency with guilt and inconsistency with innocence and possesses the requisite degree of probative force.
The vehicle belonged to appellant. His presence in it at the time of the collision was definitely shown. He asserted he had been rendered unconscious by the collision. A search of the automobile and the area revealed the presence of no other person who might have been the driver. We think these circumstances sufficiently established appellant as the operator of the vehicle at the time in question.
As to the charge of leaving the scene of an injury accident appellant urges insufficiency of the evidence in that it failed to reveal he knew at the time of leaving the scene of the collision he had been in a collision. We have already summarized the prosecution’s evidence. Appellant testified that upon the night in question he was driving back to his own home after taking a baby-sitter to her home; his next recollection was awakening in a field on the south side of the road upon which the collision occurred; he did not know he had been in a collision; his recollection was vague as he walked to a Mr. Hill’s house which is visible from the accident scene; he could not recall talking to Mr. Hill nor much about walking to his home; Mr. Hill took appellant to appellant’s home; upon his arrival his wife told him he had been in an accident and he immediately telephoned the McPherson police and was interviewed by an officer; he went to a doctor the following day.
Mr. Hill testified his home is about one-half mile from the scene of the collision; appellant, whom he had known before, appeared at his home in the early morning hours in a dazed condition; “he looked like a person bewildered and couldn’t comprehend”; appellant did not know the location of his car or that he had been in an accident; his trousers were badly torn with blood on them and he had a wide streak of dried blood on his forehead.
Appellant’s family physician testified he had treated appellant the day following the collision; appellant had multiple bruises and abrasions upon his face and both legs; he had a deep evulsion upon one knee, a bruise in the mid-stemum area and a swelling and abrasion upon the mid-forehead; appellant stated he had been unconscious the night before and could not remember what had happened. The doctor further testified any bump to the forehead possibly could cause loss of consciousness; appellant could not have been unconscious for a very long period but it is difficult to determine how long a person might remain unconscious from such a blow as appellant had apparently received as there is no absolute standard for a person’s reaction; an unconscious person would not be able to walk but one could possibly walk in a dazed condition following a period of unconsciousness.
Appellant argues that before he can be convicted of the offense commonly known as hit-and-run driving a showing must be made that he had knowingly left the scene of an injury accident.
K. S. A. 1968 Supp. 8-518 provided in part:
(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled tire requirements of K. S. A. 8-520, as amended. Every such stop shall be made without obstructing traffic more than is necessary.
“(b) Any person failing to stop or to comply with said requirements under such circumstances shall, upon conviction, be punished by imprisonment for not more than one (1) year or by a fine of not more than one thousand dollars ($1,000), or by both such fine and imprisonment. . . .”
K. S. A. 1968 Supp. 8-520 provided:
“The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request and if available exhibit his operator’s or chauffeur’s license or permit to drive to any person injured in such accident or the driver or occupant of or person attending any vehicle or other property damaged in such accident and shall give such information and upon request exhibit such license or permit to any police officer at the scene of the accident who is investigating the accident and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”
The fact an accused subsequently surrenders himself to the police would not, of course, absolve him from criminal liability for initially leaving the scene of a collision.
Section 518 contains no express requirement that knowledge on the part of a motor vehicle operator that he has been in a collision is necessary to sustain a conviction for its violation; however, we believe such showing is essential. Section 518 specifically relates to section 520, the clear intent of the two being to require such a driver to stop and then furnish specific information and appropriate aid for the benefit of any occupant of the other vehicle who may have been injured in the collision. Section 520 prescribes an affirmative course of action to be taken by the driver. Implicit therein must be the element of recognition or awareness on the part of that driver of the fact of collision. We cannot believe the legislature intended a penalty to be imposed for failing to follow that course of action if a driver was in fact unaware of the occurrence of collision. We do not imply an accused must have positive knowledge of the nature or extent of injury resulting from the collision nor do we infer that a showing of knowledge of injury accident may not be made by circumstantial evidence. Direct evidence of absolute, positive, subjective knowledge may not always be obtainable. We think it sufficient if the circumstances are such as to induce in a reasonable person a belief that collision has occurred; otherwise a callous person might nullify the humanitarian purpose of the statute by the simple act of immediate flight from an accident scene without ascertaining exactly what had occurred (3 Wharton’s Criminal Law and Procedure [Anderson, 1957], § 1004; anno. 23 A. L. R. 3d 497). We hold then that knowledge of collision is an essential element of the offense of hit-and-run driving.
The bare statement of an accused that he had no recollection of a collision, standing alone, might well be suspect. But here that assertion does have satisfactory explanation in the evidence. Appellant’s version of his excuse for leaving the scene of the collision was corroborated by the testimony of an acquaintance and by medical evidence as to his condition following the collision. We recognize the rule that upon appeal the evidence must be viewed in the light most favorable to the finding made in the trial court and that all proper inferences must be indulged to support that finding. But from all the circumstances it can hardly be inferred appellant had knowledge he had been in a collision. Such an inference, to be drawn at all, must be based on something more than mere surmise, conjecture or possibility (State v. Doyle, 201 Kan. 469, 441 P. 2d 846).
We conclude the evidence failed to establish appellant had the requisite knowledge the vehicle driven by him was in a collision. His conviction for the offense of leaving the scene of an injury accident must be reversed. The finding of guilty of driving left of center of the roadway was sufficiently supported by the evidence, no trial error appears, and that conviction must be affirmed.
Judgment accordingly.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
In this appeal plaintiff-appellant, Thelma B. Winn, attacks a divorce decree in the following particulars: (1) The trial court abused its discretion in refusing to tax as costs witness fees of two experts, hired by plaintiff in the preparation of her case; (2) the division of real and personal property was not just and reasonable; and (3) the alimony awarded plaintiff was not fair, just and reasonable.
The parties were married in 1948. A few months later defendantappellee, George L. Winn, was called into the military service and spent ten months in Korea. Thelma worked while George was in the service, and on his return the parties had sufficient funds to purchase a new automobile for George’s use in his employment as a traveling salesman for an office supply company. A few months after George’s return from the service, the parties purchased the Kansas Fire Equipment Company for approximately $3,000. Most of the purchase price was raised by selling the new automobile.
In 1954, the parties purchased a competitor’s business consisting of two used vehicles, and service account lists for approximately $8,000.
Their business continued to prosper and in 1957, the parties purchased the business of another competitor — located in Hutchinson —which was merged with the Wichita enterprise.
Earnings of the business continued to increase, and the parties accumulated both real and personal property. Ry 1967 the total income from all sources had grown to more than $38,000.
While the parties prospered in their business endeavors, their marital relationships deteriorated. Thelma filed this action on March 8,1968.
A son and a daughter were born during the marriage. David was fifteen years of age and Martha Lee eleven when the divorce action was filed.
The action was tried in two parts. Thelma was granted a divorce, custody of Martha Lee, and child support in the amount of $150 per month. George was awarded custody of David.
The case then proceeded to trial on the questions of division of property and alimony. There was some conflict in the testimony concerning the value of the residence and other real and personal property; the only serious conflict, however, related to the value of the fire equipment business.
Thelma was awarded alimony in the amount of $100,500.00, payable $500 per month for 36 months and $750 per month for 110 months, terminable on death or remarriage. The alimony award was made a judicial lien on real estate and life insurance awarded to George.
The trial court then proceeded to divide the assets of the parties, taking into account their considerable liabilities. The residence was awarded to Thelma and the business to George. Under the valuations arrived at by the trial court, the total net value of the assets amounted to $102,614.00. Assets valued at $48,000 were awarded to Thelma, and net assets of $54,614, including the business valued at $34,274, were awarded to George. George was ordered to pay all outstanding obligations, which totaled more than $40,000.00.
Thelma filed a motion to alter or amend the judgment, which was overruled and this appeal followed.
In her first point on appeal, Thelma contends the trial court abused its discretion in refusing to hear testimony of her two expert witnesses concerning their fees and subsequently in denying allowance of such fees as costs in the case. The two witnesses were a real estate broker, who testified as to the value of the real property, and an accountant, who gave his valuation of the fire equipment business.
At the conclusion of his testimony on direct examination, the real estate broker was asked the amount of his fee for making his appraisals. Defendant’s counsel objected on the ground the fee was not a pertinent item. The objection was sustained. A like ruling was made when an objection was made to a similar question put to the accountant.
Plaintiff contends that even though the taxing of costs under K. S. A. 1970 Supp. 60-1610 (/) rests solely in the judicial discretion of the trial court, discretion was abused here because evidence of costs was completely excluded.
Defendant points out that when plaintiff filed her petition she also filed, pursuant to K. S. A. 60-1607 (d), an application for a restraining order, temporary child custody, partial attorney fees, court costs, etc. The trial court, ex parte, granted plaintiff’s application, directing defendant to pay $200 advance attorney fees, $25 court costs, and $710 monthly for plaintiff’s care and support for herself and children pending trial of the divorce action. A week later, in an adversary proceeding initiated by defendant, the $710 per month was reduced to $510. In the course of the pretrial proceedings plaintiff made no claim that experts were necessary in the preparation of her case, nor did she request funds for such purpose.
Apparently, the trial court took the view that if plaintiff deemed experts necessary in the preparation of her case she should have included a request therefor in her application under 60-1607 (d), when a hearing to determine the matter could have been had prior to trial.
In addition to the allowance to plaintiff on her application, under 60-1607 (d), costs and attorneys’ fees were awarded under K. S. A. 1970 Supp. 60-1610 (/). The journal entry of judgment discloses that plaintiff’s attorneys were allowed a fee of $7,500, which defendant was directed to pay in addition to the costs of the action. Presumably, the costs included statutory witness fees authorized by K. S. A. 60-2003, and fixed at five dollars per day by K. S. A. 1970 Supp. 28-125.
K. S. A. 1970 Supp. 60-1610 (/) reads:
“Costs and attorneys’ fees may be awarded to either party as justice and equity may require.”
Under 60-1607 (d) and 60-1610 (/), supra, the district court is vested with wide discretion in the allowance of costs and attorneys’ fees. Such discretion will not be disturbed unless an abuse of discretion clearly appears from the record. (Brooker v. Brooker, 199 Kan. 783, 433 P. 2d 363; and Craig v. Craig, 197 Kan. 345, 416 P. 2d 297.)
Under the circumstances related, we find no showing here which would justify disturbing the trial court’s ruling in this regard.
The basic controversy in this appeal is plaintiff’s dissatisfaction with the trial court’s division of property and allowance of alimony. Plaintiff states her position in these terms:
“. . . the division of property was not done according to statute, K. S. A. 1967 Supp., 60-1610 (b), and that the trial court abused its judicial discretion in denominating the $100,500.00 payment to be made to Appellant as alimony subject to death, remarriage or further order of the Court and the equity and justice require then the trial court’s judgment be modified to make the payment of said $100,500.00 part of the division of property and not alimony and that Appellant be allowed interest on the payment thereof.”
Plaintiff further submits that in addition to the property division she should be awarded $300 per month as alimony subject to her death, remarriage or further order of the court.
The actual dispute centers around the value of the fire equipment company, which plaintiff claims to be $200,000.00 in contrast to the court’s finding of $34,247.84. The testimony of plaintiff’s accountant and that of defendant is the only evidence as to the value of the business.
Plaintiff’s witness Donald F. McKenzie, a certified public accountant, gave his opinion that the fire equipment business was worth $200,000.00; however, he admitted that he was not familiar with this type of business. McKenzie also acknowledged that defendant was the primary driving force of the business, and that “owner-managers” of the sole proprietorship are important factors in determining the value thereof.
Defendant testified that the physical assets of the business were worth $30,247.84; that the fire equipment companies sold for book value, plus one dollar per customer; that he had about 4,000 customers; and thus he fixed the value at $34,247.84. Defendant testi fied that he had bought out two competing fire equipment businesses on that same basis — value of physical assets, plus card files of customers.
The trial court fixed the value of the business at $36,090. In ruling on plaintiff’s motion to alter and amend, the trial court had this to say concerning the value of the business and the award of alimony:
“The Court: All right, gentlemen. I might just make this observation. The Court did spend a great deal of time in arriving at this decision, and we did have everything before us at that time. I would like to also observe that in the opinion of the Court, the value of the Kansas Fire Equipment Company is a very nebulous thing. The inventory and equipment are not great, and the company really consists almost entirely of Mr. Winn’s sales ability, Mr. Winn’s personality and his contacts with his customers, and it’s a potential value that is there, but if the business were to be sold, there would be very little there to sell other than existing good will, and how much of this can be carried over, I have no idea.
“The Court in making this award attempted to take into consideration not only the values that I had before me, but also the expenses and liabilities which Mr. Winn was ordered to assume, and I don’t recall the figures from the evidence that I had before me, but I assume this figure you have here of some $36,090.00 is correct. When you consider the value of a business, and in an actual value, as I said, it’s very difficult to put a figure on it, but I don’t think that it would [be] anywhere close to approximate $200,000.00 other than what its potential is in producing income in the future due to Mr. Winn’s sales ability.
“I might comment further that, as I explained to Mr. Coombs at the time that I imposed this provision of termination of the alimony upon death or remarriage, and I would like to have Mrs. Winn understand the reason for this, and I explained to Mr. Coombs at the time that we did have a very flagrant case here in Sedgwick County several years ago where the court awarded a lump sum alimony judgment to the wife. Shortly after the divorce this woman was remarried, and within a month she passed away. The husband inherited this judgment from her and ended up with the first husband paying the second husband an alimony judgment amounting to several thousands of dollars — I think it was in the neighborhood of $50,000.00 — over a period of years, and it was to correct this type of situation that the legislature empowered the court to make such an order, and I will go so far as to direct that the journal entry be revived to designate those portions which should be alimony if it is not spelled out with particularity.”
Without reciting in detail defendant’s description of the business, we think his testimony constituted ample evidence to support the trial court’s findings. Defendant’s testimony was backed by his long experience and expertise in the fire equipment business. In contrast, Mr. McKenzie, in testifying for plaintiff, admitted he was not familiar with the type of business concerned. McKenzie’s evaluation appeared to rest largely upon the income producing capacity •of the business, which in turn has depended more upon defendant’s talent as a salesman than upon the asset value of the business.
Plaintiff makes a point concerning some of defendant’s testimony •on cross-examination relating to the value of the business. Defendant was asked what he would sell the business for, he answered “I would be glad to trade it in this divorce for a hundred thousand dollars or less.” Plaintiff would make this testimony an admission by defendant that his business was worth $100,000. The trial court refused to give the statement the construction sought by plaintiff. Defendant obviously did not intend the statement to be construed as expressing his idea of the fair market value of the business, he merely stated that he would trade it “for a hundred thousand dollars or less in this divorce action.” As we have previously noted, on direct examination defendant drew upon his own experience in purchasing other fire equipment businesses and his special knowledge of the nature of the business, in arriving at the formula for value consisting of physical assets, plus the number of customer accounts.
As indicated in its findings, the trial court believed that, to a great extent, the success of the business was due to defendant’s sales ability and his contacts with his customers, neither of which would be much of a factor in the value of the business if it were sold. Undoubtedly, the ability of defendant to meet his considerable payments of alimony and child support depend upon his continuing to produce income which in turn rests largely upon his business knowledge and gifted salesmanship. If the business were ordered sold and the proceeds divided, defendant’s earning capacity and his ability to make the alimony and child support payments would be seriously jeopardized.
K. S. A. 1970 Supp. 60-1610(h) provides that the property of the parties shall be divided in a just and reasonable manner. There is no rule of law, statutory or otherwise, for determining what proportion of the property is to be allotted to individual parties; nor is it the prerogative of this court to divide property between husband and wife. This court’s sole function is to review the record for the purpose of determining whether the trial court’s findings have a factual basis in the evidence and whether its discretion, with respect to such division, has been abused. (Sinclair v. Sinclair, 204 Kan. 240, 461 P. 2d 750; Folk v. Folk, 203 Kan. 576, 455 P. 2d 487; and Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226.)
Nothing would be gained by extending this opinion on this phase of the case. It is sufficient to say we have carefully examined the record, considered the amount of alimony awarded, the fact that a judicial lien was imposed on defendant’s property as security for the payment thereof, other facts and circumstances; and conclude the plaintiff has failed to affirmatively show the trial court’s division of the property was unjust or unreasonable so as to amount to a clear abuse of discretion.
Plaintiff claims the trial court’s order terminating alimony on her death or remarriage amounts to an abuse of discretion. The trial court carefully explained the reasoning , behind its order in this regard. The reasoning of the trial court, and the order based thereon, is clearly in line with what this court had to say about the continuance of alimony after remarriage of the recipient thereof in Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465.
We find no affirmative showing of abuse of discretion. The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
Defendant, Lorenzo Broadus, appeals from a conviction of the offense of murder in the first degree (K. S. A. 21-401) and of the offense of maiming and wounding (K. S. A. 21-435). He was sentenced to terms of life imprisonment and for not to exceed five years, respectively — the sentences to run concurrently.
A somewhat sketchy record is presented, but from it — and the briefs of the parties — the undisputed facts are substantially as follows:
Defendant and his wife Delia were involved in a pending divorce action. By court order he was restrained from visiting the home where she and their young child lived. About 5:30 in the morning of March 24, 1968, defendant went to the home — his purpose being —according to him — to have breakfast with Delia and the child. He had a revolver. Finding the back door locked he lunged at it— ripping the door framing from the wall. He saw a coat belonging to one Warren Grundy — a known “boyfriend” of Delia. Defendant pulled his revolver from his pocket and proceeded to the bedroom. Delia and Grundy were standing by the bed — she in her nightgown and he in his underwear shorts. The child was in the bed. Defendant shot Grundy several times. He then shot Delia at least once — telling her that “he ought to kill her too but that he was not going to because of the kid”. He left the house to put the gun in the trunk of his car — but instead threw it in the yard.
Defendant then went back in the house and called the Wichita police. He gave his name and address of the house, and said that he “had caught a man in bed with his wife” and that he had shot them “and that one of them was dead”. He requested that an ambulance be sent. Delia then came on the line and said her husband “had shot someone”.
Police officers arrived on the scene shortly. Grundy was on the floor — either dead or near death. Delia was wounded in the face and was bleeding. Defendant readily admitted the shootings and stated that “if he had it to do over again he would do it over again”. He was taken from the house, placed under arrest — and searched. The “Miranda warning” was read to him. On the way to the police station he stated that he was not much concerned over the relationship between Grundy and Delia — as such — his objection being that their conduct was “in the presence of my kid”.
Defendant was charged with the murder of Grundy and the maiming and wounding of Delia.
In addition to what has been stated, evidence at the trial established that prior to the fatal morning in question defendant had bragged about having a gun in the trunk of his car and had threatened to kill both Grundy and Delia.
Defendant was convicted as charged — and now appeals. He raises three points of alleged error.
The first is that it was error to admit testimony of one of the police officers as to on-the-scene statements made by defendant prior to being given the “Miranda warning”. On this point the court held a hearing out of the presence of the jury and concluded that voluntary statements by defendant — not in response to interrogation— were admissible. We agree. The statements in question — to the effect that “he would do it over again” — were not in response to custodial interrogation — but were voluntary spontaneous statements made by defendant upon the arrival of the officers — and were clearly admissible (State v. Porter, 201 Kan. 778, 443 P. 2d 360, cert. den. 393 U. S. 1108, 21 L. Ed. 2d 805, 89 S. Ct. 919 and State v. Law, 203 Kan. 89, 452 P. 2d 862).
It next is contended the court erred in failing to instruct specifically on justifiable homicide and in not submitting separate forms of verdict on justifiable and excusable homicide.
After instructing on the law of murder in the first and second degrees (K. S. A. 21-401 and 402) the court, in instruction No. 9, instructed the jury that if it failed to find defendant guilty of murder in either the first or second degree then it should determine whether he was guilty of manslaughter in the third degree. Included in this instruction was the statutory definition (K. S. A. 21-413) of that offense — which contains the exception relating to justifiable or excusable homicide. Then, in instruction No. 10, by way of further explanation of the preceding instruction — the court instructed on justifiable and excusable homicide as defined in K. S. A. 21-404 and 405. As to the murder count four forms of verdict were submitted— murder in the first degree — murder in the second degree — manslaughter in the third degree — and “not guilty”.
The instructions clearly were correct — both as to substance and the manner and form in which they were given. The same is true of the forms of verdict. Furthermore, defendant’s then counsel stated that he had no objection to the instructions given — although he did request an additional one. The record does not disclose the contents of the one requested — but we are told by the state (and it is not disputed) that it did not pertain to either justifiable or excusable homicide.
Defendant’s contention with respect to the instructions and forms of verdict is wholly without merit.
Finally, it is contended that as to the murder charge the verdict of the jury was contrary to the law and evidence in that premeditation was not proved.
On this point the jury was instructed—
“The words premeditated’ and ‘with malice aforethought’ mean an evil intention resolved in the mind beforehand, or contrived and designed previously. However, to constitute deliberation and premeditation and malice aforethought, no particular time need intervene between formation of the intention and the doing of the act. It is sufficient if they actually existed, with a full appreciation of the result likely to follow from the act, at the time the act was committed, however short the time of their existence may have been. The word ‘maliciously’ means with evil design or intention or desire to injure another.”
The instruction was a correct statement of the law and was properly given in this case. From the evidence of previous threats to kill — the time and manner of breaking into the house with a gun— the testimony of the only eye witness (Delia) — and defendant’s own voluntary statements both at the scene and later — the jury was fully justified in finding the requisite premeditation to constitute murder in the first degree. This contention likewise is without merit.
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The opinion of the court was delivered by
Hatcher, C.:
The defendant, Alfred C. Miles, was found guilty of possession of a pistol after having previously been convicted of a felony as that offense is described by K. S. A. 21-2611.
The defendant has appealed.
All of the issues raised by appellant are bottomed on the contention that firearms taken from an automobile which he was occupying were the subject of illegal search and seizure and therefore improperly admitted as evidence.
Preliminary to the trial a motion to suppress was filed, which read in part:
“Comes now the defendant appearing in person and by Frank D. Covell, his court appointed attorney, and moves the court for an order suppressing the evidence obtained as a result of an illegal search and seizure, which was conducted without a warrant and without probable cause.”
Accompanying the motion to suppress was appellant’s affidavit in support thereof, which stated in part:
“At the time of my arrest I was occupying an automobile owned by one-Percy Peoples which automobile was along side the highway facing in a southerly direction. The owner and driver of the car had gone for assistance since the car had overheated, requiring us to stop at this particular location. While waiting for Peoples to return the arresting officer approached and made inquiry as to my purpose there. After explaining the situation I was asked to sit in the patrol car and my driver’s license and other papers were examined. Following which a search of the automobile was made, which included unlocking the trunk of the car where the guns alleged to have been in my possession were located.
“There was no warrant obtained for this search and there was no probable cause justifying the search and it was only after the discovery of the guns that I was placed under arrest.’’ (Emphasis supplied.)
At the hearing on the motion to suppress the facts were developed.
The chief of police of the city of Lenexa, Johnson County, Kansas testified in substance that while on duty on the 1st day of June, 1969, he had occasion to be dispatched to the scene of a possible car fire and upon arriving at that location fund the appellant seated in the passenger side of an old model Buick automobile bearing Oklahoma license tags. At that time he asked if the car had been on fire and appellant replied in the negative. He then asked appellant to get into his car to talk as it was extremely hot outside and that the air conditioner was on his patrol car. As he walked past the Buick and back to his automobile he had observed some type of pressurized can with a five or six foot length of rubber hose attached to it and a large metal bar approximately four feet in length on the back floorboard of the car. These items could be used as burglary tools. He asked the appellant where the owner of the automobile was and appellant replied that he had gone down the highway to get some water for the over-heated car.
At this time the appellant was not under arrest. After viewing the items on the floorboard of the automobile he asked the appellant if he could look through the automobile. The appellant replied “go right ahead.” The officer then proceeded to search the front portion of the vehicle with the assistance of an off-duty officer who had stopped at the scene. The search revealed a large ring of keys under the right side of the front seat. Nothing was found of a suspicious nature in the passenger portion of the automobile other than the bar and pressurized can. The officer proceeded to the rear of the Buick and asked permission to search the trunk. The appellant replied, “Go ahead.”
Upon opening the trunk of the automobile the officer first observed two shot guns and a rifle lying on the floor of the trunk. Next he saw a Coors beer box which closer examination revealed contained numerous hand guns of some type wrapped in newspaper. Under the left rear fender well he found a money bag from an Oklahoma bank which contained a fully loaded snub nosed .38 caliber pistol.
The testimony of the officer given at the preliminary hearing was also introduced. At that hearing the appellant did his own cross-examining. We quote in part:
“Q: At the time I was sitting in your car; at the time you called me back when you first arrived and called me back to your car?
“A: At the time I was sitting in (pause) I told you to get in the car because it was hot and I had the airconditioning on.
“Q: Did you ask me for my identification?
"A: Yes, sir.
“Q: Did you open it? Do you know?
“A: Yes.
“Q: You say I was not under arrest?
“A: We did not even speak of arrest when you were sitting in the car.
“Q: I was being detained, right?
“A: (Pause) I asked you to get in the car and discuss with me.
“Q: Then you did detain me, right?
“A: (Pause) Figuratively speaking, no.
“Q: I voluntarily got in tire car and gave you my identification?
“A: (Pause)
“Q: Now you went and searched the car?
“A: Me and another officer.
“Q: You and another officer?
“A: Yes sir.
“Q: Had I at that time violated any laws?
“A: No sir.
“Q: In other words you searched the car strictly on suspicion?
“A: With your permission.
“Q: You asked me, is that correct?
“A: With your permission I searched the car.
“Q: But you did search it strictly on suspicion; no apparent reason; no law had been violated, just simply you thought.
“A: My answer is that I searched the car with your permission.
“Q: Yow searched it with my permission, but why did you want my permission?
"A: From my knowledge as a police officer, after observing these two articles, as I have told the court, I felt it gave me reasonable grounds to be suspicious of the car.” (Emphasis supplied.)
After the hearing on the motion to suppress the trial court ruled:
“. . . At this time after having heard the evidence proffered by the respondent and after having heard arguments, will find that the motion to suppress should be and is hereby denied and overruled. The court will find that the evidence in question was lawfully secured by the officer based on a consent to search in this case. And there is uncontroverted evidence that the defendant gave permission to the officer to conduct the search. . . .”
Appellant’s contention that the search was unlawful and that there was error in not suppressing the evidence has no merit. We must agree with the conclusion of the trial court that “there is uncontroverted evidence that the defendant gave permission to the officer to conduct the search.”
The case of Wren v. United States, 352 F. 2d 617, United States Court of Appeals, Tenth Circuit, cert. den., 384 U. S. 944, 16 L. Ed. 2d 542, 86 S. Ct. 1469, cited by the appellant, set out the rules for determining whether consent to search has been given. It was there stated:
“It is fundamental in our judicial process, as guaranteed by the Fourth Amendment, that we are secure in our persons, houses, papers and effects against unreasonable searches and seizures. This constitutional right, like all others, may be waived by voluntary consent. In order to constitute a voluntary consent it must clearly appear that the search was voluntarily permitted or expressly invited and agreed to by the person whose right is involved. In addition, such person must be cognizant of his rights in the premises, the consent must not be contaminated by any duress or coercion and the government has the burden of proof. The question of whether consent has been given is a question of fact for the trial court to determine in accordance with the foregoing accepted principles of law and subject to appellate review within the ‘clearly erroneous’ rule.” (p. 618.)
There is no evidence to support a claim of any duress or coercion.
The appellant’s next contention reads:
“The appellant contends that whether or not there was reasonable cause for the officers to want to search and whether under the circumstances a consent to search was validly and properly given under the circumstances should have been matters submitted to the jury for their consideration and finding.”
The question of cause to search a car was not an issue in the case. The officer saw equipment in the back seat which made him suspicious. He asked and received permission to make the search. A search may always be made if free and voluntary consent is given. (Pekar v. United States, 315 F. 2d 319.)
It might also be suggested that the uncontroverted evidence of consent left no question of fact to be determined. It left purely a question of law.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
After our decision was handed down reversing the judgment of the district court, the appellees filed a motion for rehearing. This court granted the appellees’ motion on April 12, 1970, but limited the rehearing to the following issue:
“Must a testamentary option granted two or more optionees be exercised jointly by all optionees?”
In all other respects the motion for rehearing was denied. Our action in granting a limited rehearing was influenced by the fact that, as pointed out in the appellees’ motion, the precise question had not been researched or briefed by either party to the appeal, and we felt that opportunity to do so should be accorded.
The case was reargued on October 2, 1970, prior to which date the appellant filed a brief on rehearing. The appellees, however, filed no additional brief to assist the court, nor were they represented by counsel at oral argument.
After hearing from the appellant’s counsel upon oral argument and studying her brief on rehearing, and after referring again to appellees’ original brief and motion for rehearing, we adhere to our original decision, the gist of which, so far as the limited rehearing is concerned, was that an option granted to two or more optionees must be exercised by them jointly, in the absence of circumstances clearly indicating a contrary intention on the part of the optionor and, further, that no clear contrary intent was. indicated in this case.
Inasmuch as syllabi 6 and 7 do not completely reflect the court’s opinion on the question presented on rehearing, these syllabi are hereby modified to read as follows:
6. An option granted two or more optionees must be exercised by all optionees jointly, absent circumstances clearly indicating a contrary intent on the optionor’s part.
7. The record is examined in an action contesting the validity of a testamentary provision granting the testator’s two daughters the right to purchase certain real estate at a specified sum, and for reasons appearing in the opinion it is held: (1) The option does not violate the rule against perpetuities or create an unreasonable restraint upon alienation, and (2) under the circumstances shown in this case, the surviving optionee may not, alone, exercise the option, there being no clear showing that the testator so intended.
A typographical error has been noted in the citation from Restatement, Property, Volume IV, p. 2315, which we wish to correct at this time, inasmuch as the error changes the entire sense of the cited text. In the first paragraph the word “valid” appears. The word should be “invalid” and the quotation should read as follows:
“ ‘Subject to exceptions [non of which appear applicable here] . . . the limitation of an option in favor of a person other than the conveyor is invalid because of the rule against perpetuities when, under the language and circumstances of the limitation, such option
‘“(a) may continue for a period longer than the maximum period described in § 374; and
“‘(b) would create an interest in land, or in some unique thing other than land, but for the rule against perpetuities.’ ”
Except as modified herein our original opinion is affirmed. | [
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The opinion o£ the court was delivered by
Harman, C.:
This is a negligence action for personal injuries sustained by two persons in a fall from a barn which they were reroofing at the defendant owner’s request.
Separate claims filed by the plaintiffs were consolidated and heard in trial to the court. At the conclusion of plaintiffs’ evidence the trial court sustained that which has been denominated throughout as a motion for summary judgment. Plaintiffs have appealed.
Appellants’ evidence revealed the following: Appellee Mounkes, who was seventy-eight years of age, owned two bams whose roofs needed repair. Upon a neighbor’s recommendation he contacted appellant Weeks, who had been engaged in full-time carpenter work for thirty-five to forty years, first as an employee for a contractor, then for himself. Weeks, accompanied by appellant Aspelin, thereafter came to appellee’s farm to look over and talk about the job. Aspelin had been engaged in carpenter work for about five years and on various occasions had previously worked for Weeks. The testimony was that appellee “wanted to hire us to fix them roofs for him ... he wanted a new tin [roof] put on those buildings”. As a result of the conversation appellants were to put on the roofs as soon as they could get to it. Weeks figured the amount of material to be used. Appellee was to pay for all material and pay appellants on an hourly basis. Appellants were to furnish all tools necessary, including ladders.
On August 2, 1967, at about 7:30 a. m. appellants came to the barn in question for the purpose of repairing its roof. They were accompanied by Aspelin’s sixteen year old son Charles who had been hired by Weeks to help them. Appellant Aspelin commenced unloading the material while Weeks went on the roof by means of a ladder. The roof was covered with shingles. Along its length where the two sides of the roof joined there was a metal strip called a ridge row. Weeks made an inspection and pulled some of the nails out of the ridge row. The ridge row was rusty and the nails were not solidly in the boards. The ridge row had been installed in ten foot lengths commencing at the south end of the barn; however, at the north end the last section was only four feet long. After Weeks had inspected the roof he reported to appellee what he had learned about the ridge row, saying,
“We are going to have to have a new ridge row there, because . . . that one is not in good shape. . . .”
Weeks also told appellee he didn’t think the roof was too safe but he couldn’t tell; it looked unsafe. He said the ridge row wasn’t long enough, it wasn’t nailed securely and would not be safe and he thought they should have another one. Appellee responded he would go get .a new ridge row right away and the workmen should go ahead. Appellee indicated he would be right back. Appellant Aspelin was not present when this conversation occurred but Weeks told him about it after tire two climbed upon the roof. After appellee left appellants proceeded with the roofing work, putting on the tin. The Aspelin youth remained on the ground, handing up material. Appellants completed the east side of the barn. Their ladders had hooks on one end designed to hold them on the roof. When the ladders were laid down on the roof the hooks extended over the opposite side of the ridge row and against the other side of the roof. The opposite side of the ridge row remained nailed down while the side upon which tin was being applied was loosened so that the tin could be beaten under it; that side of the ridge row was then nailed down.
Appellants next started on the west side of the roof, commencing at the south end where the ridge row was in ten foot lengths and working northward. They had nearly finished the job when the four foot ridge row pulled loose, permitting the ladders to slide down the roof. Both appellants fell to the ground and were injured. At the time they fell appellee had not yet returned but he did return shortly thereafter, while the two were still lying on the ground.
In sustaining the motion for judgment the trial court made the following findings:
“Under the evidence in this case, it is the opinion of the court that the plaintiffs were not employees of defendant. Assuming, for the purpose of illustration, that master-servant relationship existed, it is the opinion of the court that the injuries sustained by the plaintiffs resulted from risks incident to their employment, and the employer is not liable therefore, Convoy versus Crofoot, 194 Kansas 46. The court further finds that the evidence failed to show the defendant was negligent in any manner.”
The parties have treated the motion made by appellee at the conclusion of appellants’ evidence as one for summary judgment. Appellants urge application of familiar rules respecting disposition of such motions. Appellee’s grounds for the motion were that upon the facts and the law appellants as plaintiffs had shown no right to relief. Actually, then, despite the misnomer, the motion was one for involuntary dismissal under K. S. A. 1969 Supp. 60-241 (b). The scope of the trial court’s authority in such a situation was stated in Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847, as follows:
“Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiff’s case pursuant to the provisions of K. S. A. 60-241 (b), based on the ground that upon the facts and the law the plaintiff has shown no right to relief, the trial judge has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case. . . .” (Syl. ¶ 7.)
The trial judge made the requisite findings in support of its ruling pursuant to 60-241 (b) and 60-252 (a). In reviewing that action we are limited by the further rule in 60-252 (a) which directs that the trial judge’s findings of fact shall not be set aside unless clearly erroneous (Mackey-Woodard, Inc. v. Citizens State Bank, supra).
If any of the trial court’s findings are sustainable then its judgment must be upheld as each is dispositive as the lawsuit has been framed. Appellants alleged and sought to prove they were employees of the appellee and their only ground of negligence is failure to furnish a safe place to work. In effect they concede that to avail themselves of this ground of negligence, if at all, they must prove they were employees of appellee rather than independent contractors. This position is apparently taken in recognition of the rule an owner of premises is under no duty to protect an independent contractor from risks arising from or intimately connected with defects in the premises which the contractor has undertaken to repair (see 41 Am. Jur. 2d, Independent Contractors, § 28; also anno. 31 A. L. R. 2d 1375,1381-1383).
We turn first to the question whether appellants were employees or independent contractors. In Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, this definition appears:
“An independent contractor generally is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.” (Syl. f 2.)
This court has often been called upon to review a determination as to whether an individual was an employee or an independent contractor. The problem most frequently arises in workmen’s compensation cases and is well summarized in Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108, in the following statement:
“It is often difficult to determine in a given case whether a person is an employee or an independent contractor since there are elements pertaining to both relations which may occur without being determinative of the relationship. In other words, there is no exact formula which may be used in determining if one is an employee or an independent contractor. The determination of the relation in each instance depends upon the individual circumstances of the particular case.
“The primary test used by the courts in determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of control by the employer but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.” (p. 780.)
In Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 389 P. 2d 766, one issue was whether a certain individual was an employee or an independent contractor. A landowner hired the person to clean silt out of a drainage ditch at a specified rate of pay per hour. No directions were given as to how the work was to be done and it was done by the workman with his own equipment according to his own methods. In determining as a matter of law that the relationship was that of independent contractor, this court stated:
“At most, Phillips’ evidence disclosed that Wirth entered into a contract with Steele whereby Steele was to clean the silt out of the north drainage ditch at a predetermined rate per hour. Nothing else was said; no specifications were given, and the manner in which the work was to be done was left entirely up to Steele. While Phillips’ evidence was that Wirth inspected the work and conversed briefly with Steele’s employee Southworth, it can by no means be inferred that he reserved the right to direct and control the means or method of performing the work. Wirth’s and the appellant’s interest was in the result of the undertaking, that is, having the ditch cleaned of silt rather than in the particular method or means by which it was accomplished, and as previously indicated, no right of control was retained by Wirth on his behalf or the appellant’s behalf.
“The appellee suggests that since Steele was to be paid at an hourly rate for the work, this was strong evidence of an employer-employee relationship existing between Wirth, the appellant, and Steele. The point is not well taken. In Smith v. Brown, 152 Kan. 758, 107 P. 2d 718, evidence of payment at an hourly rate for services was introduced in support of an employer-employee relationship, but this court determined that the general law was applicable; that it was the question of the right of control which determined the relationship and affirmed the trial court’s order sustaining a demurrer to the plaintiff’s evidence.” (pp. 485-486.)
In the case at bar we think the evidence clearly demonstrates appellants were independent contractors as defined by the authority cited. They entered into an oral contract with appellee to reroof the latter’s barns with certain material at an agreed rate of pay. Nothing more was said. No directions were given as to how the work was to be performed. The manner of its performance was left entirely to Weeks, whom appellee had contacted and selected because he had been recommended as a carpenter who knew his business. There was no evidence of any control or direction being retained in appellee. His interest was in the result — having his barn reroofed.
We likewise must agree with the trial court’s conclusion that if the master-servant relationship were held to exist, then appellants were injured as a result of risks they assumed incident to their employment. The evidence was that Weeks knew of the defective condition which caused the fall and it was undisputed he conveyed this information to Aspelin prior to their injury. Both were experienced carpenters whose task, in fact, was to remedy the known defect, to correct the precise condition which caused the injury. The evidence further revealed there were alternate methods of fastening a ladder upon the roof while repairing it, which would have been safe. Appellants chose the method and the tools used. The defects principally complained of in the ridge row were in the north end, where the accident actually occurred. Weeks’ estimate was “I just figured it was a small place here that was bad,” and unfortunately this turned out to be a correct assessment.
In view of the foregoing we need not further consider the issue of appellee’s negligence.
Two matters remain for consideration. First, appellants sought to introduce a portion of a deposition of appellee taken by appellants. Appellee made a general objection which the trial court sustained for the reason, “Depositions can only be used for the purpose of impeachment.”
Appellants failed to make a proffer before the trial court of that which they expected to show by the deposition; however, in view of the reason given in sustaining the objection any proffer may well have been futile. From the record before us it appears the deposition was offered to show an admission against interest upon the element of right to control, albeit in the form of a conclusion. An opponent’s sworn statement, though called a deposition, is no less an admission than any other statement of his. A deposition of a party containing an admission against interest is admissible, and always has been, regardless of whether the party is present at the trial, or absent from the jurisdiction (Gard, Kansas Code of Civil Procedure, anno., § 60-226, p. 139). In Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822, we pointed out that K. S. A. 60-226 (d) (2) specifically authorizes the use by an adverse party, for any purpose, of a deposition of a party, without regard to- the limitations applicable generally to the deposition of witnesses offered by either party.
The trial court erred in not admitting the deposition into evidence; however, in view of later events, we believe this ruling was not prejudicial. After the trial court had excluded the deposition appellants called appellee to the witness stand to testify as a part of their case in chief. Appellants made no attempt, as they could have, to elicit testimony from appellee similar to that contained in the deposition. No reason is advanced or is apparent for this omission. We believe appellants’ failure to elicit testimony considered relevant rendered harmless the error in the prior ruling. Moreover, we have examined the excluded testimony now proffered in the record upon anneal and are convinced its reception and full consideration could not in any event have changed the conclusion that appellants were employees and not independent contractors.
Finally, appellants complain of the trial court’s action, over their objection, in consolidating the two cases for trial. Appellant Aspelin particularly argues he was prejudiced in the joinder because different issues were present as to him inasmuch as he had no knowledge of die defective condition of the roof. We have already indicated the undisputed evidence to the contrary on this issue. K. S. A. 1969 Supp. 60-242 (a) provides that when actions involving common questions of law or fact are pending before the court, the judge may order the actions consolidated and may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Consolidation of two or more pending actions lies in the sound discretion of the trial court. We find no abuse of that discretion here. The consolidating order was not made until after jury trial had been waived by appellants, and after it had been determined at pretrial conference that, except for medical evidence, the evidence upon the liability issue would be the same for both appellants. No prejudice to the rights of either appellant resulted.
Judgment affirmed.
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The opinion of the court was delivered by
Fromme, J.:
On October 31, 1967, Howard R. Robertson was sentenced as an habitual criminal for a period of not less than thirty years. He was tried and convicted of robbery in the first degree. The judgment and sentence were affirmed on a direct appeal in State v. Robertson, 203 Kan. 647, 455 P. 2d 570. Robertson thereafter filed a motion for relief from judgment and sentence under K. S. A. 60-1507. The motion was summarily denied and petitioner Robertson appeals.
The sole basis for Robertsons motion is:
“Petitioner was illegally and unconstitutionally sentenced under K. S. A. 21-107a for the reason he had no counsel in Case No. 6422, January 11, 1960, Reno County, Kansas; contrary to the Sixth and Fourteenth Amendment to the United States Constitution.”
Case No. 6422 was a prior conviction used to enhance the penalty in the robbery conviction. When petitioner’s motion came on for hearing the records of the court were examined by the judge and they disclosed the petitioner had had three prior felony convictions in Reno County. These were numbered Cr. 6422, Cr. 6522 and Cr. 6525. Petitioner attacks the judgment and sentence in case number Cr. 6422, but he does not quarrel with the two other prior convictions, Cr. 6522 and Cr. 6525.
The habitual criminal statute provides that a person convicted a third time of felony shall be confined for a period of not less than fifteen years. (K. S. A. 21-107a) No maximum period is mentioned in that statute.
K. S. A. 21-109 provides whenever an offender is declared by law punishable upon conviction by confinement for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed. K. S. A. 21-107a and 21-109 are to be construed together (State v. Wood, 190 Kan. 778, 793, 378 P. 2d 536) and the sentence of thirty years was proper on a showing of only two prior felony convictions. Assuming petitioner’s conviction in case number Cr. 6422 was invalid, his conviction in cases numbered Cr. 6522 and Cr. 6525 would adequately support the sentence he received as an habitual criminal.
However, an examination of the record covering both the allocution and the journal entry in case number Cr. 6422 indicates the district court fully advised petitioner of his constitutional rights, including the right to counsel. Petitioner intelligently and understandingly waived his right to counsel in writing and the court, as set forth in the original journal entry of judgment, found the appointment of counsel over petitioner’s objection would not be to his advantage. (See K. S. A. 62-1304 and Lloyd v. State, 197 Kan. 389, Syl. ¶ 3, 416 P. 2d 766.) Such a waiver of the right to counsel is binding upon an accused and is recognized by both state and federal courts. (Lloyd v. State, supra; Carnley v. Cochran, 369 U. S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884.)
The case of Chance v. State, 198 Kan. 16, 422 P. 2d 868, relied on by petitioner, does not support his claim. It recognizes that a waiver of the right to counsel may be valid and binding upon an accused.
Under G. S. 1949, 62-1304 in effect when petitioner entered his plea in case Cr. 6422 the journal entry must show the court finds the appointment of counsel over the objection of the accused would not be to the advantage of the accused. Such a finding was specifically made and set forth in the journal entry.
It should be noted that 62-1304 was repealed July 1, 1969 by L. 1969, ch. 291 § 16 and the provisions of K. S. A. 1969 Supp. 62-3101 et seq., relating to aid to indigent defendants replaced the former law. However, G. S. 1949, 62-1304 controlled when petitioner was sentenced on January 15, 1960 in case number Cr. 6422.
Petitioner’s final contention that he was entitled to a plenary hearing and counsel on his 1507 motion is without merit. His motion failed to present a substantial question of law or a triable issue of fact and in such case the court was not required to appoint counsel to assist petitioner or to hold a plenary hearing. (Baier v. State, 197 Kan. 602, 419 P. 2d 865; King v. State, 200 Kan. 461, 436 P. 2d 855.)
The judgment denying relief on petitioner’s motion is affirmed.
Fontbon, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is who, as between the executor and a devisee, in the absence of any direction under a will, is entitled to the crops growing on specifically devised lands as of the date of the decedent’s death.
Hannah Rouback died testate on November 15, 1966. Her will was admitted to probate and the Russell State Bank was appointed executor on the 27th day of December, 1966.
Under her will four quarter sections of land in the state of Kansas were devised to Jerome N. Pederson, the appellant herein.
On the date of the testatrix’ death, part of the land devised to Pederson had a growing crop of wheat which was sowed in September, 1966. The lands on the date of decedent’s death were subject to an agricultural lease under which the decedent was to receive:
“. . . as rental for said crop land, one-third (%) of all grain crops raised on said premises in marketable condition at market, free of expenses to first party [Hannah Rouback] or in the bin or granary on the farm, as first party may choose.”
It is admitted by the appellant the decedent’s interest in the growing wheat was separately inventoried and appraised as a personal asset of her estate, and was not included as a part of the real estate devised to him.
The growing wheat was harvested in the summer of 1967 and later sold for $900.72.
Procedurally, in the probate court the executor petitioned for partial distribution of the decedent’s estate, which appraised at $1,175,778.70. The order of partial distribution set over to the appellant the four quarter sections of land, oil runs of $8,285.73, agricultural income in the amount of $1,093.27, less taxes and expenses paid of $1,821.36, thereby distributing to the appellant net income withheld by the executor in the sum of $7,557.64. The agricultural income, however, did not include the sum of $900.72 received by the executor for the sale of the one-third share of the wheat harvested from the land devised to Pederson.
Pederson thereupon petitioned the probate court for the payment of farm rental in the sum of $900.72 alleging the facts. He alleged the executor refused to pay the rental proceeds from the sale of the one-third interest in the 1967 wheat. The contract and lease covering the land devised to the appellant was attached to his petition.
Following the executor’s answer to the petition for allowance of claims, the parties by agreement transferred the matter to the district court, where, after hearing, the claim was denied and appeal duly perfected.
K. S. A. 59-1206 provides:
“Annual crops, whether severed or not from the land of the decedent at the time of his death, shall be deemed personal assets in the custody of the executor or administrator and shall be inventoried and administered as such.” (Emphasis added.)
The statute is clear, not only are growing crops deemed “personal assets,” but they “shall be inventoried and administered as such.”
These personal assets would obviously be administered in accordance with the provisions of the decedent’s will.
The appellant admits the devise of the four quarter sections of land to him did not, by the terms of the will, include the growing crop of wheat. The will devised the residue of the estate in the following language:
“All of the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever found or situate, that I may own at my death, I give, devise and bequeath to Russell State Bank, of Russell, Kansas, in a perpetual trust, . . .”
In accordance with the statute (59-1206, supra) the growing wheat crop was inventoried as a personal asset. To administer it as a personal asset, the growing wheat crop could only pass as a part of the residue of the estate in accordance with the above quoted portion of the decedent’s will.
The rule of law expressed by 59-1206, supra, has always been in force in this state. In Kesler v. Heberling, 113 Kan. 571, 213 Pac. 639, it was held:
“As between executor and devisee, on the death of the testator, crops growing on the land devised go to the executor as assets in his hands under section 4524 of the General Statutes of 1915.” (Syl.)
The statute then applicable was not as explicit as 59-1206, supra. It only provided that annual crops “shall be assets in the hands of the executor or administrator, and shall be included in the inventory.” The present statute explicitly provides that such crops shall be personal assets and “inventoried and administered as such.”
Kesler was followed in Blakely v. Blakely, 115 Kan. 644, 224 Pac. 65, where the court held the growing crops, grown by a tenant on land belonging to a testator, and harvested and sold after his death, belonged to the estate, and not to the devisee of a life estate to whom was devised “ ‘the use of all my property, both real and personal, with the rents, issues, profits and proceeds thereof.’” (p. 644.)
The appellant concedes under the applicable rule in Kansas, prior to the adoption in 1965 of the Uniform Principal and Income Act, the growing crops here in question passed to the executor. But the appellant argues the Uniform Principal and Income Act, K. S. A. 1970 Supp. 58-901, et seq., changed the rule.
The appellant contends the question, as to who is entitled to growing crops, is governed by the Uniform Act.
The Uniform Act is general. Its broad purpose is to provide rules for the guidance of fiduciaries to determine what is principal and what is income, to determine who is entitled to the principal and who is entitled to the income, and to determine the allocation of expenses to each.
By the provisions of K. S. A. 1970 Supp. 58-914, the act is made applicable to decedents’ estates.
By K. S. A. 1970 Supp. 58-904 (a), an income beneficiary is entitled to income from the date the assets become subject to the trust, which in the case of a testate estate, is the date of death.
Under K. S. A. 1970 Supp. 58-904 (b) (2), receipts in the form of periodic payments, including rent, are to be apportioned to principal as of the date of the decedent’s death, and to income from the date of death.
K. S. A. 1970 Supp. 58-904 (c) provides:
"In all other cases, any receipt from an income producing asset is income even though the receipt was earned or accrued in whole or in part before the date when the asset became subject to the trust.” (Emphasis added.)
K. S. A. 1970 Supp. 58-904a (b) (1) provides that income from specifically devised property, after the death of the testator, goes to the specific devisee.
Under K. S. A. 1970 Supp. 58-903 (a), income includes:
“. . . return in money or property derived from tibe use of principal, including return received as
“(1) rent of real or personal property. . . .” (Emphasis added.)
By K. S. A. 1970 Supp. 58-907 (b), generally accepted accounting principles are to be used in determining income from farming operations.
K. S. A. 1970 Supp. 58-901 defines an “Income beneficiary” as the person to whom income is presently payable or for whom it is accumulated for distribution as income; and it defines a “Remainder-man” as the person entitled to principal, including income which has been accumulated and added to principal.
The appellant contends he is in the position of an “Income beneficiary.” He argues the point at issue is the ownership of a fund in the hands of the executor. He contends the fund was not in being at the decedent’s death but comes from an asset of the decedent, the land devised to the appellant.
The appellant relies primarily upon 58-904 (c), supra. He argues the landlord has an interest in the crop before it matures when rent is payable in shares. (Citing Bank v. Equity Exchange, 113 Kan. 696, 216 Pac. 278; and Will v. Hughes, 172 Kan. 45, 238 P. 2d 478.) Under this subparagraph any receipt from an income producing asset is income even though the receipt was earned or accrued in whole or in part before the asset became subject to the trust. He contends the receipt (the right to rent payment) either accrued in whole upon planting the wheat, subject to later harvest, or it had accrued in part at the death of the testatrix, as the crop matured subject to its later harvest and salev
In either event, the appellant argues:
“. . . the right of the decedent to a share of the crop vested upon planting the wheat. The right to rent was then absolute. The unknown or indeterminate was the amount to be paid, whether in bushels or dollars, not whether rent was payable. The fact the amount later to be paid was not then fixed or liquidated is entirely unrelated to the accrual of the right to be paid. (See Bank v. Equity Exchange, 113 Kan. 696, 698, 216 Pac. 278.) Whether the income was earned wholly or only partially prior to the death of the testator would not defeat the right of the devisee of the land to income. It was partially, if not wholly, earned or accrued on testator’s death.”
In the alternative, the appellant argues, if 58-904 (c), supra, is not held applicable, the provisions of 58-904 (b) (2), supra, apply on the ground that “the rent paid pursuant to contract was a periodic payment of rent.”
Under this provision the receipts are treated as accruing from day to day, the part accruing before death is principal; that accruing after death is income.
The appellant argues:
“The lease in this action was not strictly a farm lease covering crop land. The agreement covered a three year term. It pertained to personal services, use of residential property, contained cash rent provisions and a crop land agreement for which grain rent applied. The rents of whatever kind were payable at yearly intervals and were paid at those intervals. It is improper to separate out of the lease that portion pertaining to the four quarters of land and the grain rent payable therefor and take the position that because this rent was payable in kind die Probate Code requires it to be treated as personal property, going to the executor. In fact, the executor would be required to look to the entire lease for enforcement of whatever rights the estate had vis a vis the tenant. Had there been default in payment of cash rents diere could be litde argument that diese were rents due and payable periodically.
“The tenant made payments as required under the lease, both in cash and one crop payment for grain harvested in 1966. Payments for 1967 were not due until after testator’s death in November, 1966. This death does not change the periodic nature of the payments required. No place in the statute is there a suggestion as to what interval is required to qualify as a ‘periodic payment’ of rent. No reason suggests itself that yearly payment of rent is not periodic payment in the same manner that monthly or weekly payment would be considered periodic payment of rent. A lease for a term of years with rent to be paid at intervals throughout the term, though the intervals be yearly, meets the literal requirement of the statute. Thus, the rents required under the present lease were periodic payments of rent within the meaning of sub-paragraph (b) of Section 904.”
The matter presented is one of first impression. We have been cited to no cases in point, nor has our research disclosed any. The appellant contends that inferentially In re Estate of Cline, 170 Kan. 496, 227 P. 2d 157, comes close. Factually, the case is inapplicable because it deals with a lease for gravel (a part of the land) which was not removed from the land upon which the decedent gave a lease until after his death. The gravel was not inventoried as a part of the decedent’s estate. Thereafter $534.83 in royalty was paid to the executor for the extraction of gravel after the decedent’s death. The court held the devisee was entitled to the payment of such royalty.
The appellee concedes that the Uniform Act applies to the decedent’s estate, but argues that it applies “only as the Act itself so indicates. Nothing in the Act requires a conversion of assets to income.”
The legislature many years ago recognized the knotty problem encountered in dealing with crops growing on the land of the decedent at the time of his death in the administration of estates. As a result a specific statute was enacted (59-1206, supra, and its predecessors) to clarify the handling of annual crops by an executor or administrator. The Uniform Principal and Income Act is a statute of general application, dealing with the subject of allocation of receipts between principal and income.
Assuming without conceding the appellant’s contentions with respect to the Uniform Act are correct, a conflict would exist between the provisions of 59-1206, supra, in the probate code and the Uniform Act. The rule of construction between seemingly conflicting statutes is clear. In Sherman County Comm'rs v. Alden, 158 Kan. 487, 148 P. 2d 509, it is held:
‘‘The terms of a statute dealing with a specific subject are controlling as against divergent provisions of a statute having more general application.” (Syl. ¶2.)
Furthermore, again assuming without conceding the appellant’s contention with respect to the Uniform Act is correct, it would require this court to hold that the Uniform Act repeals 59-1206, supra, by implication. The rule under these circumstances is stated in Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 358 P. 2d 786, as follows:
“Where it is contended that a later statute has repealed an earlier statute by implication, it is noted that repeal by implication is disfavored, and such a repeal is not to be found when both statutes may operate independently without conflict.” (Syl. f 4.)
In our opinion repeal by implication is not indicated. There is no conflict between 59-1206, supra, and the Uniform Act, if it be recognized that as to annual crops, the Uniform Act merely starts where the specific provision of the probate code leaves off.
Under the probate code these annual crops were “personal assets.” They were not specifically devised or bequeathed.
In the probate code under K. S. A. 1970 Supp. 59-1201, the representative of the decedent’s estate makes an inventory “of all real estate and tangible personal property owned by the decedent ... in the state of Kansas and of all intangible property owned by the decedent . . . wherever located which shall come to his possession or knowledge.” A supplemental inventory is required for subsequently discovered assets (K. S. A. 59-1203); debts discharged by a will are included “in the inventory of the assets of the decedent” (K. S. A. 59-1204); debts owing by the executor are “included among the assets of the decedent in the inventory” (K. S. A. 59-1205); and last but not least, “Annual crops, whether severed or not . . . shall be deemed personal assets in the custody of the executor or administrator and shall be inventoried and administered as such.” (K. S. A. 59-1206.)
Under the probate code all of such items of property comprise the “assets” of the estate.
The Uniform Principal and Income Act then becomes operative upon these assets, so inventoried, as required by the probate code. Thus, under K. S. A. 1970 Supp. 58-903 (a) (3), “income earned during administration of a decedent’s estate” is distributed to specific devisees in accordance with 58-904a (b) (1). But it must be “income” before it becomes so distributable.
Clearly, if the receipt of money or property is an original asset of the decedent’s estate, it cannot become “income from the assets of a decedent’s estate,” as that phrase is used in 58-904a (b). (Emphasis added.)
Insofar as the Uniform Act applies to decedents’ estates, income earned during administration is clearly limited. Under 58-903 (a), supra, “Income is the return in money or property derived from the use of principal.” But such “return” received as income earned during administration is by 58-903 (a) (3), supra, governed by 58-904a (b), supra. The latter section clearly provides that it must be “income from the assets of a decedent’s estate” before it becomes distributable to a specific devisee.
Since “Annual crops, whether severed or not from the land of the decedent at the time of his death” by virtue of the probate code are “personal assets,” they could not become “income from the assets.”
K. S. A. 1970 Supp. 58-903 (b) provides in part:
“. . . Principal includes (1) consideration received by the trustee on the sale or other transfer of principal ... or replacement or change in the form of principal;”
Applying this provision of the Uniform Act, growing crops at the decedent’s death, which are subsequently harvested and sold, represent only a change in the form of the principal. Receipts on the sale of such crops represent only consideration received on their sale or other transfer.
We now turn to the appellant’s argument that as between the decedent and her tenant the growing crops were rent under the terms of a three-year lease. The appellant relies upon 58-903 (a) (1), which provides that “rent” of real property is income. The disposition of growing crops in a decedent’s estate cannot be made dependent upon whether the decedent had leased the land which she owned, or was farming it herself. The provisions of 59-1206, supra, make no such distinction. Yet, under the appellant’s theory growing crops under a lease would pass to a specific devisee, while growing crops planted by the decedent would not.
The appellant’s alternative contention, if he is not entitled to all of the growing crop, that he is entitled to that portion accruing after the decedent’s death under 58-904 (b) (2) because the rent paid pursuant to contract was a periodic payment of rent, is not persuasive. Cooper v. Cyr, 141 Kan. 236, 40 P. 2d 375, cited by the appellant as authority to apportion the crop from its planting to date of death to the estate, and from date of death to its harvest to the specific devisee, is distinguishable. There the decedent who leased the land was a life tenant only, who died before the maturity of the crop.
The rule is recognized in Cooper v. Cyr, supra, that the landlord’s interest in growing crops is inchoate with the sowing of the seed in his ground and attaches to the growing grain. As such, it is an asset. This rule is recognized in K. S. A. 58-2525.
The apportionment rule of 58-904 (b) (2) can have no application to growing crops in a decedent’s estate. In the first place apportionment applies only to “periodic payments, . . . including rent.’’ A landlord’s share of a growing crop is not a “periodic payment.” It is merely a reserved share of the crops. While the growing crop has value to the landlord after the date of seeding, there may never be any payment, particularly where the crop is destroyed either by drouth, hail, wind, flood, fire caused by lightning, or any other unforeseeable event. If in a given year, one, two or more crops are planted, the landlord still gets his share of the crops, whatever the crop may be.
In the second place, the growing crop here was “rent” only as between the tenant and the decedent, including her executor. As between the executor and the appellant, it was a growing crop, oías 59-1206, supra, describes it, an “annual crop” whether severed or not.
The words “periodic payments” in our opinion, were intended to apply to specific periods, such as a week, month oi; year, and not to a landlord’s share of an annual crop whose growing season may vary depending upon the weather and other factors.
In conclusion, we hold the “personal asset” consisting of the growing wheat crop on the date of the decedent’s death, was not converted to “income from the assets of a decedent’s estate” by the provisions of the Uniform Principal and Income Act. Therefore, it remained a “personal asset” under K. S. A. 59-1206, and was properly inventoried and administered as such. The receipts from the sale of the growing wheat crop, after its harvest, represent consideration received from the sale of principal under K. S. A. 1970 Supp. 58-903 (b) (1) and remains a personal asset of the decedent’s estate. Consequently, they passed to the trustee under the residuary clause of the will, where the income produced from the investment of such personal asset then becomes distributable income to the trust beneficiaries in accordance with the will.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff brought this action, to recover for personal injuries and property damage, alleged to have been caused by. the concurrent negligence of two- defendants in the operation of their motor vehicles on a public highway. The sole question involved in this appeal is whether the trial court erred in overruling the demurrer of one of the defendants to the cross-petition of his code-fendant. A brief review of the undisputed facts and the pleadings is required in order to insure a proper understanding of the issue involved.
On the afternoon of September 1, 1955, Charles W. Riley was operating a Chevrolet pickup truck on Broadway or U. S. Highway No. 81 in the 5200 Block on North Broadway in Sedgwick County. Behind Riley, James L. Moore, a deputy sheriff of Sedgwick County was driving in the same direction in an automobile on such highway. The motor vehicles in question collided in the 5200 Block on North Broadway and as a result of that collision Moore’s vehicle ran off the highway, into and through Earl Robinson’s place of business, at which time and place Robinson sustained injuries to his person and property.
Following the accident Robinson instituted an action in the district court of Sedgwick County against the Board of County Commissioners of Sedgwick County, Kansas; Floyd Schroeder, Sheriff of Sedgwick County; James L. Moore and Charles W. Riley to recover damages for injuries alleged to have been sustained by him to his person and property as a result of the collision.
Allegations of the petition filed by Robinson in commencing the action, as well as those of his second amended petition, are of no importance to the issue here involved and need not be detailed. However, for informative purposes it should be stated such pleadings contain allegations charging Riley and Moore with concurrent acts of negligence which, if established by evidence, would be sufficient to subject them to joint and several liability as negligent tort-feasors.
For informative purposes subsequent pleadings, not involved on appellate review because they were filed by the parties prior to the fifing of the cross-petition giving rise to the appeal and have not been challenged, will now be noted in the order in which they were filed without reference to content. They are: (1), (2) and (3) Separate answers of defendants Riley, Moore and Schroeder to the second amended petition; (4) answer and cross-petition of defendant Board of County Commissioners; (5) answer of Riley to cross-petition of the defendant Board; (6) reply of Board to answer of Riley to its cross-petition; and (7) reply of plaintiff Robinson to the answers of the several defendants.
Some two and one-half months after joinder of issues, as above related, defendant Moore filed a cross-petition against his code-fendant Riley wherein, among other things, he alleged that the collision in question was caused solely by divers acts of negligence (stating them) on the part of the defendant Riley, which were the direct and proximate cause of injuries and damages (describing them) sustained by him in the collision, and prayed for judgment against such codefendant for the sum of $50,000.
Thereupon Riley filed a demurrer to the cross-petition which, so far as here pertinent, reads.
“. . . for the reason that the petition of the plaintiff contains a cause of action for the recovery of damages against defendants, Charles W. Riley, James L. Moore, Floyd Schroeder, and the Board of County Commissioners of Sedgwick County, Kansas, and the purported Cross-Petition of' defendant, James L. Moore, contains one cause of action for the recovery of damages against defendant, Charles W. Riley, only, and said causes of action are improperly joined in said action, as each does not affect all parties to this action.”
When this demurrer was overruled he perfected the instant appeal wherein, as previously indicated, the only issue involved is the propriety of that ruling.
In approaching consideration of the issues involved it can be stated at the outset that the subject of the action is the injuries sustained by plaintiff to his person and property as a result of the joint and concurrent negligence of the defendants Moore and Riley and that the purpose of the action is to recover damages therefor.
It can also be stated that, under the provisions of G. S. 1949, 60-710, a defendant has a right to set forth in his answer, by way of cross-petition, as many grounds for relief as he may have so long as that relief concerns the subject of the action. However, it is to be noted the right to relief concerning the subject of the action must, under the statute (G. S. 1949, 60-711), be a right to relief necessarily or properly involved in the action for a complete determination thereof or settlement of the question involved therein. That this right to relief may be asserted, under the conditions and circumstances above indicated, by a defendant against his co-defendant by cross-petition is fully demonstrated by G. S. 1949, 60-719.
In the instant case Moore attempted to exercise the right authorized by G. S. 1949, 60-710, 711 and 719, by filing a cross-petition against his codefendant'Riley, wherein he attempted to inject an independent cause of action into the action in which he sought affirmative relief against such codefendant only, for personal injuries sustained by reason of his codefendant’s acts of negligence, alleged to have caused the collision between their motor vehicles. Under such circumstances there can be no doubt the subject of the cause of action brought into the case by Moore is the personal injuries he sustained as the result of the alleged negligence of Riley and the purpose of his action is to recover from Riley the damages thereby sustained. Thus it appears the right to relief asserted by Moore in his cross-petition did not concern the subject of the action instituted by the plaintiff, it did not affect all the parties to that action, and it was neither necessarily nor properly involved in such action for a complete determination thereof or settlement of the questions therein involved. Indeed, in fact and in law, the only parties concerned or affected under the allegations of Moore’s belated pleading, filed long after the issues had been joined in the case by all parties involved, were Moore himself and the codefendant against whom he sought relief.
What has been heretofore stated may lead to inquiry on the part of our readers, as it has to us, respecting why the appellant (Riley) did not attack by motion to strike the cross-petition on the ground that under the existing facts and circumstances such pleading was not- authorized or permitted by our code of civil procedure, instead of demurring to it on the ground of misjoinder of causes of action. Appellant- gives us no light on that subject in his brief or on oral argument, but our independent research of the authorities has revealed a few cases indicating that such an attack would have been a proper, if not a better, mode of procedure. See, e. g., Puleo v. Goldberg, 129 Conn. 34, 26 A. 2d 359; Montgomery v. Blades, 217 N. C. 654, 9 S. E. 2d 397; Horton v. Perry, 229 N. C. 319, 49 S. E. 2d 734. Be that as it may, since appellant’s demurrer is based solely on the ground of misjoinder, our obligation is to determine the propriety of the trial court’s action in overruling such demurrer. This, it may be added, is an obligation we must fulfill without help from the appellee (Moore) who has not seen fit to defend the trial court’s ruling on appeal in this court by either brief or oral argument.
Stated in his own language the principal question raised by appellant as grounds for reversal of the judgment reads:
"The filing of the cross-petition by appellee (one of the defendants) in which affirmative relief is sought against appellant (another one of the defendants) alone for damages for personal injuries allegedly occasioned by the negligence of appellant alone, constitutes a misjoinder of causes of action, the other defendants and plaintiff not being concerned with the said cause of action or relief sought.”
Two claims advanced by appellant as the law of this state in support of his principal question must be conceded. The first is that under provisions of G. S. 1949, 60-601, a plaintiff cannot unite several causes of action in the same petition, unless the causes oí action sought to be united or joined affect all the parties to the action, except in actions to enforce mortgages or other liens, with which we are not concerned in this appeal. Quite true. The statute so reads and our decisions (See, e. g., Gallaway v. Purcell, 174 Kan. 659, 258 P. 2d 349; Crisler v. C. K. Packing Co., 181 Kan. 118, 309 P. 2d 703) so hold. The second is that a defendant may demur to the petition for misjoinder of causes of action. Express provision for such a demurrer is to be found in G. S. 1949, 60-705.
Notwithstanding what has just been stated it does not follow under the facts and circumstances of this case that, standing alone, the foregoing concessions compel a conclusion the involved demurrer was good. As applied to the first concession such demurrer was not lodged against the plaintiff’s petition but directed by a codefendant at a codefendant’s cross-petition. With respect to the second the cross-petition states a cause of action against One co-defendant only; namely, Riley.
Thus it appears further authority for the sustaining of appellant’s principal contention must be found in the books on two points if it is to be upheld and the trial court’s judgment reversed. They are: (1) Does a cross-petition, such as is here involved, come within the scope of the provisions of G. S. 1949, 60-601, and (2) if so is such a cross-petition demurrable on the ground several causes of action are improperly joined?
An examination of our decisions establishes that the question raised by point (1) must be answered in the affirmative.
This court has long been committed to the rule that causes of action which the code permits to be united, other than to enforce liens, are those which affect all parties to such causes of action, and cross-petitioners are plaintiffs in effect. (Civ. Code, §§88, 97-102; G. S. 1915, §§6979, 6989-6994, now G. S. 1949, 60-601, 60-710 to 60-715.) See Crockery Co. v. Cleaver, 104 Kan. 642, 645, 180 Pac. 273; North American Finance Corp. v. Cannavan, 130 Kan. 468, 470, 286 Pac. 248; Beeler & Campbell Supply Co. v. Warren, 149 Kan. 135, 141, 86 P. 2d 482.
For other statements supporting our conclusion the answer to point (1) must be as above indicated see Crockery Co. v. Cleaver, supra, where it is said:
“To be of any validity, a cross-demand, set-off, or counterclaim must be sufficient in itself to form the basis of a cause of action (Civ. Code, §§ 97-102, Gen. Stat. 1915, §§ 6989-6994), and the test of the mutuality of interest in such set-off or counterclaim must be the same as that required to permit the joinder of causes of action under section 88 of the civil code (Gen. Stat. 1915, § 6979 [now G. S. 1949, 60-601]).” (p. 645.)
See, also, Ruby v. Baker, 106 Kan. 855, 190 Pac. 6, where the following statement appears:
“The spirit of the code favors the settlement in one action of different controversies, where the circumstances interpose no obstacle, but recognizes the principle upon which the requirement of mutuality in cross demands is based, by providing that except in actions to enforce liens the causes of action united must affect all the parties. (Gen. Stat. 1915, § 6979 [now G. S. 1949, 60-601].)” (p. 857.)
Having answered the question raised by point (1) in the affirmative it should now be stated that appellant relies upon our decision in Beeler & Campbell Supply Co. v. Warren, supra, as requiring an affirmative answer to point (2), as heretofore posed, and as uphold ing the principal question raised by him in the action, i. e., that the trial court should have sustained his demurrer to the cross-petition on the ground of misjoinder of causes of action. Since they are set forth at length in 149 Kan. 135 to 142, Inch, we are not here disposed to labor the facts of the Beeler case or the reasons stated in its opinion for holding.that the injection in that case by a cross-petition, on the part of one defendant against the plaintiff of a cause of action which neither concerned nor affected a codefendant, constituted a misjoinder of causes of action requiring the affirmance of the trial court’s judgment in sustaining the plaintiff’s demurrer to such cross-petition. It suffices to say the opinion in such case makes it clear that this court considered both the opinion and the cross-petition there involved in determining whether, under the existing facts and circumstances, there was a misjoinder of causes of action and, after doing so, said and held:
. . But in the instant ease the joinder of an independent action by the Pipe Line Company [defendant] against the Supply Company [plaintiff] alone on a contract which affected the Supply Company only, with the pending action of tire Supply Company, on an entirely different contract, which affected all the parties, constituted a misjoinder of causes of action . . .” (p. 141.)
It may be conceded the Beeler case relates to contracts and that the particular pleading involved therein was a cross-petition against the plaintiff by one of the defendants respecting a contract which did not concern or affect a codefendant, where — as here — the action has to do with alleged torts and the particular pleading in question is a cross-petition filed by one defendant against a co-defendant with respect to a separate and distinct tort, which neither concerned nor affected the plaintiff or divers other codefendants and was not necessarily or properly involved in the action commenced by the plaintiff in order to have a complete determination thereof or settlement of the questions therein involved. Even so, we know of no decision, and see no reason for, holding that differences existing in the Beeler case with respect to rights to relief asserted, or the parties asserting them, afford any sound ground for holding that the legal principles announced and applied and the conclusions there reached are not applicable in the case at bar.
Therefore, based on the conclusions heretofore announced, we are constrained to hold appellee’s cross-petition injected into the pending action an independent cause of action, not authorized by our code of civil procedure, which, on the basis of what is said arid held in Beeler & Campbell Supply Co. v. Warren, supra, constituted a misjoinder of causes of action. It follows the trial court’s action in overruling the demurrer to such cross-petition, based on that premise, was erroneous and that its judgment must be reversed with directions to sustain the demurrer.
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Marquardt, J.:
Rockgate Management Company, Bradley Sax, and Marriott International, Inc. (collectively, “Rockgate”) appeal the trial court’s grant of summary judgment to CGU Insurance, Inc./PG Insurance Company of New York (CGU). We affirm.
The Bethesda Full Gospel Church (Bethesda) is a predominantly African-American church located in Buffalo, New York. Mark and Shonder Johnson are youth ministers at Bethesda. In early 1998, Shonder telephoned the Residence Inn to discuss lodging for a youth retreat. Shonder booked two suites, received a confirmation number, and guaranteed the reservation with her credit card.
Prior to the date of the retreat, Shonder visited the Residence Inn to check the accommodations. An employee of the Residence Inn allegedly told Shonder that the group would have “more than enough room” and showed her how furniture could be moved to accommodate sleeping bags. Shonder expressly told Residence Inn personnel about the plans for the retreat and how many people would be staying in the rooms.
Shortly after some of the young adults had arrived at the hotel on the day of the retreat, they were met by Sax, the Executive Vice President and Chief Operating Officer of Rockgate. Sax told the youth that they could not stay at the hotel because they would make too much noise. Sax allegedly told the Johnsons that “under no circumstances” would they be allowed to stay because they would exceed the occupancy regulations and violate the noise ordinance.
In June 1998, the Johnsons, Bethesda, and other named plaintiffs (Bethesda plaintiffs) brought suit in the United States District Court for the Western District of New York, claiming violations of: (1) 42 U.S.C. § 1981 (2000); (2) 42 U.S.C. § 1985 (2000); (3) 42 U.S.C. § 1986 (2000); (4) 42 U.S.C. § 2000a (2000) and 42 U.S.C. § 2000a-l (2000); (5) New York civil rights law; (6) New York civil rights law by aiding and inciting; (7) New York human rights law; (8) New York human rights law by aiding, abetting, inciting, compelling, and coercing; (9) breach of contract; (10) tortious interference with contractual relations; and (11) intentional infliction of emotional distress.
Rockgate, a Kansas corporation, was insured by CGU. CGU received notice of the Bethesda plaintiffs’ complaint. In June 1998, CGU notified Rockgate that its insurance pokey did not cover the claims arising from the Bethesda plaintiffs’ lawsuit. Ultimately, Rockgate settled the Bethesda plaintiffs’ action out of court.
In May 1999, Rockgate filed a petition for declaratoiy judgment in the Johnson County District Court, asking the trial court to find that CGU had a duty to defend Rockgate and that CGU was liable to pay all sums to fully indemnify Rockgate for damages, costs, or expenses that Rockgate incurred in the Bethesda plaintiffs’ underlying lawsuit. In June 1999, this case was removed to federal court in Kansas. However, in January 2000 the case was remanded to Johnson County after it was determined that diversify jurisdiction did not exist.
After both parties filed motions for summaiy judgment, the trial court ruled that there can be no insurance coverage for a claim of denial of accommodations based upon racial discrimination. The trial court found that all of the underlying acts were intentional, which clearly omitted Rockgate from coverage under the CGU policy. Rockgate timely appeals.
Rockgate argues that not all of the claims made by the Bethesda plaintiffs were based on racial discrimination; therefore, some of the claims fell within the scope of policy coverage. Both parties agree that New York law applies. Our standard of review on a question of interpretation of an insurance contract is unlimited. Progressive Casualty Ins. Co. v. Farm Bureau Mut. Ins. Co., 27 Kan. App. 2d 765, 766, 9 P.3d 565, rev. denied 270 Kan. 899 (2000).
Insurance policies must be construed as a whole. Every part must be considered, and none of the words of a policy should be disregarded if a rational and intelligent meaning can be given to them, consistent with the general design and object of the whole instrument. Lee v. Guardian Life Ins. Co. of America, 187 Misc. 221, 223, 46 N.Y.S.2d 241 (1944).
Generally, when an insurer wishes to exclude coverage from its policy, it must do so in clear and unmistakable language. Such exclusions or exceptions must be specific and clear in order to be enforceable, and are to be accorded a strict and narrow construction. Where the policy is ambiguous, and no extrinsic evidence is offered from which it may be concluded that the policy should be interpreted in favor of the insurer, the policy must be narrowly interpreted in favor of the insured. Gaetan v. Firemen's Insurance Company of Newark, 264 App. Div. 2d 806, 808, 695 N.Y.S.2d 608 (1999). However, unambiguous clauses must be given their literal meaning. Amer. Charm Corp. v. St. Paul Life Ins., 53 Misc. 2d 246, 247-48, 278 N.Y.S.2d 270 (1967).
An insurer must provide its insured a defense unless it can show that the allegations of the complaint put it solely within the policy exclusion. The analysis depends on the facts- pled, not conclusory assertions. Where it can be determined from the factual allegations that there is no basis for recovery within the coverage of the policy, a court will sustain the insurer s refusal to defend. Allstate Insurance Company v. Mugavero, 581 N.Y.S.2d 142, 162-63, 589 N.E.2d 365 (1992); see Commercial Union Assur. Co., PLC v. Oak Park Marina, 198 F.3d 55, 59 (2d Cir. 1999).
Insurance Policy Section I, Coverage A1
Rockgate argues that Coverage A of the insurance policy grants them coverage for their claim. Section I, Coverage Al, “Insuring Agreement,” states:
“a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend any ‘suit’ seeking those damages. We may at our discretion investigate any ‘occurrence’ and settle any claim or ‘suit’ that may result.”
Section I, Coverage A2, “Exclusions,” states:
“This insurance does not apply to:
a. Expected or Intended Injury
‘Bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured. This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.”
Within the policy, “bodily injury” is defined as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Finally, “property damage” is defined as “[pjhysical injury to tangible property, including all resulting loss of use of that property.”
Rockgate argues that in New York, the term “accident” is broad enough to encompass reckless conduct which causes emotional distress. Rockgate claims that the Rethesda plaintiffs pled intentional infliction of emotional distress in the alternative as a reckless claim, which means that the plaintiffs would not have to prove intent or discrimination for that claim to succeed.
Where a policy excludes coverage for intentional or criminal acts of an insured, die court must look at the actions as a whole in determining whether an “accident,” as defined in the policy, has occurred. See Allstate Insurance Company v. Ruggiero, 239 App. Div. 2d 369, 370, 658 N.Y.S.2d 321 (1997). In determining whether a policy exclusion covers intentional acts, the relevant inquiry is whether there is a factual or legal basis upon which to find that the consequences of the acts were not expected or intended. See Pennsylvania Millers Mutual Insurance Company v. Rigo, 256 App. Div. 2d 769, 681 N.Y.S.2d 414 (1998).
In 1963, the New York State Superintendent of Insurance determined that acts of discrimination on the basis of race, creed, color, or national origin may not lawfully be written under the New York Insurance Law. A 1989 judicial reaffirmation made it clear that it is against New York public policy to provide insurance coverage against legal liability arising out of the act of discrimination even where the act was unintentional or vicariously imposed. Am. Mgt. Ass’n. v. Atl. Mut. Ins. Co., 168 Misc. 2d 971, 977-78, 641 N.Y.S.2d 802 (1996).
Rockgate contends that the Bethesda plaintiffs’ cause of action for intentional infliction of emotional distress was “clearly [pled] alternatively as a recldess, but not intentional act.” Rockgate refers to paragraph No. Ill of the Bethesda plaintiffs’ complaint, which reads: “These comments and other conduct by defendants, Sax and Rockgate, were intended to cause plaintiffs severe emotional distress and/or constituted a disregard of a substantial possibility of causing severe emotional distress.”
In support of its argument, Rockgate cites Am. Mgt. Ass’n., 168 Misc. 2d 971. However, that case clearly addresses the issue of disparate impact discrimination and age discrimination. 168 Mise. 2d at 976-79. In order to state a claim for discrimination under the disparate impact theory, the complaint must allege, at a minimum, that the insured utilized a facially neutral criterion which resulted in a significant discriminatory pattern of behavior. 168 Misc. 2d at 976.
The Bethesda plaintiffs’ complaint centers on violations of federal civil rights statutes. Rockgate contends that 42 U.S.C. § 1986 does not require intentional conduct. However, 42 U.S.C. § 1986 is inexorably linked to 42 U.S.C. § 1985, which requires a conspiracy. A conspiracy by its very nature requires intent.
The discrimination alleged by the Bethesda plaintiffs cannot be characterized as reckless. The Bethesda plaintiffs alleged that Sax told them they could not stay at the hotel because they would “make too much noise” and “under no circumstances” could they rent a room at the Residence Inn, regardless of how many people were in the room. Of course, there is no facially neutral explanation for that claim. The Bethesda plaintiffs specifically alleged that Rockgate’s refusal to rent rooms was “a pretense for racial discrimination.”
We do not disagree with Rockgate’s contention that in some instances, racial discrimination might be covered by insurance. We strongly disagree, however, that this is one of those cases. There is simply no evidence in the record on appeal to support Rockgate’s claims that the discrimination was somehow reckless or negligent.
In the alternative, Rockgate argues that the insurance policy’s definition of “accident” includes intentional acts where the magnitude of harm was not intended. However, an insurer’s duty to defend will not be triggered merely by a claim that the injuries resulted from an intentional act but were unintended, where the harm to the victim was inherent in the nature and force of the act. Rigo, 256 App. Div. 2d at 771.
There can be no coverage for damages that flow directly and immediately from an insured’s intentional act. Oak Park Marina, 198 F.3d at 59. The existence of an insurance company’s duty to defend depends upon whether the victim’s injuries are inherent in the nature of the insured’s conduct. Pistolesi v. Nationwide Ins., 223 App. Div. 2d 94, 97, 644 N.Y.S.2d 819 (1996). For certain types of conduct, cause and effect cannot be separated. In such cases, if the act is intentional, so is the harm, and the courts will not inquire into the perpetrator’s subjective intent to cause injuiy. Dodge v. Legion Ins. Co., 102 F. Supp. 2d 144, 151 (S.D.N.Y. 2000).
This is not a case where the Bethesda plaintiffs suffered some sort of attenuated harm from Sax’s actions. Rather, the Bethesda plaintiffs allege direct harm from the intentional act of racial discrimination. Given that fact, any discussion of accidental injury is inapplicable.
Rockgate argues that under New York law, emotional distress without accompanying physical injury is a “bodily injury” within the meaning of the policy language. We do not dispute Rockgate’s claim that an action for intentional infliction of emotional distress may he even in the absence of a physical injuiy. In its appellate brief, Rockgate points to a New York court decision which defines “bodily injury” to include mental sickness. However, the policy herein states that “bodily injury” specifically means “bodily injuiy, sickness or disease sustained by a person.” Where the policy defines bodily injury as bodily injuiy, it seems to imply that actual physical injury must occur for policy coverage. There is a disconnect between the general torts holdings in New York and the specific language of this policy. Of course, the particular language of the policy controls our decision here.
In addition, regardless of the presence of bodily injury, there is no coverage in the absence of an “occurrence.” We have already concluded that the intentional behavior undertaken by Sax and the rest of the defendants cannot be an occurrence due to the exclusionary language of the policy. Therefore, the issue of whether there was physical injury is moot. We find no coverage for Rockgate under Section 1, Coverage A of the CGU insurance policy.
Insurance Policy Section 1, Coverage B
Section 1, Coverage B of Rockgate’s CGU policy provides insurance for “Personal and Advertising Injuiy Liability.” The language states in relevant part:
“a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal injury’ or ‘advertising injuiy to which this insurance applies. We will have the right and duty to defend any ‘suit’ seeking those damages. We may at our discretion investigate any ‘occurrence’ or offense and settle any claim or ‘suit’ that may result.”
The policy defines “personal injuiy” as:
“[Ijnjury, other than ‘bodily injury’, arising out of one or more of the following offenses:
“c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord or lessor;
“d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.”
Rockgate claims that an average person would reasonably expect coverage for a wrongful eviction after he or she has been “compelled to leave the premises from which they contend they have a contractual right to use.” Rockgate also argues that the right of private occupancy is established through contract and not through physical possession. Rockgate believes that the Bethesda plaintiffs came into the right of occupancy with the confirmed reservation.
One New York court has defined “wrongful eviction” as involving actual interference with possessory rights to real property. See County of Columbia v. Continental Ins., 189 App. Div. 2d 391, 395, 595 N.Y.S.2d 988 (1993).
“Eviction” is defined as:
“Dispossession by process of law; the act of depriving a person of the possession of land or rental property which he has held or leased. Act of turning a tenant out of possession, either by re-entry or legal proceedings, such as an action of ejectment. Deprivation of lessee of possession of premises or disturbance of lessee in beneficial enjoyment so as to cause tenant to abandon the premises . . . .” Black’s Law Dictionary 555 (6th ed. 1990).
It seems clear that a condition precedent to an action for wrongful eviction is that the person wronged must have been in at least temporary possession of the subject property. Here, the complaint alleges that the Bethesda plaintiffs were “compelled to leave the Residence Inn.” However, the complaint clearly indicates that the Bethesda plaintiffs were never inside a hotel room. Their claim was that Rockgate refused to provide accommodations. This is quite different from a situation where someone is provided a room and is subsequently wrongfully evicted. At all relevant times, the Bethesda plaintiffs were in the lobby attempting to check into the hotel. Without occupancy, there is no eviction.
Rockgate also argues that the Bethesda plaintiffs suffered from an invasion of the right of private occupancy. Rockgate characterizes the complaint as alleging a “contractual right” to the assigned rooms, which in turn gives a right of private occupancy.
The key to interpreting the language defining personal injury to include an “invasion of the right of private occupancy” lies in the definitions of “wrongful entiy” and “eviction,” both of which involve actual interference with possessory rights to real property. Insurance coverage for invasion of the right of private occupancy is limited to liability for purposeful acts aimed at dispossession of real property by someone asserting an interest therein. County of Columbia, 189 App. Div. 2d at 395. The catchall phrase “invasion of the right to private occupancy” encompasses only conduct of the same general type as eviction and wrongful entry. Pipefitters Welfare Educ. Fund v. Westchester Fire, 976 F.2d 1037, 1041 (7th Cir. 1992).
In a case that is similar to the facts currently before the court, Bernstein v. North East Ins. Co., 19 F.3d 1456 (D.C. Cir. 1994), the Bernsteins were accused of refusing to rent an apartment to a woman solely because she was African-American. The Bernsteins argued that North East should defend them based on a clause in the policy that provided insurance for “invasion of tire right of private occupancy.” 19 F.3d at 1457.
The D.C. Circuit noted that the plaintiff never asserted that she at any time acquired the right of private occupancy or that the Bernsteins interfered with that right. Instead, fire alleged wrong focused solely on her right to be considered for a possible future right of private occupancy without discrimination. The court found that any action for invasion of tire right of private occupancy must be preceded by an actual possessory interest in the subject property. 19 F.3d at 1458.
In this case, there was no occupancy. The “wrongful eviction” and “invasion of the right of private occupancy” language of the policy does not apply to these facts.
Finally, Rockgate argues that CGU should have provided a defense to the Bethesda plaintiffs’ claim of slander. Rockgate believes that the Bethesda plaintiffs’ claim for intentional infliction of emotional distress incorporated a defamation claim; namely, Sax’s statement that the group would “make too much noise.” Rockgate contends that this language is enough to constitute a slander claim that would be defensible by CGU.
CGU contends that Rockgate did not properly raise the issue of the Bethesda plaintiffs’ slander claim at the trial court level. CGU argues that Rockgate raised the issue at tire 11th hour, well after the close of discovery and tire submission of all responsive plead ings. CGU encourages this court to dismiss this claim on grounds that it was not properly raised at the trial court level.
Rockgate raised the issue of the Bethesda plaintiffs’ slander claim shortly before the hearing on CGU’s motion for summary judgment. Rockgate admitted that the claim was new. The trial court expressed doubt about the viability of a slander claim, noting that Sax was speaking only about the potential for future disruptive behavior on the part of tire Bethesda plaintiffs. It does not appear that the trial court made a decision on the merits of this issue.
Under New York law, the elements of either libel or slander include: “(1) a false and defamatory statement of fact; (2) regarding the plaintiff; (3) the publication of the written or oral statements to a third party; and (4) injury to the plaintiff.” Ives v. Guilford Mills, Inc., 3 F. Supp. 2d 191, 199 (N.D.N.Y. 1998). When considering whether a statement is slanderous, the statement must be capable of being proven true or false. Unlike a statement of fact, a purely hypothetical statement may be incapable of proof of truth or falsity without probing the mind of the communicator. Caplan v. Winslett, 218 App. Div. 2d 148, 151, 637 N.Y.S.2d 967 (1996). Finally, we note that an indispensable element of slander is the communication of the defamation to at least one person other than the person defamed. Romer v. Portnick, 78 Misc. 2d 404, 405, 356 N.Y.S.2d 424 (1974).
In the case currently before the court, there is no evidence that anyone but the Bethesda plaintiffs heard Sax’s comments about the potential for noise from the group. We believe that this is even more dispositive of the issue than the fact that the statement from Sax was somewhat hypothetical, in that it only predicted future behavior.
After thorough review of all of Rockgate’s arguments on appeal, we conclude that the trial court correctly held there is no coverage under the CGU insurance policy and that CGU did not have a duty to defend Rockgate against the intentional acts of racial discrimination alleged here.
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Beier, J.:
Robert Booth Roe (Baby Roe), his adoptive parents, and his conservator appeal the district court’s summary judgment in favor of defendants, die Kansas Department of Social and Rehabilitation Services (SRS), the State of Kansas, and certain SRS employees. Baby Roe suffered catastrophic injury at the hands of his father despite ongoing SRS monitoring of his family situation and the agency’s awareness that his mother had warned exactly such an injury could occur.
Baby Roe was born to Terri and Booth Tuthill in Pittsburg on August 6, 1992. Medical personnel and employees of the Tuthills’ residential facility had concerns regarding Baby Roe’s parents even before his birth. Specifically, SRS was told by letter that Terri exhibited symptoms of psychosis and depression, that she and Booth abused drugs and alcohol, and that Booth physically abused Terri.
Defendant Mary Keady (Keady), an SRS social worker, was assigned to the matter in June 1992. Keady kept some contemporaneous logs of her efforts regarding the Tuthills. However, her supervisor, defendant Wayne Sramek, permitted Keady to add to these logs after Baby Roe was injured.
Keady attempted to meet with Terri three times before Terri delivered Baby Roe. At the first visit, Terri was “very guarded and untrusting and did not want any part [oí] SRS’ help.” On the sec ond and third occasions, Terri apparently refused to answer her door.
The day after Baby Roe’s birth, the Bureau of Indian Affairs (BIA) was notified, pursuant to the Indian Child Welfare Act, because both parents had Native American ancestry. Booth, in particular, was registered by the Quapaw tribe. The hospital launched meetings among nursing staff, psychiatric staff, SRS staff, and BIA staff that day because of its concerns about the Tuthills’ ability to care for Baby Roe. The goal, in Keady’s words, was to “insure that [the baby] was safe” when he was discharged with his mother. According to notes taken by Terri’s obstetrician:
“A meeting was held with nursing staff, psychiatric staff, SRS staff, and two staff persons from the [BIA], to make arrangements for very close home follow up for mother and baby. It was decided that the [BIA] would handle the home care follow up. Concerns were expressed regarding the welfare of tire infant at this meeting. It was felt that the patient was exhibiting fairly good mothering instincts and it was hoped that with close home follow up the infant’s status could be evaluated. All personnel were made aware of the potential problem and close home follow up is planned by Lisa Lucher [sic] of die [BIA].”
A hospital social worker recorded the following regarding the discharge plan:
“[BIA’s] Sally [Whitecrow-]Ollis, Director of Social Services, and Miss Lisa Luther, Child Protection Worker[,] . . . came to the hospital and did interview Terri and Booth and provided assessment for this couple concerning their follow up needs. Both Miss [Whitecrow-]011is and Miss Luther met with [hospital staff], concerning the needs of this couple. It was decided that Lisa would be the contact person for Terri and Bootíi and would provide daily supervision of their care of the infant. The couple met with die team and it was noted that Terri [was] quite anxious and overwhelmed by the number of people involved in working with her and request was made that she relate to one person, and that one person that she had chosen was Lisa Luther from the Indian Social Services Program. Lisa agreed to provide daily supervision and be accessible to Terri and Booth in caring for their son. Plans were for Terri and the infant to remain in the hospital during the weekend to provide further instruction to her in the carq of the infant with plans for her and the baby’s discharge on Monday morning, August 10th. Lisa will be at the hospital Monday morning and accompany the couple home from the hospital.”
Luther testified about one of tire meetings with hospital staff as follows:
“A.: [Luther]: I came to work on the morning of August 7th, 1992, and was told by my supervisor that we were going to Pittsburg, and so we went to Pittsburgh. “Q.: [Mr. Tomassi]: Your supervisor was Sally Ollis?
“A.: Right. And we went to Pittsburg and met with—there was a worker there, but I can not [sic] recall whether it was from—I know it says the mental health workers, but I can not [sic] recall whether they—who it was, whether they were from Kansas SRS, or the mental health community, or who they were.
“Q.: Would you remember any name?
“A.: No.’
“Q.: Okay. And what was discussed?
“A.: From what I can remember the discussion was between Sally Whitecrow-Ollis and the worker—workers. I believe there were two of them. And the discussion was mainly over jurisdiction, who had jurisdiction on the case.
“Q.: All right. Do you recall what was said?
“A.: Yes. Sally was stating that we had jurisdiction. The workers were trying to immediately pull the child from—or terminate Booth and Terry’s [sic] parental rights, and Sally was stating that they did not—they had no jurisdiction, that we had jurisdiction, you know, because we administered the social services for the Quapaw tribe at the time. And there was some discussion back and forth and it was determined the workers just, I guess, backed off, just said okay, you guys have jurisdiction.”
Whitecrow-Ollis’ memory of these events was that Keady wanted BIA to take “complete charge” of the Tuthill case, but that was not “an option.” According to Whitecrow-Ollis, BIA agreed to provide parenting education to Terri; SRS did not ask BIA to investigate child abuse reports and did not expect it to pursue such investigations. Whitecrow-Ollis testified that she did not think BIA was capable of providing full-time services, and the plan was that BIA workers would visit the Tuthills only “once or twice a week and assist in teaching [Terri] whatever it was, trying to keep her calm.”
Defendants admit that SRS’s role was to monitor the services to be provided to the Tuthills after discharge. According to Keady, this monitoring was to include making sure that BIA was providing services and maintaining contact with the mental health center, i.e., to make sure these entities were following through with planned visits and assistance. She stated that her understanding was that BIA would visit the Tuthills for several hours at least twice a week. She testified she did not know what services were to be provided by mental health workers. Finally, Keady also testified that her role, if she deemed BIA and mental health services to be inadequate, would require her to consult with Sramek and “go from there.” Sramek testified that, although it would have been general practice and “possibly would have been appropriate” for SRS to prepare a family services plan for the Tuthills, this was never done. Such a plan would have defined precisely what each agency committed to providing for the family.
Upon discharge from the hospital, Terri and Booth took Baby Roe home to the Oak Place Residential Facility for the mentally ill in Pittsburg. Baby Roe had scored 8 and 9 out of 10 on APGAR birth assessments, and he went home in “good” condition. Health care workers at the residential facility also had documented a care plan. They noted that BIA “agreed to place a worker in the home 8am-5pm[,] Mon[day] thru Fri[day] to help teach Terri how to take care of the baby.” They also noted BIA had jurisdiction to determine whether Baby Roe should be placed outside of the family.
Luther conducted at least some of the anticipated home visits to Terri and Baby Roe. She described Terri as lacking “basic parenting skills” and said the same of Booth. Luther did not recall ever meeting with SRS or giving SRS staff written reports about her visits to the Tuthill home. She also did not recall receiving information about Terri or Booth from SRS. She remembered only that Ollis told her Terri was “mildly psychotic” and Booth was “mildly retarded.” Luther soon left her position as a BIA child protection worker.
Community mental health worker Jeanne Brown testified in her deposition that BIA workers never spent full weekdays with Terri and Baby Roe. By August 17, Luther had been replaced by BIA worker Linda Turner Smith, and Smith reported that her initial relationship with Terri on that date was “uneasy” because there already had been a lapse of services since Luther’s departure. In addition, Whitecrow-Ollis testified that eventually Terri would no longer let Smith into the Tuthill home. Whitecrow-Ollis said she was sure BIA reported this development to SRS as well as mental health workers. Keady testified that she was told as early as August 18 that mental health staff were having trouble getting access to the Tuthill home. This concerned her, she said, because it made monitoring impossible.
On September 24,1992, Brown documented a conversation with Terri in which Terri stated she was afraid that Booth would hurt Baby Roe by shaking him too hard and that Terri would be unable to stop him. This was reported to SRS child protection services.
On September 25, 1992, Sramek told Keady about Booth’s alleged abuse of Baby Roe. Sramek did not believe the report was “valid,” but instructed Keady to “coordinate with [BIA].” He “wanted [BIA workers] to know that [Terri] was making this allegation . . . because [BIA was] one of the primary service providers ... in case they saw any evidence they could report it ... so they could look for evidence, if necessary.” Sramek nevertheless personally believed that the baby was safe. He said he formed his opinion because of what he understood to be Brown’s belief, although he could not recall whether he or Keady or an SRS child protection worker had talked to Brown about the report.
No one from SRS ever visited personally with the Tuthills to follow up on the Brown abuse report, although Brown had agreed to go with an SRS worker to visit the family. Sramek said no one visited because it was determined that the report was not to be believed. This was not the normal SRS procedure, as this passage from Sramek’s deposition demonstrates:
“Q. [W]hat would you generally do if you had allegations of a father shaking a two-month old infant, what would you normally do?
“A. Assign it for investigation.
“Q. And did you do that in this case?
“A. No.
“Q. And you knew the mother had mental illness?
“A. Yes.
“Q. And so you know her allegation could have been true or not true?
“A. Yes.
“Q. And you know that tire baby could have been in danger just because of the mother s mental illness, is that right?
“A. Yes.
“Q. And you still didn’t assign it for investigation?
“A. Because the mandated reporter did not believe the abuse was occurring.
“Q. And if she disagrees with you on that statement, then you’ve made a serious mistake, haven’t you?
“A. Yes.”
According to Sramek, Brown was never sent a Notice of Action, which is the form SRS uses to let a mandatoxy reporter know what was done by the agency in response to an allegation of abuse or neglect. In Sramek’s words, Terri’s allegation about Booth shaking Baby Roe “went outside of [SRS’s] normal practice. [The] report was neither screened out nor screened in, but was passed on to Mary Keady.” Keady said in her deposition that she never investigated personally because it would have been an SRS child protection worker’s responsibility to do so rather than hers.
Keady testified that she did call BIA, but its office was closed. Although she said that she tracked down a BIA secretary at home, apparently she was told that no one but Whitecrow-Ollis or Smith was acquainted with the family’s situation. Whitecrow-Ollis testified she did not recall receiving a telephone call from Keady about the Brown report, and Smith denied ever hearing about the September allegation that Booth had shaken Baby Roe. Keady’s logs reflect that she finally had a conversation with Whitecrow-Ollis on September 30 but not that she discussed whether BIA had investigated or would investigate die abuse allegation.
Keady also testified that she called Brown and discussed Terri’s abuse allegation. Brown recalled no such conversation and said she would not have minimized the report of Booth’s behavior and would not have told SRS that Terri was mentally ill and on medication because it would have been irrelevant. Brown also said she would not have said she did not believe Terri.
On October 7, Keady learned that Brown had contacted SRS again because Terri had left Baby Roe alone. Terri had to be hospitalized in Osawatomie, and Baby Roe was left in the care of his father and a sitter. Keady and Sramek asserted that Brown said she thought Baby Roe’s father was doing a good job, but Brown denied ever telling anyone at SRS that the situation was safe. SRS did nothing to follow up on the report of neglect by Terri or to check on how Baby Roe was faring in the care of his father.
On October 12,1992, Baby Roe was life flighted to Kansas University Medical Center. He was in respiratory distress and had a “skull fracture, subarachnoid hematoma (bleeding between skull and brain), and . . . (retinal hemorrhages).” He had also had seizures and had required mechanical ventilation.
Booth was convicted of attempted abuse of a child. Terri has since died. Baby Roe is “now permanently and profoundly mentally retarded.” His prognosis suggests that he “will never be able to dress himself or to be toilet trained.”
■ Baby- Roe, his adoptive parents, and his conservator filed suit against SRS; the State; Herbert. Hickman, Sramek’s superior at SRS; Sramek; and Keady. Hickman was dismissed from the suit, and the district court entered summary judgment on behalf of the remaining defendants, concluding they owed no legal duty to Baby Roe. The district court wrote:
“In order for plaintiff to have a submiss[i]ble case under [Restatement (Second) of Torts] §324A, there must be evidence that SRS undertook to render service’s to the plaintiff child’s parents, that SRS through affirmative act or agreement assumed an obligation to render services to the child’s parents or intended to render services for the benefit of the child’s parents and that the services rendered were more than a limited undertaking, that is, such that SRS recognized that they were necessary for the protection of the child. There is just no evidence here that SRS ever rendered services to this child’s parents of the quality or nature that is contemplated by § 324A.”
Given the summary disposition below, we must resolve all facts and inferences that may reasonably be drawn from the evidence in favor of Baby Roe. Summary judgment is appropriate — and will be upheld on appeal — only when the record conclusively demonstrates there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 829, 877 P.2d 430 (1994).
The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that, unless a statutory exception applies, a “governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of the state.” K.S.A. 2002 Supp. 75-6103(a).
In Kansas, a plaintiff in a negligence action must first prove the existence of a duty owed to him or her by the defendant. The existence of a duty is a question of law, and our review of questions of law is unlimited. P.W., 255 Kan. at 831.
In this case, Baby Roe argues only that a duty arose under Restatement (Second) of Torts § 324A (1964).
Baby Roe does not argue that SRS’s statutory duty to investigate child abuse reports was owed to him individually rather than to the public at large. This route was foreclosed to him by prior cases. See Beebe v. Fraktman, 22 Kan. App. 2d 493, 496, 921 P.2d 216 (1996) (statute governing SRS investigations created only public duty, not duty to child whose father had been reported for suspected abuse); see also Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 631, 938 P.2d 1293 (1997) (any mandatory term regarding placement in Kansas Manual for Youth Services created only public duty; no duty to individual injured by youth escaping from residential facility); Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 398, 931 P.2d 26 (1997) (duty to public, not accused child abuser targeted by SRS investigation).
Baby Roe also does not argue that a “special relationship” existed between him and the defendants. See Restatement (Second) of Torts § 315 (1964); P.W., 255 Kan. at 832-33. And he does not assert that a duty arose out of the doctrine of parens patriae. See 255 Kan. at 834-35.
The Kansas Supreme Court adopted § 324A of the second Restatement in Schmeck v. City of Shawnee, 232 Kan. 11, Syl. ¶ 4, 651 P.2d 585 (1982). This section provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
In Schmeck, plaintiff motorcyclist was injured at an intersection with no left turn light. Our Supreme Court upheld the district court’s application of § 324A to find a duty flowing to the plaintiff from the power company responsible for designing the proper traffic signal system for the city. The company had assumed part of the city’s duty to keep its streets reasonably safe for their intended use. Schmeck, 232 Kan. at 17.
In contrast, the next Supreme Court case in which § 324A was relied upon reversed a juiy verdict in favor of a plaintiff, holding no duty had arisen as a matter of law. In that case, Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 662 P.2d 243 (1983), the court considered whether an architectural firm had potential liability for injuries suffered by workers on a jobsite. The court concluded it did not:
“Absent any showing that the architect affirmatively or by its actions assumed such a duty, we find none in the employment contract. The architect’s contractual duties were to get tire building constructed as soon as possible in accordance with tire plans and specifications and the contract . . . between the contractor and the owner.
“. . . [T]he defendant has specifically disclaimed any responsibility for safety conditions on the . . . jobsite and, as alleged by plaintiffs, did nothing relative to safety on the jobsite.
“. . . There is nothing in the record which would support a finding that [defendant] by its actions undertook or could have impliedly assumed responsibility for safety procedures on the jobsite.” Hanna, 233 Kan. at 212.
Had there been evidence that the architectural firm had actual knowledge of unsafe practices, however, the court made a cryptic suggestion that the analysis could have led elsewhere.
“As a professional, an architect cannot stand idly by with actual knowledge of unsafe safety practices on the jobsite and take no steps to advise or warn the owner or contractor .... [I]n such a situation, . . . the plaintiffs still bear the burden of showing the duty owed to them, a breach of that duty, and that the breach was tire proximate cause of the injuries suffered. [Defendant] was hired ... to design a building and to see that the finished product conformed to the plans and specifications. The employment contract . . . did not include responsibility for safely procedures on the jobsite and they did not assume such responsibilities outside die duties imposed by the contract. To the contrary, the contract specifically provided that the general contractor would assume such duties. [Defendant] was not responsible for the injuries suffered by the plaintiffs.” 233 Kan. at 221-22.
Subsequent cases before our Supreme Court and before panels of this court have further refined Kansas’ approach to § 324A cases. The initial requirement is an undertaking by the defendant. Gratuitously or for consideration, the defendant must have undertaken to render services to another, and the services must be such that the defendant is on notice they are necessary for the protection of a third party. Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 669, 792 P.2d 993 (1990). The undertaking cannot be purely to serve the purposes of the actor.
“ ‘Persons pursuing their own interests often benefit others in the process. Accordingly, where a plaintiff seeks to prove an undertaking by conduct which benefits another and that conduct is consistent with a primary purpose on die part of the actor to benefit himself, die plaintiff must offer additional evidence to create a jury question whether there was an undertaking to render services and hence-a duty to one who might foreseeably be injured by the actor’s failure to perform the undertaking with reasonable care.’ ” Gooch, 246 Kan. at 675 (quoting Smith v. Allendale Mutual Ins. Co., 410 Mich. 685, 303 N.W.2d 702 [1981]).
A defendant’s voluntary § 324A undertaking may be implied rather than explicit. See Hanna, 233 Kan. at 219 (defendant could have “impliedly” assumed responsibility); see also Cansler v. State, 234 Kan. 554, 566, 675 P.2d 57 (1984) (if sheriff s office repeatedly over time notified surrounding law enforcement agencies of penitentiaiy escape, duty to disseminate such information promptly may have been established). But such an undertaking is not accidental; it is a conscious commitment made through an affirmative action or an agreement entered into by the defendant. P.W., 255 Kan. at 834; Gooch, 246 Kan. at 674-75.
The extent of the undertaking defines the scope of the duty that arises as a result. McGee v. Chalfant, 248 Kan. 434, 442, 806 P.2d 980 (1991) (defendants who assumed duty to take drunk driver to car assumed no further duty to transport him home or otherwise control his future actions). And the harm to the plaintiff or the plaintiff s property must be physical. See Barber v. Williams, 244 Kan. 318, 324, 767 P.2d 1284 (1989) (even if city’s licensing of fortune teller had constituted § 324A undertaking, plaintiff suffered no physical harm); Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 23 Kan. App. 2d 1038, 1044-45, 940 P.2d 84 (1997) (physical damage to plaintiffs property sufficient).
Once an undertaking is found to be sufficient, we are required to consider the three subsections of § 324A. One must apply before a defendant will face potential liability.
Subsection (a) requires that the defendant’s failure to exercise reasonable care must have increased the risk of harm to the plaintiff. See Beshears v. U.S.D. No. 305, 261 Kan. 555, 565, 930 P.2d 1376 (1997) (any alleged failures by school district to abide by policies regarding expulsion, student conflicts did not increase risk of harm); Beebe v. Fraktman, 22 Kan. App. 2d at 496 (“By Monday morning quarterback standards, SRS might have decreased the risk . . . had it opened a file and actively investigated; however, we cannot state that SRS’s failure to do so increased the risk of harm.”)
Subsection (b) requires that the defendant must have undertaken to perform a duty owed by another to the plaintiff. Compare Gooch, 246 Kan. at 676 (no duty where church to whom defendants rendered services had never surrendered any part of its obligation to maintain building; person to whom defendant’s undertaking directed “must accept such services in lieu of, or in addition to, such person’s obligation to perform services”), to Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 294-95, 672 P.2d 1038 (1983) (Kansas Turnpike Authority’s duty to maintain turnpike safety included inspection duty passed on to defendant; defendant potentially hable to plaintiff injured because of unsafe turnpike bridge); Chadwell v. Clements, 18 Kan. App. 2d 84, 89-91, 847 P.2d 1344 (1993) (defendant employer assumed no duty of county to make crosswalk safe).
Subsection (c) requires that the harm suffered by the plaintiff must have been caused by the plaintiff s or the other’s reliance on the defendant’s undertaking. See P.W., 255 Kan. at 833-34 (no evidence defendant made specific promise, representation to plaintiffs that would induce justifiable reliance); Chadwell, 18 Kan. App. 2d at 91 (plaintiff did not rely on presence of guard when using crosswalk).
Our exhaustive review of Kansas cases interpreting and applying § 324A persuades us that our courts have generally been slow to see an undertaking sufficient to create a duty. See Prime v. Beta Gamma Chapter of Pi Kappa Alpha, 273 Kan. 828, 842-43, 47 P.3d 402 (2002) (no undertaking by landlord to prevent fraternity member from consuming alcohol); Glaser v. U.S.D. No. 253, 271 Kan. 178, 191, 21 P.3d 573 (2001) (no school district undertaking to protect or supervise student hit by car when he ran off of school grounds before school); Beshears, 261 Kan. at 565 (school district had no duty to protect student from injuries suffered in fight after school off of school premises); Calwell v. Hassan, 260 Kan. 769, 783-84, 925 P.2d 422 (1996) (prescribing physician had no duty to warn patient of likelihood of drowsiness; no duty to cyclists injured when patient falls asleep at wheel); Honeycutt v. City of Wichita, 251 Kan. 451, 468, 836 P.2d 1128 (1992) (school district did not undertake to provide railroad crossing guard); Anderson v. Scheffler, 248 Kan. 736, 742, 811 P.2d 1125 (1991) (defendant who ordered component parts of conveyor system bore no responsibility for design); Gooch, 246 Kan. at 676 (inspecting engineers did not undertake to provide warning of unsafe building to neighbors); Meyers v. Grubaugh, 242 Kan. 716, 723, 750 P.2d 1031 (1988) (employer undertook no duty to keep drunk employee-from driving home); Hanna, 233 Kan. at 222 (architecture firm undertook no duty for safety at jobsite); Doss v. Manfredi, 30 Kan. App. 2d 269, 271, 40 P.3d 333 (2002) (chiropractor hired by insurance company to review patient’s file assumed no duty to patient); Prugue v. Monley, 29 Kan. App. 2d 635, 639, 28 P.3d 1046 (2001) (employment manual’s prohibition of drinking on duty does not constitute employer undertaking to protect third parties from foreseeable risks created by bar manager’s alcohol consumption); Estate of Beckner v. Jensen, 29 Kan. App. 2d 129, 136, 24 P.3d 169 (2001) (no affirmative act in allowing young man to attend post-prom party; hosts undertook no duty to prevent him from driving while tired); Chadwell, 18 Kan. App. 2d at 89-91 (employer assumed no duty to employee by cooperating with county on street crossings).
Kansas cases in which an undertaking sufficient to create a duty was recognized have been comparatively fewer and farther between than their analytical opposites. See Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 266, 43 P.3d 799 (2002) (transportation agency had duty to maintain fences along highway); Johnson v. Board of Pratt County Comm’rs, 259 Kan. 305, 318, 913 P.2d 119 (1996) (designer of bridge for county owed duty to downstream landowner plaintiffs); Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 115, 883 P.2d 1120 (1994) (manager of father’s farm operation had duty to employee injured in combine); Fudge v. City of Kansas City, 239 Kan. 369, 373, 720 P.2d 1093 (1986) (mandatory policy demanded police take drunk into protective custody to protect third persons); Cessna Aircraft Co., 23 Kan. App. 2d at 1045 (approving district court employment of § 324A to hold lease gave rise to duty to provide lessee — and thus its sublessee — fire protection).
As certain of the citations above suggest, several Kansas decisions holding that no duty arose under § 324A have involved SRS and/or its employees as defendants.
The first of these cases, P.W. v. Kansas Department of Social and Rehabilitation Services, 255 Kan. 827, involved a licensed day care center. Plaintiffs’ children were cared for at the center. SRS and the Kansas Department of Health and Environment had taken no action on several reports of abuse at the center. SRS also had not warned die plaintiffs about the allegations. Our Supreme Court held that the agencies had no duty to warn, stating simply:
“The plaintiffs have not come forward with any evidence to indicate . . . SRS [has] performed any affirmative acts towards tírese plaintiffs, nor have the plaintiffs demonstrated a question of fact exists as to whether . . . SRS entered into any agreement with these plaintiffs. Without an affirmative act or an agreement, there is no duty owed under § 324A.” 255 Kan. at 834.
In Beebe v. Fraktman, 22 Kan. App. 2d at 493, a panel of this court examined whether SRS owed a § 324 duty to a child killed by her father. SRS’ Wichita office had received two reports of suspected abuse and neglect. The first came from the child’s maternal grandmodier and the grandmother’s counselor. SRS social workers reviewed the file, determined that the child was at minimal risk, and did not open a case for investigation. The second report came from the child’s pediatrician, who contacted SRS regarding possible sexual abuse when the child’s father brought her in for treatment for vaginal bleeding. The pediatrician did not say that the bleeding was “conclusive” of abuse. Again, SRS employees reviewed the information submitted and decided not to open a case for investigation. Stressing that the grandmother was given no promise of an investigation and that the pediatrician was told only that someone would follow up on the report, the panel held that no undertaking occurred under § 324A. 22 Kan. App. 2d at 496.
In Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, another panel of this court refused to find that SRS undertook a duty to a teacher accused of child abuse merely because it investigated a student’s complaint. Noting the investigation was required by law, the panel stated: “There is no evidence whatsoever that SRS performed any affirmative act to render services for [plaintiff] or entered into any agreement to do so.” 23 Kan. App. 2d at 399. Citing P.W., 255 Kan. 827, the panel said: “Since the law is clear that SRS owes no duty to abused children, it surely owes no duty to an alleged abuser. ” 23 Kan. App. 2d at 398.
In Kennedy v. Kansas Dept. of SRS, 26 Kan. App. 2d 98, 981 P.2d 266, rev. denied 267 Kan. 889 (1999), another panel of this court rejected a § 324A claim from a later target of an SRS abuse investigation. The plaintiff had argued the agency’s referral to the county attorney for criminal prosecution constituted an affirmative act. The panel said of the plaintiff: “He overlooks the Restatement’s requirement that the defendant undertake to render service to the plaintiff .... If [the] recommendation created a special duty on this theory, the duty was to the alleged victim, not to the plaintiff.” 26 Kan. App. 2d at 102.
Defendants Sramek and Keady also cite a case from the Kansas federal court, A.S. By and Through Blalock v. Tellus, 22 F. Supp. 2d 1217 (D. Kan. 1998). This decision has no bearing on the § 324A issue at hand. It analyzes only whether federal substantive or procedural due process claims can be based on an SRS failure to remove a child from an abusive adult’s care. 22 F. Supp. 2d at 1222-23.
Our careful consideration of all this prior case law demonstrates that it is an overgeneralization to say SRS owes “no duty to abused children.” The law is clear that SRS owes no statutory duty to investigate abuse and neglect reports to individuals. But neither P.W. nor any odier Kansas case holds that SRS may not, through an affirmative act or agreement, undertake a § 324A tort duty to an individual. •
Once Baby Roe was born, the only explicit or formal undertaking or agreement by SRS was its admitted commitment to monitor the services provided to the Tuthills for the benefit of Baby Roe. The various agency representatives and health care providers who attended the hospital meetings before Terri and Baby Roe were discharged may differ somewhat in their recitations regarding tiróse events, but none dispute that SRS took on a coordinating or monitoring role, and the efforts of all were directed, to seeing that tire Tuthills received the support services they needed to protect Baby Roe. The district court therefore erred in holding that no § 324A duty arose.
Did the SRS duty also fit at least one of the three subsections of § 324A? We think the uncontroverted evidence is that it did. When parents are healthy, our culture and governmental system allocates to them the responsibility of caring for their children, including monitoring any part of the care they delegate to others for protection of the children. In this case, it was determined that Terri and Booth were not capable of bearing that responsibility without assistance. The assistance was to be provided by a team-of agencies to be monitored by SRS. In this way, SRS undertook part of a duty owed by Terri and Booth to their child. Subsection (b) was satisfied.
SRS’s duty also continued, at least impliedly, until the time of Baby Roe’s injury. Sramek’s instruction to Keady to follow up with BIA on Brown’s late September report of Terri’s abuse allegation is one fact demonstrating that all of the parties involved shared this understanding of SRS’s role. Without such an understanding, there also would have been no reason for Brown and SRS to keep in contact about Terri’s departure for her Osawatomie hospitalization and Booth’s resulting caretaker responsibility for Baby Roe. As Keady said herself, SRS was responsible for making sure that BIA and mental health personnel delivered the support services the family needed to “insure that [the baby] was safe.”
We must again stress that this tort duty to Baby Roe was distinct from SRS’s independent statutory duty to investigate reports of abuse and neglect. Precedent dictates that the statutory duty and any breach of it, no matter how obvious, cannot be relied upon by an abused child. To the extent that SRS deviated from its established policies for handling the late September abuse allegation or the early October neglect report, and those deviations constituted a breach of its statutory duty to the public, they are relevant in this case only to the extent that a party charged with the tort duty SRS undertook voluntarily should have acted differently than Keady and Sramek. In short, it is the statutory duty that SRS did not owe to Baby Roe individually. We hold here that, on these facts, it did owe him a tort duty. Under § 324A, SRS and its employees had to use reasonable care to monitor service delivery to the Tuthills to protect Baby Roe. SRS voluntarily and affirmatively undertook this obligation. Now, a jury must be permitted to decide the fact issues of whether defendants’ conduct measured up to the § 324A standard and, if not, whether their failure was the proximate cause of Baby Roe’s injuiy.
One more point merits brief mention: Defendants state in their brief that plaintiffs attempt to argue on appeal that SRS was negligent in selecting BIA to provide day-to-day services to the Tuthills. To the extent this is a correct characterization of plaintiffs’ position on appeal, we agree that such a claim was not pursued before the district court. We will not address it for the first time on appeal. See Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
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Rulon, C.J.:
The Kansas Department of Social and Rehabilitation Services (SRS) and L.W. and R.W., the foster parents of D.C., appeal the district court’s judgment that SRS and its con tracting agency, Kansas Children’s Service League (the League), had not exercised reasonable efforts in finding a permanent placement for D.C. and the court’s order to transfer D.C. to her maternal aunt and uncle, J.P. and D.P., in Arizona. We affirm in part, reverse in part, and remand the case for further proceedings.
Shortly after D.C. was bom on October 13, 2000, she was taken from her natural parents and placed with a maternal aunt, P.B., who lived in Parsons. Although the Arizona relatives expressed an interest in becoming permanent guardians of the child and an expedited home study was conducted in Arizona, SRS filed its motion to terminate the natural parents’ rights to D.C. Thereafter, the natural parents relinquished their rights to the child, and the child was placed with her Parsons aunt.
The Arizona aunt and uncle expressed their wish to adopt the child, but, because SRS and the League failed to request information on the child’s Native American heritage under the Indian Child Welfare Act, 25 U.S.C. § 1901 (2000) etseq., see K.S.A. 38-1339, the agencies could not move forward with the Arizona relatives’ adoption request under the Interstate Compact for the Placement of Children (Interstate Compact). See K.S.A. 38-1201 etseq. Consequently, SRS, the League, and tire guardian ad litem decided to terminate the Interstate Compact process for the Arizona relatives and attempted to place tire child with the Parsons aunt.
The attempted adoptive placement with the Parsons aunt was unsuccessful, and the child was placed in the home of the foster parents. Thereafter, tire Arizona relatives and the foster parents both sought to adopt D.C. After finally completing an adoptive placement home study through the Interstate Compact, the League held a case plan meeting at which SRS and the League unanimously decided to place D.C. with the foster parents, not the Arizona relatives.
The Arizona relatives contested the placement decision. After a full evidentiary hearing, the district court ruled that SRS and tire League had not used reasonable efforts in placing D.C. because the agencies had disregarded policies regarding placement preferences for relatives of the child. The district court further ordered placement of D.C. with the Arizona relatives under K.S.A. 38-1584(b)(1)(A). SRS and the foster parents appealed.
Judicial Authority to Review Placement Decision
Although the appellants argue the district court lacks authority to review a placement decision of SRS when the agency gains custody of a child through voluntary relinquishment proceedings, this court has previously rejected that argument. See In re J.D., 31 Kan. App. 2d 658, 70 P.3d 700 (2003).
“Although it may be trae that [K.S.A.] 38-1584(d) explicitly comes into play only when there has been an involuntary termination of parental rights, we see no meaningful distinction between a child in those circumstances and one in the position of J.D. Indeed, if a CINC proceeding has already been filed when a voluntary relinquishment takes place, the situation is practically and legally identical to that in a CINC proceeding where an involuntary termination has occurred. At that point, the court has a necessary and continuing role in supervising an appropriate permanency plan designed to prevent foster care ‘drift.’ [Citations omitted.]” 31 Kan. App. 2d at 663-64.
However, once the district court has ordered a child into SRS custody for adoptive placement under K.S.A. 38-1584(b)(l)(A), the court’s role is limited to supervision to ensure the appointed agency diligently seeks an appropriate placement of the child. A district court’s review of an agency adoption placement decision following a voluntary relinquishment is similarly limited. See In re J.D., 31 Kan. App. 2d at 664.
The appellants attempt to impose a narrow interpretation of “reasonable efforts” upon the statute, arguing that if SRS determines an appropriate placement for a child within a reasonable amount of time, the district court possesses no statutory authority to disapprove of such placement. In contrast, the Kansas Code for the Care of Children, K.S.A. 38-1501 et seq., is to be liberally construed to provide children with the care, custody, guidance, control, and discipline that will best serve the welfare of the child and the interests of Kansas. See K.S.A. 38-1501.
K.S.A. 38-1584(d) plainly allows judicial review of the agency placement process to determine whether “reasonable efforts or progress” has been made. If “reasonable efforts” encompasses only the efficiency with which SRS finds suitable adoptive placements, the inclusion of the term “reasonable progress” would be rendered redundant by the term “reasonable efforts” and, therefore, rendered meaningless. It is a maxim of statutory interpretation that a court presumes that the legislature did not intend to enact useless or meaningless legislation. See In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002).
“The purpose of [K.S.A. 38-1584] is to provide stability in the life of a child who must be removed from the home of a parent, to acknowledge that time perception of a child differs from that of an adult and to make the ongoing physical, mental and emotional needs of the child the decisive consideration in proceedings under this section. The primary goal for all children whose parents’ parental rights have been terminated is placement in a permanent family setting.” (Emphasis added.) K.S.A. 38-1584(a).
In light of this purpose, a reasonable permanent placement decision necessarily implies a decision that is in the best interests of the child under the circumstances. Efficiency of placement is but one aspect of an appropriate placement decision. The policies and procedures implemented by an agency and the manner in which those policies and procedures are implemented affect the reasonableness of an adoptive placement decision as much as the timeliness of the placement decision.
When a district court is required to make a custody placement decision after the termination of parental rights, the court must consider all of the facts and circumstances in light of the child’s physical, mental, and emotional needs. In doing so, the court must give primary consideration to granting custody to a relative of the child. See In re J.A., 30 Kan. App. 2d 416, 423, 42 P.3d 215, rev. denied 274 Kan. 1112 (2002); K.S.A. 38-1584(b)(4).
The League admits that it is governed by similar considerations in making a placement decision. With respect to relative preference, “reasonable efforts” requires, at a minimum, that the agency responsible for finding suitable placement impartially consider any relatives of a child who are potential adoptive resources in a timely and consistent manner. Because SRS and the League allegedly excluded the Arizona relatives as an adoptive resource by failing to consider their application in a timely and consistent manner, the district court was well within its authority to review the reasonable efforts of SRS and the League’s placement determination under K.S.A. 38-1584(d).
“Reasonable Efforts” Determination
In finding that SRS and the League had not exercised reasonable efforts in the placement of D.C., the district court adopted the proposed findings of the Arizona relatives, the assistant county attorney, and the guardian ad litem. Where a district court has made findings of fact and conclusions of law, an appellate court applies a mixed standard of review. A district court’s findings of fact are reviewed for substantial competent evidence, which is such legal and relevant evidence as a reasonable person might accept as sufficient to support the legal conclusions. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001). This court possesses unlimited review of the district court’s legal conclusions. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
The factual allegations leveled against SRS and the League revolve around three issues involving the implementation of the Arizona relatives’ Interstate Compact process, the notification of pertinent procedures and policies with respect to the placement process, and the consistent application of evaluation criteria.
The Interstate Compact for the Placement of Children
Even before the natural parents relinquished their rights to D.C., the Arizona relatives had expressed interest in obtaining custody of D.C. as guardians. At the time, the district court approved a relative placement home study for the Arizona relatives, which involved an expedited Interstate Compact process. After D.C.’s parents relinquished their rights, the Arizona relatives expressed interest in adopting D.C. Still, the League did not send the Interstate Compact request for an adoptive placement home study to Arizona for another 10 months.
According to SRS and the League, the primary delay in completing the Interstate Compact process was the absence of Indian Child Welfare Act information. Although such information is required in every agency adoption case, Interstate Compact procedures apparently demand that the agency acquire information on the child’s Native American ancestry, if any, before forwarding the Interstate Compact request to the foreign jurisdiction. Yet, no Indian Child Welfare Act information was sought in this case prior to the League’s entry into the adoptive process.
Nevertheless, after the parental rights to D.C. were relinquished to SRS, neither SRS nor the League attempted to obtain Indian Child Welfare Act information until April 8, 2002. This failure, especially in light of the apparent Interstate Compact requirements, cannot be deemed the exercise of reasonable efforts to include the Arizona relatives in the adoptive placement consideration. Even when the League realized that information regarding D.C.’s Native American heritage had not been obtained, the agency failed to pursue the information diligently. Rather than sending a registered letter with return receipt requested to pertinent tribes providing sufficient notice of D.C.’s history to enable a tribe to determine whether D.C. qualifies for tribal membership, as required by 25 U.S.C. § 1912(a) (2000), the League faxed the Indian Child Welfare Act requests to the pertinent tribes. A copy of the fax is not included in the record.
Had the League strictly complied with the notice requirements of 25 U.S.C. § 1912(a), the nonaffiliation of D.C. could have been presumed if the notified tribes had failed to respond within 10 days (or 30 days upon the tribe’s request). See In re T.M., 245 Mich. App. 181, 187, 628 N.W.2d 570 (2001) (“If proper notice is provided and a tribe fails to either respond or intervene in the matter, the burden shifts to the parties . . . to show that [the Indian Child Welfare Act] still applies.”); In re Levi U., 78 Cal. App. 4th 191, 198, 92 Cal. Rptr. 2d 648 (2000) (“[T]he lack of any response from [the Bureau of Indian Affairs], and the absence of any communication sent to [the Butte County Children’s Services Division] by a tribe, were tantamount to determinations that the minor was not an ‘Indian child’ within the meaning of the Act.”).
The League’s social worker, Dana Ison, admitted that a non-Indian affidavit could have been used to comply with the Indian Child Welfare Act requirements for purposes of the Interstate Compact if the tribes failed to respond to a request in writing but that SRS refused to complete an affidavit in this case. The League concedes that it could have expedited the Indian Child Welfare Act request by mailing a 15-day letter to the tribes. Such a letter was mailed in July 2002. There is no indication why this letter could not have been mailed earlier so that the Arizona relatives’ Interstate Compact request could have been sent to Arizona in time for them to have been considered for adoption placement in October 2002.
The appellants contend this court should not consider the reasonableness of the failure of SRS and the League to timely request Indian Child Welfare Act information because the district court specifically determined that reasonable efforts had been made toward an adoption placement on September 24, 2002, after the initial delay in seeking information on D.C.’s Native American heritage. However, because the Arizona relatives were never given notice of the September 24th hearing, they cannot be precluded from using evidence prior to the September 24, 2002, hearing to argue that the agencies’ application of policies and procedures with respect to their adoption application was unreasonable. See Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988) (discussing the elements of res judicata and collateral estoppel).
Moreover, even if this court adopted the appellants’ arguments, deeming the district court’s September order controlling on the issue of reasonable efforts to that time, the appellants fail to justify further delays regarding the Interstate Compact process. Once SRS and the League received a response from the tribes, there was no attempt to initiate an Interstate Compact request to mitigate against the possibility that the placement with the Parsons aunt might fail. When the placement did fail to the extent that the Parsons aunt attempted suicide and D.C. was taken out of the Parsons aunt’s home and placed in foster care, SRS and the League still did nothing with respect to the Interstate Compact process. A month after the League determined that D.C.’s reintegration with the Parsons aunt was no longer feasible, the agency finally forwarded the Interstate Compact request to Arizona.
SRS and the League offered no reasonable explanation for this further delay. In fact, when social worker Dana Ison suggested using an expedited Interstate Compact process, the League’s adoption supervisor discouraged the suggestion, indicating that a regular Interstate Compact process had been started, even though the request had not yet been forwarded to Arizona.
The result of these delays was to permit the foster parents to form an attachment to D.C., which encouraged them to seek adoption in December 2002. More importantly, the delay permitted D.C. to develop emotional bonds with her foster family that might not have occurred if D.C. had been able to be moved to Arizona more quickly. Under these circumstances, we cannot fault the district court’s finding that SRS and the League failed to exercise reasonable efforts to ensure that the Arizona relatives’ adoption application was adequately considered in a timely manner.
Diligence in Informing of the Placement Process
As previously mentioned, the League failed to inform the Arizona relatives of any existing right to a review of the decision to terminate the Interstate Compact process. When the League finally received responses from the tribes, the agency failed to notify the Arizona relatives. The League did not notify the Arizona relatives of the initial placement hearing on September 24,2002. After the initial placement with the Parsons aunt failed, the League did not inform the Arizona relatives.
While SRS and the League are not solely responsible for maintaining contact with potential placement sources, the evidence in this case indicates the contact was heavily one-sided on the part of the Arizona relatives. Furthermore, the record reflects that the League contacted the Arizona relatives only grudgingly. During a case plan meeting following the Parsons aunt’s placement disruption, the League’s adoption supervisor is credited with stating, “KCSL will still have to go thru [sic] the motions with the Aunt in Arizona.”
We conclude substantial evidence exists in the record to support the district court’s finding that SRS and the League did not exercise reasonable efforts to keep the Arizona relatives adequately informed of the adoptive placement process.
Inconsistent Application of Evaluation Criteria
The appellants contend the district court cannot appropriately reweigh the facts relied upon to support the agency’s best interests analysis. We agree. However, reasonable efforts demand that an agency apply its policies and procedures, including the adoption placement evaluation criteria, consistently and fairly.
The district court’s finding that SRS and the League effectively excluded the Arizona relatives from meaningful consideration for adoptive placement of D.C. is adequately supported by the record. Contrary to the arguments of the League, as amicus curiae in this case, the district court’s determination does not challenge the policies and procedures adopted by SRS and the League to handle adoptive placements. Rather, the district court found the agencies failed to implement their policies and procedures equitably in an attempt to find the best possible placement for D.C. This is the purpose of the statutory “reasonable efforts” provision in K.S.A. 38-1584(d).
Court Ordered Placement
Finally, the appellants contend that, even if the district court properly found that SRS and the League failed to exercise reasonable efforts in finding an adoptive placement for D.C., the district court improperly exercised its authority in placing D.C. with the Arizona relatives.
“If die court determines that reasonable efforts or progress have not been made toward finding an adoptive placement or establishing an acceptable permanent guardianship or placement with a fit and willing relative, die court may rescind its orders and make other orders regarding custody and adoption that are appropriate under the circumstances.” (Emphasis added.) K.S.A. 38-1584(d).
Based upon the plain meaning of the statute, a district court is authorized to rescind its prior orders and to enter new orders regarding custody or adoptive placement once the court has determined that the agency responsible for finding suitable placement has not exercised reasonable efforts or progress in doing so. See In re J.D., 31 Kan. App. 2d at 665. The statute does not restrict the district court’s power to fashion a suitable order for the placement of the child, and this court does not read into statutes that which is not readily found therein. See GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
However, a district court’s discretion in effecting a child custody or placement determination is subject to the child’s best interests. The party challenging a district court’s determination bears the burden of demonstrating that no reasonable person would take the position adopted by the district court. See In re J.A., 30 Kan. App. 2d at 423.
Although a district court must consider the totality of the circumstances in determining what is in the best interests of a child, this court has previously enumerated a nonexhaustive list of factors for considering a placement decision:
“1. The child’s attachment to the parties;
“2. whether there has been any histoiy of sexual, physical, emotional, or substance abuse on the part of any family member;
“3. age and health of the parties;
“4. whether the child would have siblings close to his age;
“5. motivation of the parties for wanting to adopt;
“6. potential permanence of the relationship between the child and adopting parents;
“7. emotional needs of the child;
“8. parenting skills, strength, and weaknesses; and
“9. special needs of die child.” In re J.A., 30 Kan. App. 2d at 425-26.
The district court clearly considered each of the factors and indicated the court’s assessment of each factor as it pertained to the case. Ultimately, the district court found that the Arizona relatives and the foster parents would provide equally appropriate placements for D.C. and applied the relative preference to determine that D.C. should be placed with the Arizona relatives.
The district court did not abuse its discretion in determining the parties were equally appropriate placements, except that, in considering D.C.’s emotional attachments, the district court acknowledged a bond between the child and her foster family but discounted this factor as being unfair to the Arizona relatives who were never provided an opportunity to create such a bond with D.C. This analysis improperly directs the focus of inquiry upon the potential adoptive parents rather than upon the physical, mental, and emotional needs of the child.
In determining what is within the best interests of a child, the district court’s only concern should be the physical, mental, and emotional needs of the child and how a potential adoptive resource may address those needs. See In re A.F., 13 Kan. App. 2d 232, 235, 767 P.2d 846 (1989) (“Between two competing custodial parties with equal interests, the question of unfitness is not the standard; rather, the standard is the best interests of the child.”).
Because the district court discounted the acknowledged emotional bond D.C. shared with the foster parents, the case must be remanded for another best interests analysis. This is not to imply that simply because an emotional bond exists between D.C. and the foster parents, it is in D.C.’s best interests to be placed with the foster parents. The list of factors articulated in In re J.A. are not exclusive. However, the district court may not discount a potential factor indicating a placement in the best interests of D.C. because of considerations outside of the child’s best interests.
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Malone, J.:
Dana Mansaw appeals his conviction for possession of cocaine. Mansaw claims that the district court erred by denying his motion to suppress evidence. The evidence was seized incident to Mansaw’s arrest on a parole warrant which was later determined to be invalid. Mansaw also claims that the stipulated evidence was insufficient to sustain his conviction. Finally, Mansaw claims that the district court erred in denying his motion to dismiss based upon an alleged statutory speedy trial violation.
Facts and procedural background
Mansaw was initially convicted of attempted forgery in Wyandotte County, and on August 23, 2000, he was sentenced to 10 months in prison followed by 12 months’ postrelease supervision. Mansaw was placed on probation, which was later revoked for conditional violations other than a new conviction. As a result of this revocation, on October 21, 2001, Mansaw was ordered to serve the remainder of his original sentence including the postrelease supervision.
On May 13, 2002, Mansaw was released from prison on post-release supervision. He signed a certificate of release listing his address as 2606 North Fifth Street, Kansas City, Kansas. The certificate stated the conditions of release, including reporting and a consent by Mansaw to a search of his person, residence, and property by parole officers.
On May 20, 2002, a warrant was issued by the Secretary of Corrections pursuant to K.S.A. 2003 Supp. 75-5217, ordering Man-saw’s arrest for violations of the terms and conditions of his release. The warrant was issued “to any officer authorized by law to make arrests” and commanded that Mansaw be arrested, wherever found, and returned to the custody of the Kansas Department of Corrections (KDOC).
On June 5, 2002, two parole officers and a deputy U.S. Marshal arrested Mansaw at his residence based upon the warrant. Mansaw was searched, and a substance later determined to be cocaine was seized from his person.
Mansaw was charged with possession of cocaine in Wyandotte County District Court. He was arraigned on September 19, 2002, and trial was scheduled for December 2, 2002. At a status conference on November 26, 2002, the prosecutor announced he was ready for trial. Mansaw’s counsel indicated he had a conflict with the December 2 trial date. The court suggested that the case be tried later in the week, but defense counsel was unavailable the entire week. Defense counsel indicated he was available the following 2 weeks, but that conflicted with the court’s calendar. The court ordered a continuance based on the scheduling conflicts and set the trial for January 6, 2003.
Prior to trial, Mansaw filed a motion to suppress the evidence seized at the time of his arrest. At the hearing, Mansaw argued that pursuant to K.S.A. 2003 Supp. 22-3716(e), he should not have been placed on postrelease supervision upon his release from prison. Accordingly, Mansaw argued that his arrest warrant was invalid and that the search incident to the arrest was unlawful. Mansaw also filed a motion to dismiss, based upon an alleged statutory speedy trial violation. The district court denied both motions.
Mansaw decided to waive a jury trial and submitted his case to the court pursuant to a written stipulation of facts. Based upon the stipulated evidence, the district court found Mansaw guilty of pos session of cocaine in violation of K.S.A. 65-4160(a). Mansaw was sentenced to 30 months’ incarceration. He timely appeals.
Motion to suppress evidence
Mansaw argues the district court erred by denying his motion to suppress evidence. Specifically, he claims his placement in post-release supervision was an illegal sentence; thus, any violation of the terms of his postrelease supervision could not provide probable cause for a valid arrest warrant. Therefore, Mansaw claims the search of his person was not conducted incident to a lawful arrest.
The written stipulation of facts submitted by the parties did not indicate that Mansaw was preserving the objections raised in his suppression motion. Generally, when the district court has denied a motion to suppress evidence, the movant must object to the admission of that evidence at trial to preserve the issue for appeal. State v. Saenz, 271 Kan. 339, 349, 22 P.3d 151 (2001). In this case, however, the record reflects that the district court specifically advised Mansaw that he was not waiving his right to appeal the ruling on the suppression motion by agreeing to the trial upon stipulated facts. Accordingly, we find that Mansaw has properly preserved this issue for appeal.
When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district court’s decision are supported by substantial competent evidence. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001). When the facts material to a district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
Although the records of Mansaw’s forgery case are not included in the record on appeal, the State is not disputing the background leading up to Mansaw’s arrest. Mansaw was on probation following a conviction of attempted forgery. His probation was revoked for violating conditions of the probation other than for a conviction of a new offense. Pursuant to K.S.A. 2003 Supp. 22-3716(e), Mansaw should not have been required to serve the postrelease supervision term of his sentence upon his probation revocation. The State does not contest this conclusion on appeal. Apparently the statutory provision was not brought to the court’s attention at the time of the probation revocation, and the order remanding Mansaw to the custody of the KDOC included the postrelease supervision term as part of the sentence. Accordingly, when Mansaw became eligible for release on May 13, 2002, he was placed on postrelease supervision pursuant to the district court’s order.
In denying Mansaw’s motion to suppress evidence, the district court found that Mansaw’s placement on postrelease supervision was valid because the initial order had never been canceled. Thus, the district court concluded that Mansaw’s arrest warrant issued by the KDOC was lawful and upheld the search incident to the arrest.
We agree with the district court’s analysis. Mansaw could have successfully challenged the imposition of postrelease supervision by a motion to correct an illegal sentence or an action pursuant to K.S.A. 2003 Supp. 60-1507. However, as the district court noted, at the time of Mansaw’s arrest, there was still a valid court order imposing the obligation. The KDOC cannot ignore a district court’s order. Mansaw’s arrest warrant was properly issued pursuant to K.S.A. 2003 Supp. 75-5217, and the warrant remained active at the time of his arrest. A search incident to such an arrest does not become invalidated simply because the arrest warrant is subsequently subjected to a collateral attack.
The State also asks this court to uphold Mansaw’s search based upon the rationale of Michigan v. DeFillippo, 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979). In DeFillippo, an officer arrested DeFillippo for violating an ordinance and found illegal drugs on his person during a search. DeFillippo’s motion to suppress the seized evidence was denied. Upon interlocutoiy appeal, the state court held the ordinance that resulted in DeFillippo’s arrest was unconstitutional and concluded the arrest and search were invalid. The United States Supreme Court granted the State’s appeal. The Court held that the subsequent determination of the ordinance’s invalidity on constitutional grounds did not undermine the validity of the arrest for a violation of that ordinance. In determining that the evidence obtained in the search should not have been suppressed, the DeFillippo Court stated:
“Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality.—with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.” 443 U.S. at 38.
“The purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule.” 443 U.S. at 38 n.3.
Applying the rationale of DeFillippo, officers are charged to enforce arrest warrants. The issuance of an arrest warrant forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception of a warrant so grossly and flagrantly unconstitutional that any reasonable person would see its flaws. Society does not benefit by officers taking it upon themselves to determine whether an arrest warrant is or is not entitled to enforcement. The purpose of the exclusionary rule was not to deter police from enforcing a presumptively valid arrest warrant.
DeFillippo was followed by United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), which expressly provided a “good faith exception” to the exclusionary rule for evidence obtained in reasonable reliance on a defective search warrant. In Leon, the district court suppressed evidence seized from the execution of a search warrant after determining that the affidavit submitted to support the warrant application was insufficient to establish probable cause. On certiorari, the United States Supreme Court held that the exclusionary rule does not bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. 468 U.S. at 913-26. The Court relied upon policy rationale similar to the reasoning expressed in DeFillippo.
The Leon good faith exception has been adopted in Kansas. See State v. Doile, 244 Kan. 493, 501-03, 769 P.2d 666 (1989). Furthermore, the good faith exception for search warrants has been extended to arrest warrants by the United States Supreme Court in Arizona v. Evans, 514 U.S. 1, 131 L. Ed. 2d 34, 115 S. Ct. 1185 (1995).
In United States v. Gobey, 12 F.3d 964 (10th Cir. 1993), Gobey was arrested and searched by federal agents on a state arrest warrant. The arrest warrant was found to be invalid because it did not comport with Federal Rules of Criminal Procedure. See Fed. R. Crim. Proc. 4. However, the Tenth Circuit Court of Appeals determined that the agents acted in good faith in executing the warrant that was facially valid. In upholding the search, the court stated:
“For Agent Hislop to have determined that the warrant did not pass federal standards, he would have had to investigate and retrace the steps by which the warrant was issued. This process would have involved several complicated and time-consuming steps. Under the circumstances of this case we cannot say that it was unreasonable for him to rely on a facially valid state warrant without investigating its actual validity.” 12 F.3d at 968.
See also United States v. Mahoney, 712 F.2d 956, 960-62 (5th Cir. 1983) (Even if arrest warrant was invalid, exclusionary rule was inapplicable where actions of state law enforcement agents were taken in reasonable and good faith belief that they were legal.).
Here, the district court did not expressly apply a good faith analysis to the officers’ actions in arresting and searching Mansaw. However, we note that the evidence surrounding the search was essentially uncontroverted. The facts of this case are similar to the facts in Gobey. In arresting Mansaw, the officers were relying on a facially valid warrant. For the officers to have determined that the warrant was invalid, they would have had to investigate and retrace the steps by which the warrant was issued. This would impose an unreasonable requirement on the officers who were acting in good faith at the time of the arrest. We conclude that the good faith exception to the exclusionary rule provides an additional basis for upholding the search of Mansaw’s person after his' arrest.
Finally, Mansaw argues that the KDOC may have had actual knowledge that Mansaw’s postrelease supervision sentence was illegal. At the suppression hearing, the prosecutor speculated that the KDOC may have notified the district court by letter concerning the problem with Mansaw’s sentence. On appeal, Mansaw argues that due to the alleged letter, the KDOC cannot claim to have had a reasonable belief that Mansaw violated his postrelease supervision. Mansaw further argues that this knowledge was imputed to the parole officers who executed the arrest warrant.
There is no such letter for our review in the record on appeal. However, even if the letter existed, the fact remained that the KDOC was obligated to obey the district court’s sentencing order. The speculation about the existence of a letter from the KDOC to the district court does not change our analysis about the validity of tire arrest warrant or the application of the good faith exception to the exclusionary rule.
For all the reasons stated herein, we conclude that the district court did not err in denying Mansaw’s motion to suppress evidence.
Sufficiency of the evidence
After the district court denied Mansaw’s motion to suppress evidence, Mansaw decided to waive his right to a jury trial and to submit his case to the court based upon stipulated facts. Mansaw expressly took this action in order to preserve the suppression issues for appeal.
The parties submitted the following written stipulation of facts to the court:
“1. The testimony of Parole Officer Vic Harshbarger given to the court at the suppression hearing held on January 6, 2003, namely:
a. That on June 5, 2002, he, along with Parole Officer R.J. Cook and Deputy U.S. Marshal Steve Makurunis, went to 2606 North 5th Street, Kansas City, Kansas, to look for the defendant, for whom a parole warrant had been issued on May 20, 2002 (St. Exh. #1).
b. That relying on a Certificate of Release executed by the defendant (St. Exh. #2), the officers then entered the residence and detained an individual who matched the description of the defendant. This individual, who appeared to be sleeping, advised the officers that his name was ‘Mansaw’ when they inquired of him. He later gave a different name.
c. The defendant’s supervising parole officer, Christopher Langton, was summoned from the state parole office, in the 1100 block of North 5th Street, to identify the defendant. Upon Langton’s arrival he indeed positively identified the person in custody as Dana Mansaw.
d. Mansaw was then searched and the substance admitted at the suppression hearing as State’s Exhibit #3 was seized from his person.
“2. The substance contained in what was admitted at the suppression hearing as State’s Exhibit #3 is indeed cocaine, as evidence by the K.B.I. Laboratory Report attached hereto. Exhibit #3 remains in the custody of the seizing agency pending further order of this court.
“3. The location where the cocaine was seized from the defendant, 2606 North 5th Street, Kansas City, Kansas, is in Wyandotte County, Kansas.”
Based upon the stipulation of facts, the district court found Man-saw guilty of possession of cocaine. Prior to sentencing, Mansaw filed a motion for reconsideration, arguing that the stipulated facts were insufficient to show he intended to possess the cocaine. The district court denied the motion. Mansaw renews this argument on appeal.
When the sufficiency of‘the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, 610-11, 67 P.3d 121 (2003).
“Possession” is defined as “[h]aving control over a place or thing with knowledge of and the intent to have such control.” PIK Crim. 3d 53.00. Knowledge of and intent to control an illegal drug may be proven by circumstantial evidence. State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988).
Mansaw argues that criminal intent is an essential element of every crime. Here, the stipulated facts provide that Mansaw was searched and cocaine “was seized from his person.” Mansaw argues this evidence was insufficient to support his conviction because the stipulation failed to indicate “that Mansaw was aware” of the presence of the cocaine.
We disagree. Intentional conduct is conduct that is purposeful and willful and not accidental. K.S.A. 21-3201(b). Mansaw’s intent could be proved by circumstantial evidence and inferred from his actions. Ordinarily, a person intends all of the usual consequences of his or her voluntary acts. See State v. Acheson, 3 Kan. App. 2d 705, 710, 601 P.2d 375, rev. denied 227 Kan. 927 (1979). We are required to view the evidence in a light most favorable to the State. In the absence of any evidence that Mansaw’s possession of cocaine was accidental, we find that the stipulated evidence was sufficient to support Mansaw’s conviction for possession of cocaine.
Motion to dismiss
Finally, Mansaw argues that the district court erred in denying his motion to dismiss based upon a violation of Mansaw’s statutory speedy trial rights. The issue of whether a defendant’s statutory rights to a speedy trial have been violated is a matter of law over which an appellate court has unlimited review. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
Since Mansaw was in custody, he was entitled to a trial within 90 days of arraignment. K.S.A. 22-3402(1). Mansaw was arraigned on September 19, 2002, making his 90-day speedy trial deadline December 18, 2002.
Mansaw’s trial was initially scheduled for December 2, 2002. At a status conference on November 26, 2002, the prosecutor announced that he was ready to proceed to trial as scheduled. Man-saw’s counsel indicated he had a conflict with that date because of a trial scheduled in a different jurisdiction. The court suggested that the trial be commenced later in the week of December 2, but defense counsel was unavailable the entire week. Defense counsel indicated that he was available during the week of December 9 and December 16. However, the trial could not be scheduled during that time because of other trials scheduled on the court’s calendar. Accordingly, the court rescheduled the trial on January 6, 2003, when both attorneys indicated they would be available. This date was 109 days after Mansaw’s arraignment.
Although Mansaw’s counsel ultimately objected to the trial continuance, it was initially necessitated by a conflict in defense coun sel’s schedule. A trial continuance because defense counsel is either not ready or has conflicts in his or her calendar is appropriately charged against the defendant, not the State, for speedy trial purposes. State v. Hemby, 264 Kan. 542, 543-47, 957 P.2d 428 (1998); State v. Bean, 236 Kan. 389, 392, 691 P.2d 30 (1984). K.S.A. 22-3402(1) clearly provides for an extension of the speedy trial deadline when the delay is a result of the application or fault of the defendant.
Furthermore, the district court’s continuance falls squarely within K.S.A. 22-3402(3)(d), which states:
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
"(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
The phrase “not more than thirty (30) days” in K.S.A. 22-3402(3)(d) has been construed to mean “to a date not more than thirty days after the limit otherwise applicable.” State v. Coburn, 220 Kan. 750, 753, 556 P.2d 382 (1976).
Here, the record clearly establishes that the district court did not have sufficient time to commence Mansaw’s trial before the initial deadline because of other cases pending for trial. Accordingly, the court granted one continuance and still scheduled the trial within 30 days of the original speedy trial deadline. Mansaw’s trial ultimately commenced within the time limits set by statute.
Mansaw presented evidence that after the district court granted tire continuance, the trials which created conflicts with the court’s schedule and defense counsel’s schedule were ultimately settled. Thus, Mansaw argues that nothing prevented his trial from proceeding on December 2, 2002. He argues the district court or the State should have contacted him or his counsel and advised the trial could proceed as originally scheduled.
Mansaw’s argument would unreasonably require the court and the parties to keep jurors and witnesses available after a continuance was granted just in case schedules subsequently changed. Further, the record does not reflect that Mansaw’s counsel informed the district court on December 2, 2002, that he was available for trial that day. As such, it would have been reasonable for the district court to continue to assume he was unavailable.
Mansaw’s trial continuance was appropriate when initially granted. The fact that the district court’s calendar subsequently changed does not matter. Accordingly, the district court did not err in denying Mansaw’s motion to dismiss based upon the alleged statutoiy speedy trial violation.
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The opinion of the court was delivered by
Robb, J.:
On January 24,1956, plaintiff, as an employee of defendant and in pursuance of the provisions of the federal employers liability act (Title 45, U. S. C. A., 51 et seq.) had filed in the Labette district court his petition in an action for personal injuries. On May 11, 1957, this court, in a former appeal (Kinsch v. Missouri-Kansas-Texas Railroad Co., 181 Kan. 354, 310 P. 2d 903) reversed an order of the court below sustaining defendant’s motion to quash the service of summons. This appeal is from an order of the Labette district court overruling a motion by plaintiff to dismiss without prejudice the second cause of action contained in his petition, hereinafter briefly set out, and granting an application of defendant for an order of injunction from plaintiff’s prosecution of an identical cause of action in the Wyandotte district court.
In the first cause of action contained in the petition plaintiff sought to recover for serious back injuries sustained by him on February 5, 1953, while he was removing a cylinder assembly from one of defendant’s diesel engines. In the second cause of action he sought recovery for serious body dermatitis contracted by him while working on another diesel engine of defendant on November 23, 1953, as a result of being saturated with a rust resistant compound contained in water from the cooling system of the diesel.
On October 9,1956, plaintiff filed a petition in the Wyandotte district court wherein he alleged a cause of action identical with that contained in the second cause of action alleged in his petition filed in the Labette district court. On October 15, 1956, service was obtained on defendant in the Wyandotte district court.
On November 7, 1956, defendant moved to stay the Wyandotte county proceeding pending our determination of the previous appeal, which motion was sustained by that court on January 3, 1957. Then on July 13, 1957, defendant filed its motion in the Wyandotte district court to dismiss the action theré because the Labette district court had full jurisdiction. This motion was set for hearing on August 1, 1957, was continued to August 22, 1957, and further continued to September 9, 1957, after which date the record fails to show any action thereon.
On August 3, 1957, plaintiff filed a motion in the Labette county proceeding to dismiss his second cause of action without prejudice to the filing of a future action, and on August 5, 1957, in the same proceeding defendant filed its application seeking an order enjoining further prosecution of the Wyandotte proceeding by plaintiff. On September 5, 1957, these matters were heard and taken under advisement by the Labette district court. Its ruling entered on October 2, 1957, overruled plaintiff’s motion to dismiss his second cause of action and enjoined plaintiff and his attorney from proceeding in any manner and from any prosecution of the Wyan-dotte action until further order.
In arriving at the latter conclusion the court said, in substance, that to permit plaintiff to maintain and prosecute the Wyandotte county action would be to permit a multiplicity of actions contrary to proper procedure since plaintiff had previously selected the La-bette district court to determine the parties’ rights growing out of the allegations of the petitions filed in both counties.
As stated, plaintiff timely filed his notice of appeal from the order and judgment overruling his motion to dismiss his second cause of action and sustaining defendant’s application for an order of injunction. Hence this appeal, which presents two major questions regarding, first, plaintiff’s right to dismiss his second cause of action in Labette county and, second, defendant’s right to have plaintiff and his counsel enjoined from prosecuting the action in Wyandotte county under the existing facts and circumstances.
Plaintiff relies on G. S. 1949, 60-3105, which reads in part:
“An action may be dismissed without prejudice to a future action:
“First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court . .
and on G. S. 1949, 60-601 as follows:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both . .
with which defendant seems to have no quarrel, but there is a direct conflict between plaintiff and defendant when we come to the application thereof to our present case.
Plaintiff further relies on Bavuso v. Angwin, 166 Kan. 469, 201 P. 2d 1057. On August 4, 1947, the plaintiff therein commenced an action for damages in Kansas against two defendants in which, after preliminary motions, an amended petition was filed on Janu ary 15, 1948. On April 10, 1948, plaintiff filed an action arising out of the same facts in Jackson county, Missouri, and personal service was had on one of the defendants in Missouri. On April 15, 1948, plaintiff and his attorneys were temporarily restrained and enjoined from maintaining the Missouri action but plaintiff moved to dismiss the Kansas action, which motion was immediately allowed. Some time later the restraining order was dissolved because it had not been served on plaintiff before he filed and obtained a favorable ruling on his motion to dismiss. The questions in the Bavuso case while not identical with those here involved were resolvéd in the plaintiff’s favor and the trial court was affirmed. Plaintiff also cites earlier cases where the same statute (G. S. 1949, 60-3105) was applied. (Darnell v. Haines, 110 Kan. 363, 203 Pac. 712; Cott v. Baker, 112 Kan. 115, 210 Pac. 651; Henry v. Edde, 148 Kan. 70, 79 P. 2d 888.) In the Henry case (p. 73) the court in essence stated that under the common-law, as well as by statute, a plaintiff is entitled to control the disposition of his action, where the application is seasonably made and until the final submission of the cause.
On the other hand, defendant contends that plaintiff could not dismiss the second cause of action in Labette county and leave the first cause pending there, and further, that it was proper for the court to restrain the plaintiff and his attorney from prosecuting the Wyandotte action. We are not persuaded to follow defendant’s contention by the authorities it cites and relies upon as justification thereof. Plaintiff is not attempting to keep both actions pending based on the second cause in the Labette county action and the petition in the Wyandotte county action, as was the situation in Williams v. Payne, 150 Kan. 462, 94 P. 2d 341, where the plaintiff refused to dismiss either of two actions he had instituted. (See, also, Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945.) No element is here present similar to that in Gordon v. Munn, 81 Kan. 537, 106 Pac. 286, where the parties were able and had threatened to spend large sums of money to intimidate, oppress and annoy their opponent so as to induce and compel abandonment of rights and surrender of property. No question is here present of dissolution of partnership, of management of properties belonging thereto, or appointment of a receiver to take charge thereof, as was the case in Schaefer v. Milner, 156 Kan. 768, 137 P. 2d 156. We are not confronted with a proceeding in the settlement of a decedent’s estate (Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188; Herbel v. Nuss, 158 Kan. 376, 147 P. 2d 735; Searight v. Chor, 170 Kan. 271, 225 P. 2d 118; Hoard v. The Home State Bank, 176 Kan. 624, 272 P. 2d 1054) or do we have a case where a husband sues a wife for divorce in one county and she sues him in another county. (Schaeffer v. Schaeffer, 175 Kan. 629, 266 P. 2d 282.)
It is not disputed that plaintiff could dismiss his entire action in Labette county, and we believe that he could not be denied the absolute right to dismiss the second cause. He had the choice of abandoning his second cause of action or refiling it and he chose to refile it in Wyandotte county at a time when the Labette district court had sustained a motion to quash the service of summons on the defendant, which ruling had not yet been determined on appeal.
In Schaefer v. Milner, supra, this court quoted from Merritt v. American Steel Barge Co., 79 Fed. 228, 232, as follows:
“ ‘If the prior action does not deal either actually or potentially with specific property or objects, but is strictly a suit in personam, in which nothing more than a personal judgment is sought, no reason is perceived why a subsequent action may not be brought and maintained in another jurisdiction, although it involves the determination of the same issue or issues on which the right to recover in the first suit depends/ ” (p. 778.)
The foregoing rule sustains plaintiff’s contentions. While the trial court based its opinion squarely on the proposition that a multiplicity of actions would thereby be avoided, no authority has been presented nor have we found any to support that conclusion. From a practical standpoint, such an exception to the statute might be very laudable but we think that is a matter of legislative, not judicial, concern. It must be admitted that vexation, harassment, intimidation, fraud, oppression, etc., may take rights away from a plaintiff to control his lawsuit before final submission, but those elements fundamentally affect the proper administration of justice. In another case involving an action under the federal employers liability act (Missouri-K.-T. Rld. Co. v. Ball, 126 Kan. 745, 271 Pac. 313) in a Labette county proceeding, the defendant sought to enjoin the prosecution of an action by a deceased employee’s widow in Jasper county, Missouri, and on an appeal by the defendant this court said that an action may be enjoined where that is necessary to prevent hardship, oppression, or fraud, but it will not be enjoined merely on the ground of the convenience of the parties.
Other questions are presented by plaintiff but they are sufficiently answered by the determination of the two major issues already dis cussed, namely, that the trial court erred in refusing plaintiff the right to dismiss his second cause of action without prejudice and in restraining plaintiff and his counsel from prosecution of the action in the Wyandotte district court.
The judgment of the trial court is reversed with directions to dismiss the second cause of action without prejudice. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for personal injuries sustained in a collision of two automobiles at a blind rural intersection. Judgment was for plaintiff, and defendants have appealed.
There is really very little, if any, dispute as to the facts. Briefly summarized, they are as follow:
At about 9:30 on the morning of July 29,1954, plaintiff, who lived with her husband and children on a farm northwest of Winchester, in Jefferson County, started out for Atchison in her husband's automobile. The children were with her. The day was bright and clear and the gravel road was dry.
At about this time defendant Pence, a farmer living not far from plaintiff’s home, was having trouble with his plow and decided to go in to Winchester for repairs or something. He borrowed the automobile owned by his father-in-law, defendant Moon, and started out.
Unfortunately, their routes of travel, the distances involved, their respective speeds, and the element of time, coincided to bring their cars together in the intersection in question.
Both plaintiff and defendant Pence lived near the intersection, and both were familiar with it. Plaintiff approached it from the west on a gravelled township road. She had been driving about 30 miles per hour, but as she neared the intersection she slowed to 15 miles per hour. She looked to the south and saw nothing. When about 10 feet from the west edge of the intersection she could see 50 or 60 feet north, but saw nothing. As she entered the intersection she continued to look north and saw Pence’s car approaching from the north about 100 to 125 feet distant. She continued to go on through. At the time in question Pence was travelling about 35 miles per hour and first saw plaintiff’s car when he was 60 or 70 feet north of the intersection. He applied his brakes and skidded on the gravel road until his car hit the left rear of plaintiff’s car. When they came to rest plaintiff’s car was on the south side of the east-west road facing west, and Pence’s car was on the east side of the north-south road facing north. Plaintiff was thrown from her car and suffered severe back injuries, and was taken to the hospital at Leavenworth.
Plaintiff filed this action seeking damages in the amount of $40,000 to compensate her for her medical and hospital bills, pain and suffering, and permanent injuries. Her petition contained the usual allegations of negligence on the part of defendant Pence, such as driving at a high and dangerous rate of speed, failure to yield the right of way, failure to reduce his speed after he saw, or should have seen, plaintiff’s car, and so forth.
With respect to defendant Moon, the owner of the car being driven by Pence, it was alleged that at the time in question Pence was acting as the agent, servant and employee of Moon, and was acting in furtherance of his, Moon’s, business.
The separate answer of defendant Pence denied negligence on his part, and alleged the usual grounds of contributory negligence on the part of plaintiff.
The separate answer of defendant Moon denied that at the time and place in question Pence was acting as his agent, servant and employee, and charged plaintiff with the usual acts of contributory negligence. In his cross-petition defendant Moon alleged that as a direct result of the acts of negligence on the part of plaintiff his automobile was damaged in the sum of $575, and he sought recovery of that amount.
Upon the issues thus framed the parties proceeded to trial before a jury. During the course thereof plaintiff dismissed as to defendant Moon and the court sustained plaintiff’s demurrer to Moon’s evidence in support of his cross-petition.
The jury returned a general verdict for plaintiff against defendant Pence in the amount of $29,458, and answered special questions as follow:
“1. What do you find the speed of the plaintiff Evelyn Domann to be at the time she entered the intersection? 15.
“2. Do you find that this was a blind intersection? Yes.
“3. Do you find the defendant Pence guilty of negligence? Yes.
“4. If your answer to No. 3 is ‘yes,’ state such act or acts? The defendant, Charles Pence, was driving at excessive speed, due to existing conditions, to maintain proper control of his car. The above defendant also failed to yield right of way.
“5. Do you find the plaintiff guilty of contributory negligence? No.
“6. If your answer to No. 5 is ‘yes/ state what it was. . . .
“7. Who do you find entered the intersection first? The plaintiff, Evelyn Domann.
“8. Did plaintiff see defendant Pence prior to the accident? Yes.
“9. If your answer to No. 8 is ‘yes,’ state position, in relation to the intersection, of plaintiff’s car when she first saw defendant Pence? The plaintiff’s car was entering the intersection when she saw the defendant’s car.”
All post-trial motions, including a motion for a new trial, were overruled, and judgment was entered on the verdict. Both defendants have appealed, and thirteen specifications of error are urged.
■ At this point we pause for a moment to mention a matter which has nothing whatever to do with the decision in this case, but which does have a bearing on the preparation of the opinion. We have reference to the perennial problem of “brevity in judicial opinions,” a problem common to all appellate courts. Our statutes (G. S. 1949, 20-112, 60-3328, 20-111 and 60-3329) merely provide that the opinion of this court in a given case shall be reduced to writing and that the syllabus thereof shall contain a brief statement in writing of the points decided in the case. Inquiries often are made by lawyers as to the reason for such long opinions in cases of this type involving negligence, proximate cause, rules of the road, and so forth, in which the rules of law are so well established, and particularly when the appeal results in an affirmance of the judgment. We realize that an opinion in the nature of “record examined and no error found” is unfair to an appellant who earnestly believes he has a meritorious appeal, but at the same time we also realize fully that many opinions could be greatly reduced in length without impairing their value, and that many contribute very little, if anything, to the body of the law, especially in those instances in which the legal principles are well settled. All will agree, we believe, that the instant case is of the type which falls within that category.
Keeping the thoughts just expressed in mind, we will attempt to dispose of this case on that basis — and at the same time not “sacrifice clarity for brevity,” but in doing so, assure defendant appellants that each of their contentions has been given careful consideration.
It is argued that defendant Pence’s demurrer to plaintiffs evidence should have been sustained on the ground it showed plaintiff to be guilty of contributory negligence as a matter of law, thus barring her recovery. We will not repeat the evidence. This contention, under well-established rules, is without merit.
It is argued the court erred in the admission of evidence. We have examined the evidence, and this contention likewise is without merit. Of a certainty, no prejudicial testimony was admitted, and neither does it appear the court erred in the exclusion of evidence.
With respect to defendant Moon, the court did not err. Plaintiff dismissed as to him, which she had a right to do, and his right to recover on his cross-petition for damage to his car fell with his failure to establish actionable negligence on her part.
It is contended the court erred in refusing to submit certain special questions. Substantially, those requested were submitted, and they covered the issues to be decided between plaintiff and defendant Pence.
Next, it is contended the court erred in refusing certain requested instructions, and in giving some that it did. This argument apparently revolves around the proposition that this case is controlled by Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084 (reaffirmed in McPherson v. Leichhardt, 181 Kan. 330, 310 P. 2d 941). The trial court was of the opinion this was not a “Green v. Higbee case,” in which it was held that a demurrer was properly sustained to the plaintiff’s evidence which showed that plaintiff had entered a blind rural intersection at a speed of approximately 40 or 45 miles per hour. We agree. An examination of the instructions given establishes that the jury was fully and properly instructed on all material questions presented by the evidence.
It is argued the court erred in refusing to set aside the answers to special questions 3, 4 and 5, because they are unsupported by and are contrary to the evidence. We find no merit in this contention.
Next, it is contended the court should have entered judgment for defendant Pence on the special findings. This likewise is without merit. The answers were consistent with each other and also with the general verdict.
And, finally, the remaining specifications of error are that the court erred in denying the motion for a new trial, in entering judgment on the verdict, and in denying Pence’s motion for reconsideration of the ruling on the motion for a new trial.
With respect to these last-mentioned rulings a number of contentions are made, but in the main they are based upon alleged misconduct of the jury in arriving at the verdict, and the claim that the verdict is excessive.
We will discuss both of these matters briefly.
After having tried the issues between the litigants, defendant Pence, at the hearing on the motion for a new trial, attempted to “try the jury.” In this connection he offered the affidavits and testimony of several of the jurors to the effect that the possibility or probability of his being covered by liability insurance was discussed in the jury room. None went so far as to say the discussion in any way influenced the verdict or the amount thereof. It is conceded that the subject of “insurance” was not mentioned by anyone during the course of the trial. The trial judge ruled there was no affirmative showing that the substantial rights of defendant had been in any way prejudiced by such alleged misconduct. We are compelled to agree. On the general subject see Williams v. City of Parsons, 87 Kan. 649, 652, 125 Pac. 60; Anderson v. Thompson, 137 Kan. 754, 758, 22 P. 2d 438; Newell v. City Ice Co., 140 Kan. 110, 113, 34 P. 2d 558; Bohannon v. Peoples Taxicab Co., 145 Kan. 86, 88, 64 P. 2d 1; Pulkrabek v. Lampe, 179 Kan. 204, 293 P. 2d 998, 54 A. L. R. 2d 732, and Randle v. Kansas Turnpike Authority, 181 Kan. 416, 419, 420, 312 P. 2d 235. The facts before us are readily distinguishable from those in Bryant v. Marshall, 135 Kan. 348, 10 P. 2d 868, relied on by defendant.
With respect to the contention the verdict in the amount of $29,458 is excessive, we do not propose to detail the evidence as to plaintiff’s injuries. It is sufficient to say that she was thirty-four years of age. She sustained severe, painful and permanent injuries, particularly to her back. She spent many days in the hospital and approximately $3,300 for medical care. A part of her lower backbone was removed and four lower vertebrae of her spine did not properly fuse. The testimony of expert orthopedists was to the effect her permanent disability is from twenty-five to thirty-five per cent, and that her condition will grow progressively worse with age.
As was said and held in Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P. 2d 605, there is of course no uniformity in our decisions on the proposition of when damages allowed in a personal injury action are excessive for the simple reason determination of the question necessarily depends upon the facts and circumstances of each particular case as it is presented for review. To like effect is Smith v. Wichita Transportation Corp., 179 Kan. 8, 293 P. 2d 242. No verdict is right which more than compensates — and none is right which fails to compensate. (Union Pac. Ry. Co. v. Milliken, 8 Kan. 647, 655.) Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. All things considered, we are unable to say from the record before us that this verdict is excessive.
A careful examination of the entire record in this case discloses nothing approaching reversible error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to partition real estate in equal shares among living children of a deceased testate father, and to set aside a deed executed and delivered by the widow of such decedent, during her lifetime, to the defendant Lawrence Lowder-milk, also a child of the father, on grounds that instrument was wholly void as being without consideration and executed at a time when the grantor had no legal right to convey the property therein described. The defendant Lawrence Lowdermilk appeals from the judgment setting aside the deed in question and decreeing partition of all real estate involved in the action in equal shares among the living children of the deceased father.
In passing it should be stated that Alma Lowdermilk, one of the living children, was also a party defendant but took no appeal from the judgment. On that account, and in the interest of brevity, all subsequent mention to the defendant and/or appellant will have reference to Lawrence.
A historical review of the facts giving rise to this controversy and a résumé of the events and proceedings following commencement of the action are essential to a proper understanding of the issues involved in the case. For that reason those matters will be outlined as briefly as the state of the long and confusing record presented permits.
Leander Lowdermilk, a resident of Mitchell County and the owner of 280 acres of land, located in such county, died on November 18, 1933, leaving a last will and testament. Such will was admitted to probate and final settlement of the decedent’s estate was made in the probate court of Mitchell County in accord with the terms of that instrument, the pertinent portions of which read:
“First — And after all my lawful debts have been paid and discharged, I give and bequeath unto my beloved wife Louetty [Louetta] Lowdermilk, all my property both real and personal, she to have all rents and profits arising and accruing therefrom, during her life time, giving to her the right to rent, mortgage, deed or convey as she deems necessary for her support and main-tainance, and after her .death if any property remains, I give and bequeath the residue of my property both real and personal to my beloved children, Leila Whittley, Jason E. Lowdermilk, Maude Sowers, Pearl Worley, Carson Lowdermilk, Lester Lowdermilk, Roy Lowdermilk, Lawrence Lowdermilk, Laura Lowdermilk and Alma Lowdermilk, share and share alike.”
At the time of his father’s death the defendant was living with Leander and Louetta and farming a part of the family land. Thereafter, and for several years, he continued to live in the home and farm all the land.
On February 16, 1943, Louetta deeded Lawrence, without any reservations, eighty acres of land left by Leander. The family home was located on this tract and the deed specifically recited that it was executed in consideration of the sum of $1.00. Lawrence recorded this deed on September 9, 1943.
Later, and on October 7, 1946, in an obvious attempt to show consideration for the foregoing transaction, Lawrence and Louetta executed a written agreement reciting consideration of the deed was that (1) Lawrence should look after and take care of Louetta so long as she should live; (2) that she should be entitled to receive in her own right and for herself all the rents and profits of the land so long as she should live; (3) that she should be permitted to use said premises for her home so long as she should live; and (4) that Lawrence waived any and all right, title and interest in and to any rights of inheritance in the remaining lands and property, both real, personal and mixed of Louetta and Leander, deceased. Such contract was filed for record by Lawrence on November 3, 1946.
Lawrence was married on the date last above mentioned. After his marriage he moved from the home and no longer lived with his mother. However, he continued to farm the entire 280 acres, retained his holdings in the livestock, in most of which he had a two-thirds interest, and was at the home place in the evenings and mornings to do chores and at noon when he was farming.
Louetta took sick on March 4, 1952. Thereafter she stayed at Lawrence’s home for four days and was then taken to the hospital where she remained for a couple of weeks. Upon leaving the hospital she was taken to the home of her daughter, Laura. Later she was moved to a nursing home in Beloit. In March, 1954, she again returned to the hospital. During this stay at the hospital she was declared incompetent and Tweed W. Ross, an attorney of Beloit, was appointed her guardian, and thereafter he paid all the bills for her care. At the time of his appointment she had over $1,400 in the bank and $1,700 worth of cattle. Upon leaving the hospital the second time Louetta was placed in a nursing home at Cawker City, remaining there, or in some other nursing home, until she died on March 1, 1956.
Plaintiffs commenced this action on May 23, 1956. Their petition is not abstracted, hence we assume it contained two causes of action, one to set aside the deed and the other to partition all real estate involved. Defendant then moved to separately state and number the several causes of action. Again, because of failure to abstract the motion, we assume it was premised on the theory plaintiffs had pleaded two causes of action in one for setting aside the deed. In compliance with an order sustaining the motion plaintiffs filed an amended petition purporting to contain three causes of action.
In the first cause of action plaintiffs described the 280 acres of real estate owned by Leander on the date of his death; allege that under the terms of his will such decedent gave Louetta a life estate in that real estate with remainder to his children; and assert that such children owned an undivided one-tenth interest in such property and that it was susceptible of being partitioned.
In the second cause of action plaintiffs recite the conditions and circumstances under which the deed to the eighty acres of real estate, heretofore mentioned, was executed and delivered to Lawrence by Louetta; assert that such deed was wholly without consideration and that she had no right to convey the property therein described; aver that such deed was void and should be vacated and set aside; and allege that at the time of the execution thereof she had ample funds in her name and in her possession to take care of her and was not in need.
In the third cause of action plaintiffs assert that after execution of the deed, and as a purported consideration for the same, defendant entered into the agreement, to which reference has been heretofore made, with Louetta, whereby he agreed to look after and take care of her as long as she should live; allege that defendant never cared for his mother either before or after the execution of the deed; and charge that after execution of the agreement he wholly failed and neglected to care for her during the rest of her life or to carry out the terms and conditions of that instrument.
Defendant filed a long and complicated answer and cross-petition to the petition. Highly summarized it may be stated the first portion of the answer, directed at the first cause of action, admits the will in question and that it was fully probated but denies that any of the living children of such testator, other than defendant, have any right, title or interest in the eighty acre tract in question. The second, directed at the second cause of action, alleges execution and delivery of the deed in question; asserts that after the death of Leander defendant stayed with and cared for his mother; avers that at the time of and ever since its execution such deed has been a valid and subsisting deed for such property; charges such cause of action is stale, barred by laches and by the statute of limitations; and alleges that to uphold plaintiffs’ contentions and partition such tract of real estate would be inequitable since plaintiffs have not done equity or tendered compensation for the years of service performed by defendant. The third, directed at the third cause of action, alleges that the agreement in question was without consideration and ambiguous but even if found to be valid was substantially complied with by the defendant and should be enforced; and charges that such cause of action is barred by laches and the statute of limitations.
In his cross-petition defendant makes all allegations of his answer a part thereof, alleges that he is the owner of the eighty acre tract in question/and asserts that his title therein should be quieted as against all adverse parties to the action.
In their reply and answer to the answer and cross-petition plaintifFs join issue on all questions and claims made by defendant in his answer and deny generally the allegations of his cross-petition.
With pleadings as heretofore related the cause came oh for trial by the court. Plaintiffs then adduced their evidence and rested. Thereupon defendant orally moved to require plaintiffs to elect as between their causes of action two and three. Defendant also demurred to plaintiffs’ evidence on the ground it failed to show facts sufficient to constitute a cause of action. Upon the overruling of the motion and the demurrer defendant adduced his evidence and rested. Plaintiffs then announced they did not desire to offer any rebuttal testimony. Whereupon the parties were given time in which to file requested findings of fact and conclusions of law. Following submission of such requests the trial court made its own findings of fact and conclusions of law which were subsequently amended in particulars which cannot be said to have complied with objections made to the original findings and conclusions. Defendant then filed a motion for a new trial which was overruled. Thereafter judgment was rendered, in accord with the amended findings and conclusions, setting aside the deed to the eighty acres and decreeing partition of all real esate involved in the action as prayed for in the petition. This appeal followed.
Appellant’s first contention is that the second and third causes of action, set forth in the amended petition, are inconsistent and that the trial court erred in overruling his motion to require ap-pellees to elect as to which of such causes of action they were relying upon as grounds for setting aside the deed. In support of his position on this point he relies upon our decisions (see, e. g., Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P. 2d 150; Davidson v. McKown, 157 Kan. 217, 139 P. 2d 421; Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 157 P. 2d 805), holding that under the doctrine of election of remedies, a plaintiff who comes into court with a petition containing causes of action based upon inconsistent theories may be required to elect upon which one of the inconsistent positions so asserted by him he relied on as a basis for the relief he seeks to obtain. We have no quarrel with the rule of such decisions. Where asserted remedies are inconsistent they have application. However, it must be remembered that election goes not to the form, but to the essence of the remedy. (Sweet v. Bank, 69 Kan. 641, 643, 77 Pac. 538; Ireland v. Waymire, 107 Kan. 384, 386, 191 Pac. 304; Taylor v. Robertson Petroleum Co., supra, Syl. ¶¶ 3, 4, 5, and page 827.) Here, assuming the trial court’s action in requiring appellees to separately state and number what now appears in the amended petition as cause of action number three was proper, which we doubt, it is clear from a careful analysis of the amended petition, appellees are relying upon a single claim for relief under the allegations of causes of action Nos. two and three. Such claim is that, under the existing facts and circumstances, Louetta had no legal right to convey the home place to appellant as a gift and the deed purporting to convey such property to him was void and should be set aside, notwithstanding and irrespective of the terms and provisions of the subsequent agreement, executed by appellant and Louetta some three years after the date and delivery of the deed. Under such circumstances it cannot be successfully argued that causes of action two and three are predicated upon inconsistent theories or positions and the doctrine of election of remedies has no application.
The second claim of error advanced is that the trial court erred in overruling appellant’s separate demurrers to appellees’ evidence as to each cause of action.
An approach to this question calls for consideration of the provisions of the pertinent portions of Leander’s will as heretofore quoted. With respect to Louetta those provisions are so definite and certain as to require little if any construction. In our opinion they mean exactly what they say, i. e., that she was given a life estate in all the involved real estate with limited power of disposition to rent, mortgage, deed or convey as she deemed necessary for her support and maintenance. Assuming some ambiguity exists in the devise to the children provisions relating thereto must be construed as meaning that the remainder was devised to them in fee, subject to defeasance by exercise of the limited power of dis posal. We have so held in cases where similar testamentary provisions were involved. See Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276, where it is held:
“Where a joint and contractual will provided that upon the death of either spouse therein, any and all property left by the deceased should come into the possession and be the sole and absolute property of the surviving spouse, however giving to the surviving spouse the right to sell any of the property upon his or her wish or desire, with remainder over to the children, held, that such devise vested in the surviving testator a life estate with the added power to sell any portion thereof, remainder to the children.” (Syl. ¶ 3.)
And in the opinion said:
“The fact that a testator who devises or bequeaths property to one for life, the remainder to another, gives the life tenant a power to dispose of the property, so that there is a possibility, undetermined until the termination of the life estate, that the property will not in fact be available to the remainderman, does not make the remainder contingent, but leaves it vested, subject to defeasance by the exercise of the power.” (p. 358.)
For other decisions of like import see, e. g., Buxton v. Noble, 146 Kan. 671, 73 P. 2d 43; Tretbar v. Aged Ministers Home, 180 Kan. 18, 21, 299 P. 2d 58.
With the will construed as above indicated we have no difficulty in concluding that Louetta had no legal right to make an outright gift of all or any part of the involved real estate and that as against the remainderman any deed executed by her for that purpose would be wholly void. A review of the record discloses evidence by ap-pellees to the effect the deed to Lawrence for the eighty acres in controversy was executed and delivered for that purpose. In the face of that evidence it cannot be successfully argued appellees’ evidence failed to show facts sufficient to constitute a cause of action for setting aside the deed and partition of all real estate involved, including the eighty acre tract. In that situation, and under the circumstances heretofore mentioned with respect to the state of the pleadings, the trial court’s action in overruling appellant’s demurrers to the evidence adduced in support of appellees’ three causes of action as pleaded was proper and must be upheld.
Heretofore we have indicated the all decisive issue involved in this lawsuit is whether Louetta executed and delivered the deed to the eighty acre tract as a gift or for purposes deemed by her to be necessary for her support and maintenance and held that such deed would be void if made as a gift conveyance. We therefore turn to the record for evidence pertaining to that question. There was, as we have previously stated, evidence in appellees’ case in chief, which we pause here to note was not objected to in the court below and is not here in question, to the effect Louetta had given Lawrence the eighty acres. In addition there was testimony which, if believed, would warrant a conclusion he had never cared for his mother either before or after the execution of the deed, also evidence that at the time of the execution of that instrument she was not in need of or short of funds. In fact one of the sons testified that on January 5,1943, a little more than a month prior to the execution of the deed, he had paid a note to his mother with interest, amounting to $1,442. This witness, as well as others, testified that at or about that time Louetta also had cattle, pigs and chickens of her own, as well as a third interest in some, if not all, of the cattle owned by appellant. Several witnesses testified that Louetta gave appellant a notice to get off the place in 1947. More than that, ap-pellees introduced the contract, executed some three years after the deed was executed, in evidence. It may be stated this instrument, although purporting to establish consideration for the deed was that Lawrence would look after Louetta so long as she should live, contained other provisions supporting a conclusion that the delayed explanation as to consideration for the deed was in reality an afterthought and what the parties actually had in mind and were trying to do was to divide up the real estate left by Leander among the children contrary to the terms and provisions of his will. So much for appellees’ evidence on the point now under consideration.
Strange as it may seem, a thorough examination of the testimony of appellant’s witnesses, one of whom was the scrivener of the deed and another the appellant himself, fails to disclose any evidence to the effect appellant paid or agreed to pay any consideration whatsoever for the eighty acres. Indeed, it should be stated, the only evidence of record which, in any way, tends to refute appellees’ evidence is the deed reciting a consideration of $1.00 and recitals in the contract to which we have previously referred.
Faced with evidence such as has been heretofore related the trial court made extensive findings of fact which, as we interpret them, must be construed as containing over-all findings to the effect the deed was executed and delivered by Louetta for the purpose of consummating a gift to appellant of the real estate therein described.
The essence of all contentions advanced with respect to findings of the character just mentioned is that they are not supported by evidence. No rule is better established in this jurisdiction than the one that, when supported by competent evidence, a trial court's findings of fact will not be disturbed on appellate review even though the record discloses some evidence which, if such court had seen fit to believe it, might have warranted the making of findings to the contrary. For numerous decisions where this rule is recognized and applied see Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, §§ 507, 508; West’s Kansas Digest, Appeal & Error, §§ 1010[1], 1011[1]. ‘
From our extended examination of the record we have no difficulty in concluding the evidence previously mentioned is sufficient to support the findings heretofore made by the trial court. Therefore, under the rule to which we have just referred, such findings must be accepted and cannot be disturbed.
Based on the foregoing findings the trial court concluded, among other things, that as a matter of law Louetta was not empowered to deed or convey the real estate in question as a gift; that appellant had no rights under the deed; that such deed was of no effect and should be set aside; and that appellees were entitled to partition as prayed for in their petition. It then rendered judgment accordingly. In view of the findings respecting die factual issues governing a decision of what we have held to be the decisive appellate issue involved we are convinced the foregoing conclusions of law were proper and that the trial court did not err in its judgment.
In conclusion it should be stated that in the face of the record presented this case has already received more attention in this opinion than its merits deserve. For that reason, several claims of error advanced by appellant have not been mentioned or discussed. It suffices to say that after giving all such claims careful consideration the court has concluded none of them permits or warrants a reversal of this judgment or the granting of the motion for a new trial.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from an order overruling a demurrer to the petition.
The plaintiffs are the surviving spouse and five minor children of Alice Kimberly, deceased, and seek to recover damages for her wrongful death. The petition states the subject matter of the action to be:
“That on the 10th day of February, 1957, the defendant performed an operation upon Alice Kimberly, with the intent and for the purpose of causing an abortion or miscarriage by the said Alice Kimberly, although it was not necessary to preserve her life, neither had it been advised by a physician as necessary for that purpose.
"That the defendant was a veterinarian, and in performing the operation on Alice Kimberly used a veterinary’s instrument known as a milk tube, and used said instrument in the performance of the operation in such a grossly careless, wanton, negligent and unskillful manner as to puncture, rupture, lacerate and tear her placenta, thereby causing an embolism to be formed, which in a short time after the performance of the operation caused the death of the said Alice Kimberly.
“That the sole and proximate cause of the death of the said Alice Kimberly was the grossly careless, wanton, negligent and unskillful manner in which the defendant performed the operation as hereinbefore stated.”
The parties agree that the sole question presented is whether, had Alice Kimberly lived, she could have maintained the action against the defendant. The defendant contends that unless some special circumstance intervened, such as deceit or minority, no recovery may be had for injury or death of a woman who submits to an abortion; that plaintiffs’ decedent, a mature married woman, was guilty of moral turpitude and participated in the violation of a general anti-abortion statute (G. S. 1949, 21-437) enacted to effectuate a public policy; that at common law, consent to an illegal act foreclosed all remedy to the participant against one injuring him, and that plaintiffs have no greater right to maintain the action than their decedent would have had. This question was disposed of adversely to the defendant’s contention by this court in Joy v. Brown, 173 Kan. 833, 252 P. 2d 889, where, in the course of the opinion, it was said:
“. . . We are of the opinion that no person may lawfully and validly consent to any act the very purpose of which is to destroy human life. We shall not dwell on the thought that such consent as was given preceded any act of the appellee to perform the illegal operation, and at most was no consent to the doing of the act in the manner alleged in the petition. We have no hesitancy in holding that had Joy M. Joy survived she could have maintained an action for any damage she may have sustained, and that a result fatal to her having occurred, her next of Icin may maintain an action for her wrongful death.” (l. c. 839, 840.)
The fact that the abortion statute is criminal in character and the state may redress the wrong to society by a criminal prosecution against the person who performs the unlawful act, does not mean that a woman upon whom the abortion is negligently performed, or her heirs, or next of kin, is without remedy. The wrongful death statute (G. S. 1949, 60-3203) was enacted to inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin (Shuffelberger v. Hopkins, 177 Kan. 513, 280 P. 2d 933), and is for their protection when wronged by a proximate negligent act killing their decedent. Their right of action against the defendant should not be denied because their decedent unlawfully consented to the abortion. (Joy v. Brown, supra, pp. 839, 840.)
As in any other action, the burden rests upon the plaintiffs to prove the negligence alleged as constituting the proximate cause of the wrongful death. If they sustain that burden, the cause of action, which inures to them, is not barred simply because the criminal law makes the defendant punishable for his performing the abortion. (Joy v. Brown, supra.) The defendant remains civilly liable for damages for negligence which was the proximate cause of death.
The defendant directs our attention to cases cited in the annotation in 21 A. L. R. 2d 369, and particularly stresses Miller v. Bennett, 190 Va. 162, 56 S. E. 2d 217, 21 A. L. R. 2d 364. A review of these authorities will not here be made since they were carefully considered by this court in Joy v. Brown, supra, reference being made to that opinion. The simple import of defendant’s contention is that the Joy case be overruled. No sound reason has been advanced to overthrow that decision, and we adhere to its holding.
The trial court did not err in overruling defendant’s demurrer, and its order is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
Plaintiff appeals from an order of the trial court sustaining defendant’s demurrer to his amended petition.
This case was previously considered by the court in Harris v. City of Topeka, 180 Kan. 758, 308 P. 2d 88, an appeal from the trial court’s order sustaining a motion to strike portions of plaintiff’s original petition and granting leave to amend. Plaintiff resultingly filed his amended petition, which will be hereinafter referred to as the petition except where clarity demands it be denominated the amended petition. The allegations thereof were fully set out in the previous opinion. Here we will quote those parts necessary to determine the correctness of the trial court’s order sustaining the demurrer and will only summarize other parts.
The petition alleged that on November 8, 1955, a claim for overtime wages or salary was filed with the defendant, under G. S. 1949, 12-105, as amended (G. S. 1957 Supp. 12-105) and that claim was denied; from April 1,' 1950, to October 5, 1955, the date of discharge, plaintiff was a continuous full time employee of defendant; the amount of the overtime itemized into five day work weeks during the period of his employment was shown although the overtime had been indicated in the original petition in six items covering several months in each item.
In place of a short phrase that had appeared in the original petition reading,
“that said services consisted in part of boiler tending at defendant’s plant
the amended petition included a more detailed allegation as to plaintiff’s services (new part italicized) as follows:
“That said overtime labor and services were performed at the oral request of the defendant; that said services consisted of boiler tending at defendant’s plant and generally caring for defendant’s plant; said boiler tending and care of the plant included but was not limited to the care of the asphalt or mixing plant, checking the boiler equipment, observing and checking the steam pipes, water gauges, supplying coal to the boiler to keep up the steam in the boiler; observing and checking the boiler flues and keeping them clean, observing, checking and cleaning the firebox and furnace and the responsibility of seeing that no damage came to the property of the city by the actions of anyone or the negligent or inefficient operation of the boilers, including two asphalt boilers; that the reasonable value of plaintiff’s overtime labor and services, as aforesaid, is $1.25 per hour; that defendant is indebted to plaintiff in the sum of $4,211.25 for overtime labor and services performed for the defendant at the special instance and request of the defendant.”
Finally, it was alleged that plaintiff had made numerous demands upon defendant for overtime services or labor but it had refused to pay such demands. The total amount of $4,211.25 for overtime services and labor was alleged although the amount previously alleged to be due was $2,771.25.
Defendant’s general demurrer to this petition was sustained by the trial court and plaintiff appeals from such order wherein the trial court stated:
“. . . the demurrer to the Amended Petition filed by the plaintiff in the above entitled action should be sustained upon the grounds that the Amended Petition does not state facts sufficient to constitute a cause of action for the reason that the plaintiff is estopped by his own conduct from claiming any further wages from the defendant.”
Plaintiff’s petition, in substance, alleged that he was filing a claim, as amended, under G. S. 1949,12-105 which, in part, provides:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto . . .,”
and he is bound by the terms thereof which have been interpreted not to apply to actions in quantum, meruit. Notwithstanding this he relies on Ritchie v. City of Wichita, 99 Kan. 663, 666, 163 Pac. 176, which involved a paving contract. That action was based upon the theory of quantum meruit for the work actually done under the contract. No compliance with the claim statute was apparent in the Ritchie case and this court said the statute had no application to the situation there being considered. The court further said (p. 669) that the case fell within the general principle that where a municipal corporation receives a service, or improvement, which it retains or uses, common honesty requires that it make payment therefor. This general statement might be applicable to our case, but it is difficult to find any other analogy between that case and ours.
On the other hand, defendant relies on Jenkins v. City of Lindsborg, 152 Kan. 727, 107 P. 2d 705, where the employee was a day laborer at the municipal gas plant and had been employed by the superintendent of utilities on a basis of thirty cents an hour. A resolution was passed by the city council establishing a minimum wage of forty-five cents an hour. The plaintiff had accepted his pay checks based on the thirty cent hourly rate but claimed the forty-five cent hourly rate for twelve hour days from June 4 to August 13, 1937, and for eight hour days thereafter until April 19, 1938. In the opinion the court said:
“In any event, no express contract by the city, as alleged, to pay appellant forty-five cents an hour was shown, and by his monthly acceptance for many months of checks which he knew were based on a rate of thirty cents an hour, appellant was estopped from asserting an implied contract for payment at a greater rate. For the same reason he was likewise estopped from recovering additional compensation under the second cause of action based on the principle of quantum meruit.” (p. 730.)
The judgment of the trial court sustaining a' demurrer to tire petition was affirmed in the Jenkins case and in the first paragraph of the syllabus this language appears:
“An employee of a municipality who holds no city office with fixed term or salary,- but may be discharged at any time with or without cause, who signs vouchers and accepts pay checks for many months at the rate of pay tendered, and who files no claim for additional compensation until after his services are terminated, is thereafter estopped, in the absence of express contract otherwise, from making such claim.”
Likewise defendant cites Sturgis v. Kansas City, 151 Kan. 658, 100 P. 2d 661, concerning a subordinate city employee who sought compensation for services rendered under three separate and distinct employments with the city ranging over a period of years, during which he could have resigned at any time without liability for breach or the city could have discharged him at any time. He was paid by the week for his first two employments and for part of the third but during the latter part of the last one his pay was on a semimonthly basis. Evidence was introduced in support of these facts and the court applied the three year statute of limitations. The action had been commenced on August 25, 1938, and salaries claimed prior to August 25, 1935, were, therefore, barred since under the facts the employee had accepted them without protest. This acceptance constituted an estoppel to claim more than had been so accepted. However, in the Sturgis case the doctrine of estoppel did not need to be the determinative factor. The court in directing that judgment for defendant be entered by the trial court further said the claim failed for another reason:
“Where a contract does not fix the actual compensation to be paid, the employee will be allowed a fair wage for the services rendered. (39 C. J. 171.) Plaintiff made no effort to prove the amounts he had received and accepted did not constitute fair compensation for the services rendered.” (p. 667.)
To say that plaintiff’s petition sufficiently states a cause of action would overrule the foregoing decisions and that should not and cannot be done because in effect it would undermine the whole economic structure of municipalities as well as other governmental units of the state. How could budgets and tax levies be determined in advance with any degree of certainty if such claims as the one here involved had no limitation? There would be no end to such a practice and it cannot be allowed.
Plaintiff makes it crystal clear that he is only claiming overtime and since his petition is silent as to compensation for his regular employment, the inescapable conclusion is that he has been paid in full therefor. While he may have been entitled to the overtime for his services if demand had been seasonably made therefor, what was said in the Jenkins case, supra, precludes and estops his recovery now under the allegations of his amended petition, the sufficiency of which is the only thing here being determined.
We conclude the trial court was correct in its order sustaining the demurrer and the judgment is, therefore, affirmed. | [
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Greene, J.:
Patrick C. Lynn appeals tire district court’s refusal to permit the filing of his petition for writ of mandamus, which complained of a retaliatory transfer to Oklahoma. We affirm.
Factual and Procedural Overview
Patrick C. Lynn was convicted of aggravated burglary, aggravated kidnapping, rape, and aggravated criminal sodomy. On appeal, his convictions were affirmed, but his sentences were vacated and the case remanded for resentencing. See State v. Lynn, Case No. 78,565, unpublished opinion filed March 24,2000, rev. denied 269 Kan. 938 (2000). Lynn was subsequently resentenced, and those sentences were affirmed on appeal. See State v. Lynn, Case No. 86,942, unpublished opinion filed March 21, 2003, rev. granted September 24, 2003
In August 2002, Lynn filed his “Petition For Writ of Mandamus” against Charles Simmons and the Kansas Department of Corrections (KDOC) in the district court of Shawnee County. Lynn stated he was serving an illegal sentence in the custody of the KDOC and had been involuntarily transferred without notice to the Oklahoma Department of Corrections (ODOC).
Lynn claimed the KDOC transferred him “in retaliation for past, pending, and forthcoming litigation, and other exercises of his 1st Amendment activities” with the intention to silence or prejudice him. He listed 11 cases that he had filed against state entities and personnel in various state and federal courts. Lynn stated he had also filed more than 50 prison grievances in the past 12 months and assisted a dozen prisoners with their litigation.
Lynn stated that a mandamus action was appropriate because the KDOC could not retaliate against a prisoner who exercised his or her First Amendment rights or right of access to the courts, and he could not meet the “ ‘physical presence’ ” requirement for filing a habeas corpus petition under K.S.A. 2002 Supp. 60-1501 as set forth in Hannon v. Maynard, 3 Kan. App. 2d 522, Syl. ¶ 2, 597 P.2d 1125 (1979). Lynn requested the KDOC be ordered to immediately return him to Kansas.
After the State filed its answer and asserted numerous defenses including failure to exhaust administrative remedies, Lynn filed a “Rebuttal” pleading, arguing that exhaustion of his administrative remedies with the KDOC would be an act of futility. Lynn explained that the personnel who would decide his KDOC grievance had a personal interest as he had sued them and that litigation was still pending.
The district court concluded that Lynn’s petition had no merit. Specifically, the court refused to permit the filing because: (i) Lynn had not exhausted his administrative remedies with the KDOC; and (ii) mandamus was inappropriate to challenge the KDOC’s discretionary decision to transfer a prisoner to another state. Accordingly, the court expressly prohibited Lynn from filing his petition. This prohibition was exercised pursuant to the injunction against Lynn in Case No. 97 C 6900, which included in relevant part a provision that the court review any petition proposed for filing by Lynn in any Kansas court for a determination whether the petition is lacking in merit, is duplicative, or is frivolous.
Ten days after the file-stamped date on the district court’s decision, Lynn filed his KDOC grievance complaining about the transfer to Oklahoma. Lynn timely appeals the district court decision and requests that we review the district court’s action in prohibiting the filing of his petition.
Standard of Review
Whether a party is required to or has failed to exhaust administrative remedies is a question of law, and our review is unlimited. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 622-23, 24 P.3d 128 (2001). Whether mandamus lies is dependent upon an interpretation of the applicable procedural and substantive statutes, over which this court has unlimited review. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
The District Court Did Not Err in Finding that Lynn Had Not Exhausted Administrative Remedies
K.S.A. 75-52,138 provides:
“Any inmate in the custody of the secretary of corrections or in a county jail, prior to filing any civil action naming tire state of Kansas, any political subdivision of the state of Kansas, any public official, the secretary of corrections, the warden, the sheriff, or an employee of the department of corrections or the county, while such employee is engaged in the performance of such employee’s duty, as the defendant pursuant to the rules of civil procedure, shall have exhausted such inmate’s administrative remedies, established by the rules and regulations promulgated by the secretary of corrections or by county resolutions, concerning such civil action. Upon filing a petition in a civil action, such inmate shall file with such petition proof that the administrative remedies have been exhausted.”
The Secretaiy of the KDOC is authorized to adopt rules and regulations regarding the prisons. See K.S.A. 75-5210(f)-(g); K.S.A. 75-5251. The KDOC grievance procedure for inmates is set forth in K.A.R. 44-15-101 et seq. An inmate is required to file a formal grievance form. See K.A.R. 44-15-101(b); K.A.R. 44-15-102. The KDOC grievance procedure applies to complaints “regarding policies and conditions within the jurisdiction of the institution or the department of corrections,” and “[ajctions by employees and inmates, and incidents occurring within the institution.” K.A.R. 44-15-101a(d)(l)(A), (B).
Lynn contends the KDOC effectively “slammed the door shut” to the administrative grievance procedure when it transferred him to the ODOC. He argues he was not required to exhaust because he was not “within the jurisdiction of the facility or the department of corrections” as required under K.A.R. 44-15-101a(d)(l)(A), (B).
Lynn has cited Hannon, 3 Kan. App. 2d 522, Syl. ¶ 2, as support for his position that his confinement at the ODOC does not require exhaustion of administrative remedies. We find Hannon inapplicable, however, because it addressed a civil action pursuant to K.S.A. 2002 Supp. 60-1501 and turned on the express “physical presence” requirement of that statute. Moreover, Hannon addressed mootness, not exhaustion of administrative remedies.
The critical factor is that Lynn is serving a Kansas sentence. He was convicted in Kansas of several felonies and sentenced to imprisonment. Felony sentences are served in the custody of the Secretary of the Department of Corrections who has the authority to supervise and manage correctional institutions and designate the place of the inmate's confinement. See K.S.A. 21-4609; K.S.A. 75-5202(d); K.S.A. 75-5205(a); K.S.A. 2002 Supp. 75-5206; K.S.A. 2002 Supp. 75-5218.
Moreover, under the Interstate Corrections Compact, K.S.A. 76-3001 et seq. (the ICC), inmates confined in another state “shall at all times be subject to the jurisdiction of the sending state.” K.S.A. 76-3002, Article IV(c). Further, “confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state.” K.S.A. 76-3002, Article IV(e). Lynn’s confinement in the ODOC did not cut off the administrative grievance procedure for any of his civil claims against the KDOC. ■ ,.
Lynn next contends exhaustion of his administrative remedies is a futile act because the KDOC official who will decide his grievance is biased. According to Lynn, the KDOC official who reviews inmate grievances is the same person who acts as the ICC coordinator and Lynn has sued that person in other pending litigation. For those reasons, Lynn claims he cannot receive an impartial decision for any grievance, which violates his due process rights.
K.S.A. 75-52,138 does not set out a grievance procedure, but requires an inmate to follow the grievance procedure established by the KDOC. The KDOC regulations allow each inmate to file a grievance, see K.A.R. 44-15-101(g), regarding its policies and conditions and actions by employees and other inmates. See K.A.R. 44-15-101a(d). Remedies include action by the prison director or the Secretary of KDOC to have the problem corrected or to remedy an objectionable condition or to change an institution policy or practice. K.A.R. 44-15-101a(e). The regulations also address possible bias. “Any inmate or employee who appears to be involved in the matter shall not participate in any capacity in the resolution of the grievance.” K.A.R. 44-15-101a(f). We decline to find that the administrative grievance procedure was legally inadequate.
Lynn next argues the Kansas Constitution grants exclusive jurisdiction to the district court for all civil matters and K.S.A.75-52,138 divests that jurisdiction from an administrative agency. He asks this court to follow Pope v. State, 792 So. 2d 713, reh. denied (La. 2001), and declare K.S.A. 75-52,138 unconstitutional. At the outset, we note that the Louisiana constitutional language in Pope differs significantly from the Kansas language in Article 3, § 1. In Louisiana, the constitution vests “original jurisdiction” in courts, whereas the Kansas Constitution merely vests “judicial power” “exclusively” in our courts. Our Supreme Court has held that the term “exclusively” in Article 3, § 1 was never intended to prevent the legislature from conferring quasi-judicial powers on administrative agencies when necessary to enable them to carry out their functions. Behrmann v. Public Employees Relations Board, 225 Kan. 435, 443, 591 P.2d 173 (1979). Moreover, exhaustion of administrative remedies in such quasi-judicial bodies is a fundamental and well-established legal precept, grounded in both statutory and common law. See, e.g., K.S.A. 77-612; Pecenka v. Alquest, 232 Kan. 97, 652 P.2d 679 (1982); Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975). Lynn’s challenge to the constitutionality of K.S.A. 75-52,138 is rejected.
Having carefully considered Lynn’s arguments in support of error, we conclude that the district court did not err in finding Lynn’s action barred due to failure to exhaust his administrative remedies, and we affirm as to this issue.
The District Court Did Not Err in Concluding That Mandamus Was Inappropriate
Although our resolution of the procedural issue should be sufficient to affirm the district court’s prohibition to file Lynn’s petition, we find it in the interest of judicial economy to address the remaining issue within the framework of this appeal. The second issue framed is whether mandamus was appropriate for Lynn’s complaints.
Mandamus is defined as “a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” K.S.A. 60-801. The Kansas Supreme Court has explained
“ ‘that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station; that mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to die order which he seeks.’ ” (Emphasis added.) Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 260-61, 671 P.2d 559 (1983).
Discretionary acts are defined “as those acts wherein there is no hard and fast rule as to course of conduct that one must or must not take and, if there is a clearly defined rule, such would eliminate discretion.” Dougan v. Rossville Drainage Dist., 243 Kan. 315, 321, 757 P.2d 272 (1988).
Here, the district court determined that the ICC gave the KDOC discretion in deciding whether to transfer an inmate to another state prison. The pertinent provisions of the ICC are:
“(a) Whenever die duly constituted authorities in a state party to this compact, and which has entered into a contract pursuant to article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment, said officials may direct that the confinement be widiin an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for die sending state.
“(c) Inmates confined in an institution pursuant to die terms of this compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed therefrom for transfer to a prison or other institution within the sending state, for transfer to anotiier institution in which the sending state may have a contractual or other right to confine inmates, for release on probation or parole, for discharge, or for any otiier purpose permitted by die laws of the sending state.” K.S.A. 76-3002, Article IV.
K.S.A. 76-3003 authorizes the Secretary of Corrections “to do all things necessary or incidental to the carrying out of the compact in every particular and he or she may in his discretion delegate this authority to a deputy secretary or other appropriate official.” K.S.A. 2002 Supp. 75-5206(a) further provides “tire secretary shall have authority to order the housing and confinement of any person sentenced to the secretary’s custody to any institution or facility herein placed under the secretary’s supervision and management or to any contract facility, including a conservation camp.”
These statutory provisions utilize broad language for interstate prison transfers and impose no conditions or standards that restrict the KDOC’s discretion to transfer an inmate to another compact state. There are no KDOC regulations governing interstate transfers. See K.A.R. 44-1 through 44-16. We conclude that the act of transferring an inmate to, or returning an inmate from, an interstate prison is not a legally specified duty that is properly the subject of a mandamus action.
In his reply brief, Lynn disagrees that these statutes control. He claims he has a protected due process interest under K.S.A. 75-5201 and K.A.R. 44-15-104(a). According to Lynn, that protected right was violated by the KDOC when it transferred him to the ODOC in retaliation for exercising his First Amendment rights and his constitutional right of access to the courts. Lynn’s argument misses the point—the issue in a mandamus action is whether the KDOC had a specified legal duty to perform an act, not whether an inmate has legal cause of action for a constitutional violation.
The United States Supreme Court addressed interstate prison transfers and due process rights in Olim v. Wakinekona, 461 U.S. 238, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983). The Court in Wakinekona rejected “a holding that ‘any substantial deprivation imposed by prison authorities triggers die procedural protections of the Due Process Clause’ ” because it “ ‘would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.’ ” 461 U.S. at 245. The Court held that an inmate had no justifiable expectation that he or she would be incarcerated in any particular state. 461 U.S. at 244-45. The Court concluded an interstate transfer did not deprive an inmate of any liberty interest protected by the Due Process Clause. 461 U.S. at 248.
We embrace the rationale and holding of Wakinekona in concluding that Lynn had no protected liberty interest to remain in a Kansas prison.
The district court did not err in holding that mandamus does not lie for the discretionary act of interstate prison transfer.
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Buchele, J:
The natural father of N.H. and B.H. (children) appeals the termination of his parental rights. He claims that the delay in reaching trial of this case violated his due process right; the trial court erroneously admitted evidence of an alcohol counselor and individual therapist; and there was a lack of substantial evidence to support unfitness or that he was likely to change in the foreseeable future. We disagree and affirm.
On May 20,1999, the State filed a child in need of care (CINC) petition as to the children. The petition alleged, among other things, that the father had approached Social and Rehabilitation Services (SRS) asking for assistance because the family was without housing, food, gas, and electricity. Records revealed the children had been in SRS custody in June 1998, and had been removed from the home on previous occasions for medical neglect, allegations of sexual abuse, and allegations of physical neglect.
On May 25,1999, a temporary custody hearing was held and the district court found probable cause to believe the children were in need of care. SRS was given custody pending further hearings. The father stipulated the children were in need of care at an adjudication hearing. The court adopted nine conditions which the father had to meet to establish reintegration. A dispositional hearing was scheduled for October 27, 1999.
At the October dispositional hearing, the parties requested a continuance because the father had not completed the court-ordered evaluation and the children were being reintegrated into the residence of the father and his sister, T.W., who was living with him and helping to care for the children. The hearing was rescheduled for December 20,1999. The children had been returned to their father s care on October 27, but were removed again on November 23,1999, after a violent dispute between the father and T.W. On January 27, 2000, the district court transferred the case from Trego County to Ellis County based on the father s motion.
On March 31, 2000, a dispositional hearing was scheduled but, after two different recording devices malfunctioned, the father objected to continuing the hearing without a recording. After several continuances, a dispositional hearing was held on August 16, 2000. The father objected to tire proposed journal entry of the August 16 hearing, and tire district court scheduled October 13, 2000, for a hearing on tire father s objection. The court concurred with the father that the new circumstances of his recent marriage should be considered before severance could occur. The parties agreed that a new home study could not be completed by November 2, thus, the November 2 hearing would be used as a review hearing to examine tire new home study. The court noted any delay would be in the father’s favor because it would give him a chance to develop his case for having the children returned to him. The State noted it could not file a motion to sever until it had all the information about the new family.
On November 2, 2000, a review hearing was held and a severance hearing was scheduled for January 24, 2001. The January 24, 2001, severance hearing was continued by consent of the parties to July 23, 2001, because more time was needed to review tire new home study.
On June 5, 2001, tire father filed a motion to dismiss arguing that the children were adjudicated children in need of care on September 18, 1999; tire State had set the matter for severance several times, but no such motion had ever been filed; he had substantially complied with all aspects of the reintegration plan; and tire State had not used reasonable efforts to reintegrate tire children.
On July 3, 2001, the State filed its request for severance of parental rights, stating it was relying on a presumption of unfitness pursuant to K.S.A. 38-1585(a)(5) and 38-1585(a)(6).
On July 23,2001, the matter came on for severance hearing. The father argued the case should be dismissed because the matter had been set for severance four times, but the State had never filed the severance petition until recently; the State had not used reasonable efforts during tire past 2 years to effectuate a reintegration program; disposition was held a year after adjudication; and reintegration was never attempted after the children were removed in November 1999. The court took tire father’s motion under advisement and found jurisdiction as to severance was lacking until serv ice was made on the maternal grandfather. Thus, the severance hearing was continued to October 16, 2001.
Finally, a severance hearing was held on October 16 and 17, 2001. The father renewed his motion to dismiss because the case had not proceeded in a timely manner. The district court never specifically overruled the motion to dismiss, but by proceeding, it essentially denied the motion to dismiss.
The resolution of this issue involves a determination of whether the procedural language of K.S.A. 38-1561 and K.S.A. 38-1581(c) is mandatory or directory. “This court’s standard of review is unlimited as the interpretation of a statute is a question of law. [Citation omitted.]” State v. Residential Unit & Real Estate, 26 Kan. App. 2d 260, 261, 983 P.2d 865, rev. denied 268 Kan. 893 (1999).
The father contends the language of K.S.A. 38-1561 and K.S.A. 38-1581 is mandatory and failure to follow the mandates of the statutes violated his due process rights. K.S.A. 38-1561 provides: “The order of disposition may be entered at the time of the adjudication, but shall be entered within 30 days following adjudication, unless delayed for good cause shown.” Pursuant to K.S.A. 38-1581(c):
“The county or district attorney or the county or district attorney’s designee shall file pleadings alleging a parent is unfit and requesting termination of parental rights or the establishment of a permanent guardianship within 30 days after the court has determined reintegration is not a viable alternative unless the court has found a compelling reason why adoption or permanent guardianship may not be in the best interest of the child. The court shall set a hearing on such pleadings and matters within 90 days of the filing of such pleadings.”
The father asserts he was denied his rights to parent his children from November 1999, when the children were removed from his house for a second time, until disposition, held on August 16,2000, some 9 months after the removal of the children and 15 months after adjudication. He alleges he was denied his rights to parent his children until severance, which did not occur until October 2001, over 2 years after the removal of the children from his home. Further, the father argues he was denied due process by the State’s continuous failure to file its motion to sever. He contends the continuance of the severance hearings were not in his best interest because the State’s failure to continue reintegration in good faith after adoption became the case plan goal, coupled with the State’s failure to timely file the motion to sever, gave the impression he was not making efforts to reintegrate the children and had the effect of substantially denying him due process of law.
In the case of In re J.L.D.,14 Kan. App. 2d 487, 490, 794 P.2d 319 (1990), the court stated:
“When the State seeks to terminate the relationship between a parent and child, it must do so by fundamentally fair procedures that meet the requisites' of due process. Santosky v. Kramer, 455 U.S. 745, 752-54, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Thus, the question is in each case, including the case before us, what process is due. Due process is not a static concept; rather, its requirements vary to assure the basic fairness of each particular action according to its circumstances.”
Our review of the record does not show that the father’s due process rights were violated in this case. Many of the delays were either requested, agreed to, or caused by the father and some were made by the court to give the father more time to comply with the goals of integration. Also, we do not recognize how the father was prejudiced by the fact the State did not file its motion to sever until July 3, 2001, given the termination hearing was not held until October 16, 2001. The father was represented by counsel throughout the pendency of the case and had sufficient timely notice of the factors the State was relying on in requesting termination. Moreover, the father requested some of the delay in filing the severance motion when he remarried and the State was required to do an entire new home study and consider all the new circumstances.
The language regarding time limitations for dispositions of a child in need of care case stated in K.S.A. 38-1561 and K.S.A. 38-1581(c) is directory, not mandatory. The criteria for determining whether a statute should be deemed mandatoiy or directory was stated in Lyon-Coffey Electric Coop, Inc. v. Kansas Corporation Comm’n, 29 Kan. App. 2d 652, 660-61, 31 P.3d 962, rev. denied 272 Kan. 1418 (2001):
‘Whether language in a statute is mandatoiy or directory is determined on a case-by-case basis, and the criteria is whether compliance with the language is essential to preserve the rights of the parties. Marais des Cygnes Valley Teachers’ Ass’n v. U.S.D. No. 456, 264 Kan. 247, 251, 954 P.2d 1096 (1998). If it is essential to the preservation of the rights of the parties, the statute is mandatory. Factors indicating the provisions of a statute are mandatory are: (1) the use of negative words that require an act shall be done by no other method or at no other time than that stated, or (2) provision for a penalty or other consequence for noncompliance. 264 Kan. at 251. The statute is directory where the provision establishes a manner of proceeding and a time within which an official act is to be done and is intended to secure order, system, and dispatch of the public business. 264 Kan. at 251.”
In State v. Residential Unit & Real Estate, 26 Kan. App. 2d at 261, the court dealt with the language of K.S.A. 60-4113(g) of the Kansas Standard Asset Seizure and Forfeiture Act (KSASFA). Under K.S.A. 60-4113(g), “the hearing on the claim shall be held within 60 days after service of the petition unless continued for good'cause.” The case, however, was set more than 60 days after service of the petition and the hearing was held more than 100 days after service of the petition. 26 Kan. App. 2d at 261.
The Residential Unit & Real Estate court held:
“K.S.A. 60-4113(g) is a matter of convenience rather than substance. It gives a view to the proper, orderly, and prompt conduct of business; has no words of absolute prohibition; and does not provide a penalty for noncompliance. If a party has complied with statutory provisions requiring action, then subsequent procedural steps to be taken by the court are directory, and the review proceeding is not defeated by defects created or matters overlooked by court personnel. [Citation omitted.]” 26 .Kan. App. 2d at 263.
The Residential Unit & Real Estate court also noted that under K.S.A. 60-4123, the Act is to be liberally construed. 26 Kan. App. 2d at 263.
In the case of In re T.K., 11 Kan. App. 2d 632, 633-34, 731 P.2d 887 (1987), the court held the 30-day time period under K.S.A. 38-1683(a) was directory, not mandatoiy. Although the 30-day requirement is clear and unambiguous, the court held it had to be read in concert with K.S.A. 38-1601, which instructed that the Kansas Juvenile Offenders Code be “ liberally construed’ for the ends enumerated.” 11 Kan. App. 2d at 636. Also, “a rigid and legalistic interpretation of the appeal provisions does little to further the parental interests of the State. While the clear purpose of 38-1683(a) is to provide a prompt review of the district magistrate judge’s decision, order and promptness are the general characteristics of a directory statute.” 11 Kan. App. 2d at 636. Further, the legislature provided no remedy where the 30-day limit was transgressed and the main legislative purposes were not defeated when a hearing was not promptly held. 11 Kan. App. 2d at 637. See also State v. Fink, 217 Kan. 671, Syl ¶ 3, 538 P.2d 1390 (1975) (language requiring a preliminary hearing within 10 days of arrest or personal appearance is directory); In re Flournoy, 5 Kan. App. 2d 220, 223, 613 P.2d 970 (1980) (language requiring a hearing within 2 weeks after filing a petition is directory).
Although time limitations for a child in need of care case are stated in the statutes, they must be read in concert with K.S.A. 38-1501, which instructs that the Kansas Code for Care of Children shall be liberally construed. The time frames prescribed by the statutes are to see that a severance case is expeditiously resolved and to protect parties from unreasonable delay. But, a rigid interpretation of the statutes would do little to further the end that each child shall receive the care, custody, guidance, control, and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the State. The legislature has provided no remedy where the time limits were transgressed. The father has not shown his rights were prejudiced by the delay or that it is in the interests of the child that the case be dismissed. We find the trial court did not err in refusing to grant the father’s motion to dismiss.
The father argues the trial court erred by allowing testimony from his individual drug and alcohol counselor and his individual therapist.
“When determining whether evidence was properly admitted at the trial court level, the appellate courts utilize an abuse of discretion standard of review. [Citation omitted]. Judicial discretion is abused when judicial action is.arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted]. Wide latitude is given to tire district court in determining what evidence to admit. [Citation omitted]. The appellant has the burden of showing why .admitted testimony should have beén excluded. [Citation omitted].” State v. Alexander, 268 Kan. 610, 617, 1 P.3d 875 (2000).
K.S.A. 38-1514(b)(l) provides for the evaluation of development or needs of a parent and states:
“Physical, psychological or emotional. During proceedings under this code, the court may order an examination, evaluation and report of the physical, mental or emotional status or needs of a parent. . . . Written reports and other materials relating to the examination and evaluation may be considered by the court but, if requested by any interested party in attendance, the court shall require the person preparing the report or other material to appear and testify.”
K.S.A. 38-1514(c)(l) addresses the confidentiality of the reports and states: “No confidential relationship of physician and patient, psychologist and client or social worker and client shall arise from an examination or evaluation ordered by the court.” See In re K.G.O., 12 Kan. App. 2d 7, Syl ¶ 1, 738 P.2d 98 (1987) (K.S.A. 38-1514[c][l] creates an exception to the confidential relationship between a psychologist and a client.).
The father contends K.S.A. 38-1514(b)(l) and (c)(1) do not apply because the court did not order any drug or alcohol evaluations. Thus, K.S.A. 65-6410 and 65-5603 should have applied, thereby making the information privileged. Although the conditions agreed to at the adjudicatory hearing required him to comply with the recommendations of Youthville and later St. Francis, the court never specifically ordered him to obtain such an evaluation. The father argues even if this court concludes there was an implied order, the only evidence that should have been admitted without his consent was the actual evaluation, not the testimony regarding his treatment. According to the father, the district court could not have found he had an alcohol problem without the testimony of the drug and alcohol counselor and his individual therapist.
Richard Duncan, a substance abuse specialist for SRS, did the drug and alcohol evaluation in January 2000. At the hearing, the father asserted that Duncan’s testimony was privileged pursuant to a ruling by Magistrate Judge Flax. The State argued it was implicitly ordered because the father was ordered to follow through on Youthville’s recommendations and the evaluation was done at Youthville’s request. The district court agreed with the State and admitted Duncan’s testimony and evaluation over the father’s objection.
Duncan’s evaluation concluded that the father needed inpatient treatment for alcoholism because of his self-reported history of drinking, intent to keep drinking as pain medication for his knee, and his report that he sometimes loses control and becomes violent when drinking. The father described three incidents to Duncan when he was intoxicated and got into physical confrontations. The father also said he had been drinking when the violent domestic dispute with his sister occurred. The father told Duncan he did not need inpatient treatment and refused to sign any releases for treatment centers.
At the September 17, 1999, adjudication hearing, Judge Flax ordered the father to obtain a parenting psychological evaluation, to follow all recommendations made in such evaluation, and to participate with Youthville services and follow their recommendations. Dr. Kohrs’ evaluation was apparently the parenting evaluation the court specifically ordered, while Duncan’s evaluation was based solely on a referral from United Methodist Youthville (Youthville). In a March 2000, journal entry, however, Judge Flax specifically considered the issue of privilege, noted that he had ordered the father to follow the recommendations of Youthville and stated: “Youthville recommended an alcohol evaluation. The Court rules this is admissible as a Court ordered report.”
Thus, even if the order was implicit at the time the evaluation was completed in January 2000, Judge Flax later ruled it was a specific order based on Youthville’s recommendation. Therefore, pursuant to K.S.A. 38-1514(c)(l), the evaluation was court ordered and was not privileged. The district court did not abuse its discretion in admitting Duncan’s alcohol evaluation.
The father does not specify which individual therapist’s testimony should have been excluded. Various “individual therapists” testified, including Jane Kohrs, Brett Murray, and Nancy Dreiling. Presumably, he objects to Dr. Kohrs’ testimony because under the court’s finding of alcohol addiction or abuse as defined, the court stated: “Dr. Kohrs believes that lack of alcohol treatment and the lack of cooperation with counselors indicates a poor prognosis.” Dr. Kohrs’ evaluation was apparently the court-ordered parenting psychological evaluation. Thus, it also was not privileged.
Regardless of whether any individual therapists’ testimony should not have been admitted, the district court had sufficient competent evidence to make a finding of an alcohol problem based solely on Duncan’s evaluation. Moreover, there is evidence from which the court could have found the father had an alcohol problem without the testimony of Duncan or any individual therapist. For example, the father admitted to Belinda Hartman that he was drinking when he got angry with his sister and sometimes he “blacks out” and doesn’t know what he is doing when drinking. Alcohol abuse was only one of several reasons the court terminated the father’s parental rights.
We find no error in admission of the testimony.
The applicable standard of appellate review in a termination of parental rights case is “not whether the record contains substantial competent evidence of a clear and convincing nature but whether there is substantial competent evidence in the record to support the trial court’s decision that the parent was unfit and that parental rights should be terminated.” In re S.M.Q., 247 Kan. 231, 240, 796 P.2d 543 (1990). The appellate court “cannot reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. This court must review the evidence in the light most favorable to the party prevailing below. [Citations omitted.]” In re A.N.P., 23 Kan. App. 2d 686, 692, 934 P.2d 995 (1997).
When considering the factors for terminating the rights of a parent under K.S.A. 2002 Supp. 38-1583, the court must give primary consideration to the physical, mental, or emotional condition and needs of the children. The existence of any one factor listed under K.S.A. 2002 Supp. 38-1583 may, but does not necessarily, establish grounds for termination of parental rights, and the determination must be based on an evaluation of all applicable factors. K.S.A. 2002 Supp. 38-1583(e).
Here, in determining that the father was unfit and his parental rights should be severed, the district court found the following K.S.A. 2002 Supp. 38-1583(b) factors existed: K.S.A. 2002 Supp. 38-1583(b)(l)(“[e]motional illness, mental illness, mental deficiency or physical disability of the parent, of such duration or na ture as to render the parent unlikely to care for the ongoing physical, mental and emotional needs of the child”). The court found the father has a physical disability and a mental deficiency as described under K.S.A. 2002 Supp. 38-1583(b)(l). The father is physically disabled with, a sole source of income of $550 per month from SSI payments; he is unable to provide for his own needs on this income, much less the needs of his children. He also has demonstrated an unwillingness to cooperate with service providers who assist in proper budgeting and financial management, although given many opportunities to do so. During the pendency of the case, the father lived in five different residences, some lost due to nonpayment of rent.
The trial court also noted that notwithstanding his limited means, the father purchased a stereo system requiring monthly payments of about $178, leaving little money for basic necessities. Further, Dr. Kohrs testified the father had a life-long learning disability with a low average to borderline IQ. Although borderline individuals can successfully raise children, alcohol issues, moodiness, low self-worth, high impulsivity, and poor judgment skills would work against his success as a parent. Also, there was testimony from social providers that the father refused or reluctantly accepted services and could only function successfully with help from providers and his female companions. There was no evidence these overriding deficiencies were likely to improve with help or over time.
Also K.S.A. 2002 Supp. 38-1583(b)(2) (conduct toward a child of a physically, emotionally or sexually cruel or abusive nature) applied because when SRS took custody of the children in May 1999, they both had head lice, N.H.’s teeth were seriously decayed and she needed dental surgeiy, and she had a urinary tract infection. The father would “head butt” with B.H. As a manner of discipline, the father yelled and screamed at the children until they would shake. Further, he seemed disinterested in N.H., which is a form of emotional abuse, and both children were developmentally and socially delayed when SRS took custody, but they significantly improved while in foster care.
The trial court also cited K.S.A. 2002 Supp. 38-1583(b)(3) (excessive use of intoxicating liquors or narcotic or dangerous drugs), noting the father has an alcohol addiction, but refused treatment. Further applicable factors were K.S.A. 2002 Supp. 38-1583(b)(7) and (b)(8) (reasonable efforts by appropriate public or private child caring agencies have been unable to rehabilitate the family; and lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child). The court found substantial evidence was presented of reasonable efforts by appropriate agencies to rehabilitate the family, but the father did not make sufficient effort to adjust his circumstances, conduct, or conditions to meet the needs of the children.
K.S.A. 2002 Supp. 38-l583(c)(3) (failure to carry out a reasonable reintegration plan) also applied because the children have not been in the father’s physical custody and he has failed to carry out a reasonable plan directed towards the reintegration of the children. In terminating the father’s parental rights, the court considered the above factors in light of the physical, mental, and emotional needs of the children.
The testimony of the many individuals involved with the family provides sufficient competent evidence to terminate the father’s parental rights. Reviewing the evidence in the light most favorable to the party prevailing below, there was substantial competent evidence in the record to support the trial court’s decision that the father was unfit by reason of conduct or condition which rendered him unable to care properly for the children and the conduct or condition was unlikely to change in the foreseeable future.
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Malone, J.-.
Steve Aylward appeals the district court’s dismissal of his breach of contract claim. The issue is whether the contract’s forum selection clause is enforceable. We affirm.
On or about December 16, 1998, Aylward and Dar Ran Furniture Industries, Inc. (Dar Ran) entered into a “manufacturer’s representative agreement.” The agreement was signed in North Car olina while Aylward was attending a business meeting. Dar Ran is a North Carolina corporation.
■Aylward had been working as a sales consultant for Dar Ran since 1980 and is a resident of Johnson County, Kansas. Aylward transacted business within Kansas and throughout the midwest selling Dar Ran products. Aylward5s amended petition claimed that Dar Ran failed to pay him $9,462.96 in earned commissions.
Dar Ran filed a motion to dismiss for lack of jurisdiction claiming that the written contract contained a forum selection clause requiring the parties to litigate any dispute in North Carolina. The pertinent section of the contract reads as follows:
“6.1 Applicable Law
This agreement, its execution, interpretation and performance shall be governed by the laws of the State of North Carolina. [Aylward] does hereby consent to and submits to the jurisdiction of the courts within North Carolina for any action arising under this agreement and agrees that process may be served upon them in any manner provided by the laws of said State. This agreement toas executed in North Carolina and any dispute arising hereunder shall be resolved by the courts unthin North Carolina.” (Emphasis added)
The district court granted the motion to dismiss, finding that the written agreement between the parties was “clear and unambiguous” and required that “plaintiff s action be brought in North Carolina.” Alyward’s motion to reconsider was denied and this timely appeal follows.
“The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]” Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
The district court found that it lacked jurisdiction, based on the language of section 6.1 of the written agreement. On appeal, Aylward alleges that the language included in the forum selection clause was “permissive” as opposed to being “mandatory” because the language did not “prohibit litigation elsewhere.”
In support of this interpretation, Aylward relies entirely on this court’s decision in Thompson v. Founders Group Int'l, Inc., 20 Kan. App. 2d 261, 886 P.2d 904 (1994). The language of the Thompson forum selection clause stated that “ jurisdiction and venue of any action brought pursuant to this Agreement . . . shall properly lie ” in a specific judicial district in Florida. (Emphasis added.) 20 Kan. App. at 262. In Thompson, this court held that the particular forum selection clause was merely “permissive” and allowed the action to be brought in Kansas.
The Thompson court distinguished the language of its forum selection clause from the contractual language found in Vanier v. Ponsoldt, 251 Kan. 88, 833 P.2d 949 (1992). The Vanier court enforced a forum selection clause which read, “ jurisdiction and venue for any dispute arising under or in relation to this contract shall lie only in the Seller s state and county.’ ” 251 Kan. at 94.
The Vanier court recognized diere is a modern trend toward enforcing forum selection clauses. In particular, the Vanier court noted that the United States Supreme Court had enforced forum selection clauses in The Breman v. Zapata Off-Shore Co., 407 U.S. 1, 32 L. Ed. 2d 513, 92 S. Ct. 1907 (1972), and Carnival Cruise Lines v. Shute, 499 U.S. 585, 113 L. Ed. 2d 622, 111 S. Ct. 1522 (1991), reversing the long held belief that such clauses were contrary to public policy.
The contract at issue does not select a specific court within North Carolina for the suit to be brought. In National Inspection & Repairs, Inc. v. George May International Co., 202 F. Supp. 2d 1238 (D. Kan. 2002), the District Court of Kansas enforced a similar forum selection clause which stated that “jurisdiction shall vest in the State of Illinois.” 202 F. Supp. 2d at 1244. The court noted that the clause could not be construed to select a forum as between the state or federal courts within Illinois; however, the language did “express an agreement that the action will be brought in eidrer state or federal courts in Illinois, to the exclusion of courts in any other state or federal district outside of Illinois.” 202 F. Supp. 2d at 1244 (citing to Johnson v. Northern States Power Co., 2000 WL 1683658 [D. Kan. 2000], and Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 386 [1st Cir. 2001]).
Other courts have recently upheld forum selection clauses similar to the one found in Alyward’s contract. In Double A Home Care, Inc. v. Epsilon Systems Inc., 15 F. Supp. 2d 1114 (D. Kan. 1998), the federal court found the following language to be mandatory: “Both the Vendor and Agency agree that said action shall be venued in the County of Ramsey, State of Minnesota.” 15 F. Supp. 2d at 1115-116. Furthermore, the Double A court clearly defined what it considered examples of “permissive venue agreements.” The court noted that language which provides that venue is “proper” or “may be maintained” in a certain venue “are not true ‘forum selection clauses/ and need not be given exclusive effect.” 15 F. Supp. 2d at 1115.
The language in Alyward’s contract uses neither of these “permissive” phrases. Instead, it explicitly states that “any dispute arising hereunder shall be resolved by the courts within North Carolina.”
Dar Ran could have removed all doubt about the mandatoiy nature of the forum selection clause by inserting more exclusive language such as “only” or “to the exclusion of.” However, the language of the clause as written clearly evinces an intention by the parties to require that all lawsuits be brought in North Carolina to the exclusion of any other state. The language is clearly meant to prevent the parties from bringing an action anywhere but North Carolina and is far more exclusive than the “shall properly lie” language discussed by the Thompson court.
A forum selection clause, even if exclusive, will not be enforced unless the selected forum bears “a reasonable relationship to the transaction.” Vanier, 251 Kan. 88, Syl. ¶ 2. Here, Dar Ran is located in North Carolina and the contract was signed in North Carolina. Clearly, the North Carolina forum bears a reasonable relationship to the transaction.
Furthermore, a forum selection clause in a contract must not have been “entered into under fraud or duress.” Vanier, 251 Kan. 88, Syl. ¶ 2. Aylward claims that he “was required to sign the agreement without the opportunity to thoroughly read and review the terms and conditions.” However, it is the responsibility of every contracting party to learn and know the contents of a contract before signing it. Commercial Credit Corporation v. Harris, 212 Kan. 310, 314, 510 P.2d 1322 (1973). In the Vanier case, an “experienced and astute businessman” was bound by the forum selection clause despite his claim that the clause was “buried” in the agreement. Vanier, 251 Kan. at 101.
Aylward also claims that Dar Ran had “unfair bargaining power” and that his signature was “coerced by threat of termination.” However, Aylward has presented no evidence to support these allegations. An appellant has the duty to designate a record sufficient to establish any claimed error. Unrau, 271 Kan. at 777.
Finally, Aylward claims that the clause is unenforceable because it would effectively deprive him of his day in court. This is not true. Aylward is free to bring this claim in North Carolina.
Since we conclude that the forum selection clause in Aylward’s contract is enforceable, we do not need to examine whether a Kansas court would have jurisdiction over the parties under K.S.A. 60-308(b).
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Hill, J.:
In this appeal we are asked to determine if the district court erred when it granted summary judgment in favor of Kim berly A. Ristow after her former employer, Allen, Gibbs & Houlik, L.C., attempted to enforce a noncompetition clause in its employment agreement. Because there was no legitimate business purpose for AGH that was protected by the covenant not to compete, under the facts of this case, we hold that enforcing the covenant would be unreasonable. Therefore, we affirm the district courts’ grant of summary judgment to Ristow.
BACKGROUND
Ristow was hired in 1994 by AGH, a certified public accounting firm, to work in its employee benefits group. When Ristow began working for AGH as a record-keeping administrator, she was responsible for organizing records for qualified retirement plans and converting those types of records when they were transferred to AGH from other record keepers. Ristow subsequently assumed a supervisory position in 1997. When she left AGH, Ristow’s responsibilities included daily administration of various employee benefit plans and supervision of three teams of administrators.
With her promotion in 1997, the parties executed a new employment contract that contained several clauses that were the foundation of AGH’s lawsuit. The noncompetition clause states:
“During the Employee’s employment with Employer, and within six (6) months thereafter, the Employee agrees not to negotiate for or accept a position with any client or center of influence of the Employer, or Koch Industries, Inc. and its affiliated companies without the express written consent of the Chief Executive or the Chief Executive’s designate.”
This clause was added because AGH had previously lost employees who worked in tire employee benefits area because they were lured away by Intrust Bank, N.A. and NestEgg Consulting, Inc.
While employed at AGH, Ristow became acquainted with Troy Jordan, president of NestEgg and vice-president of Wealth Management Services for Intrust. Jordan contacted Ristow and made a subsequent offer of employment. Near the end of August 2001, Ristow accepted a position with Intrust and NestEgg and provided her 2-week resignation notice to AGH.
Shortly thereafter, Paul Allen, owner and CEO of AGH, informed Ristow that she would violate the agreement should she accept the position with Intrust/NestEgg. Ristow’s last day of work at AGH was September 11, 2001. On September 27, 2001, Ristow began working for NestEgg. AGH formally notified Ristow’s counsel of her breach of the employment agreement on October 1, 2001.
On February 14, 2002, AGH filed a petition seeking liquidated damages based on Ristow’s alleged breach of the agreement. The matter was submitted to the court upon motions for summary judgment.
STANDARD OF REVIEW AND RULES OF INTERPRETATION
Since this case was decided by summary judgment motions and it centers upon the interpretation of an employment agreement, some legal fundamentals must be established. Summaiy judgment is appropriate when reasonable and all procedures are followed:
“Summaiy judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Contract questions are often subject to summary judgment. Where there are no disputed material facts, the determination of whether a party breached a contract is a question of law and is appropriate for summaiy judgment. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 154, 959 P.2d 894 (1998). This court is not restricted by the interpretation of the employment agreement rendered by the district court. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001) (an appellate court may construe written contract and determine its legal effect regardless of construction given a written contract by district court).
COVENANTS NOT TO COMPETE IN KANSAS LAW
Under Kansas law, covenants not to compete which are contained in employment contracts are strictly construed against employers. Therefore, we must construe this agreement strictly against AGH. An important case on this issue is Weber v. Tillman, 259 Kan. 457, 913 P.2d 84 (1996). It teaches us that we must consider the circumstances of the parties as well as public concerns when evaluating such contract provisions:
“A noncompetition covenant ancillary to an employment contract is valid and enforceable if the restraint is reasonable under the circumstances and not adverse to the public welfare. [Citations omitted.] The rationale for enforcing a noncom-petition covenant is based on the freedom of contract. [Citation omitted.]” Weber, 259 Kan. at 462.
In Weber, the Supreme Court examined four factors in determining whether to enforce a covenant not to compete in an employment contract setting. In addition to questioning the reasonableness of the time and territory restrictions in the covenant, the court considered whether the contract protected a legitimate business interest, imposed an undue burden on the employee, or injured the public. 259 Kan. at 461-75.
We turn first to AGH’s legitimate business interests. “[I]t is well settled that only a legitimate business interest may be protected by a noncompetition covenant. If the sole purpose is to avoid ordinary competition, it is unreasonable and unenforceable. [Citations omitted.]” Weber, 259 Kan. at 462. Prior Kansas cases have held that legally sufficient interests in the setting of an employment agreement include trade secrets and customer contacts or relationships. See Heatron, Inc. v. Shackelford, 898 F. Supp. 1491, 1500 (D. Kan. 1995); Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, 671-74, 567 P.2d 1371 (1977).
Ristow responds that AGH is precluded from raising this issue on appeal as it did not make this argument before the district court. Ristow also maintains that this particular issue was not the subject of discovery completed by the parties. AGH counters that it has consistently maintained that Ristow violated paragraph 1 of the agreement. The district court found that paragraph 1 was not supported by a legitimate business purpose.
AGH claims that the covenant not to compete sought to protect AGH’s business interest in the specialized training provided to Ristow. The facts provide that AGH revised its agreement, in part, to deal with the problem it had with Intrust hiring AGH employees from the employee benefits area to work for Intrust and NestEgg. According to AGH, the language concerning “centers of influence” and “key personnel” was added to address the problem.
The district court found the training and knowledge provided by AGH to Ristow did “not rise to the level of specialized knowledge which constitutes a legitimate business purpose which would support the restrictions on subsequent employment contained in Paragraph 1 of the Employment Agreement.” In a separate finding, the district court added that Ristow’s knowledge “was not in the categoiy of client lists or trade secrets, and that [Ristow] was clearly not a key employee of plaintiff, not like one of the accountants.”
For support of its contention that Kansas law recognizes that specialized training is a legitimate business interest, AGH turned solely to Weber, where our Supreme Court stated:
“Other jurisdictions have recognized, in addition to customer contacts, that an employer has a legitimate business interest to protect in the special training of employees, trade secrets, confidential business information, loss of clients, good will, reputation, seeing that contracts with clients continue, and referral sources. [Citations omitted.]” (Emphasis added.) 259 Kan. at 467.
AGH does not offer any Kansas law recognizing a legitimate business purpose in the special training of employees; however, it maintains an analogous factual situation was present in Borg-Warner Protective Services v. Guardsmark, Inc., 946 F. Supp. 495 (E.D. Ky. 1996), aff'd 156 F.3d 1228 (6th Cir. 1998).
We are not persuaded that Borg-Wamer advances AGH’s cause. Borg-Wamer and Guardsmark were competitors in the private security guard industry; each company was slotted within the five largest private security guard firms in the country. Guardsmark recruited and placed security guards at a client’s facility. Guards-mark employees were required to enter into a covenant not to compete by either performing or hiring others to perform security services at the “site, place or location” where the employee performed security services within the preceding 12 months.
Subsequently, Borg-Warner obtained the contract for the facility where Guardsmark had security guards in place and sought to hire the Guardsmark security guards for work at the facility. Borg-Warner further promised to represent the security guards should Guardsmark seek to enforce its noncompete clause. The court upheld the noncompete clauses after balancing the legitimate interest of the employer with the hardship to the employee. The court found that the covenant had been drawn to minimize hardship to the employee as it was specific only to the client site where the employee worked and for which Guardsmark had trained the employee. Further, the employees found other employment. 946 F.Supp. at 502.
Conversely, the language in paragraph lof Ristow’s agreement with AGH was not specific to only one client site. Instead, Ristow was precluded from seeking employment with all clients and centers of influence of AGH. Furthermore, unlike the facts in BorgWamer, AGH did not establish that Ristow could easily locate comparable employment outside of the confines of the contractual language.
In determining whether an employer had a legitimate business purpose in specialized training provided to an employee to support a restrictive covenant, courts have looked closely at the type of training provided by the employer. In Brunswick Floors, Inc. v. Guest, 234 Ga. App. 298, 506 S.E.2d 670 (1998), the employer sought to enjoin an employee from working for a competitor, maintaining he had absorbed costs associated with the employee receiving training in “advanced” carpet installation in two off-site locations. The court stated certain key legal tests to determine the efficacy of “training” as a legitimate interest: the “ ‘employer s time and monetary investment in the employee’s skills in the development of [employee’s] craft’ and whether “employers spent large sums of money, and employees received extensive training.” 234 Ga. App. at 300. The court found that the employee’s minimal training did not outweigh the substantial harm of the noncompete clause. 234 Ga. App. at 301.
Also, courts are likely to uphold the value of employee training when it is combined with other factors weighing in favor of a protectable business interest. See Boisen v. Petersen Flying Serv., 222 Neb. 239, 245, 383 N.W.2d 29 (1986) (in distinguishing between “ordinaiy” and “unfair” competition, courts, frequently focus on employee’s opportunity to appropriate employer’s goodwill by initiating personal contacts with employer’s customers). For example, in Vantage Technology, LLC v. Cross, 17 S.W.3d 637, 646-47 (Tenn. Ct. App. 1999), app. denied April 17, 2000, the'court found the employer had a legitimate business interest protectable by a noncompete clause when the employee had not only received training but also had a “special relationship” with clients and was in receipt of confidential information.
During the course of her employment with AGH where she received on-the-job training, Ristow also attended training sessions or conferences off-site. The off-site training provided to Ristow, which was also received by other AGH employees, included a software training program spanning several days in length, a 2-day legislative update conference, two 2-hour webcast training sessions, and two user group meetings. AGH absorbed all of the costs associated with this training, including travel and lodging, estimated to be approximately $7,479.
Thus, based on the uncpntroverted facts, the nonexclusive training provided by AGH to.Ristow, over an approximate 7-year period of employment, was valued at $7,479. AGH has not claimed Ristow’s skills were unique. Indeed, Ristow’s duties were absorbed by existing staff once her employment was terminated. See Nigra v. Young Broadcasting, 177 Misc. 2d 664, 666, 676 N.Y.S.2d 848 (1998) (“it is worth noting that ‘unique services’ is a very slim reed which has never actually served as the sole basis for judicial enforcement of an anti-competition clause”). Overall personnel costs in the area in which Ristow worked decreased since her departure. The district court did not err in determining that the training and knowledge acquired by Ristow did not constitute a legitimate busi ness purpose to such, an extent that it supported the restrictions on subsequent employment found in paragraph 1.
Our Supreme Court compels us to view these issues carefully. Employees must necessarily take knowledge with them when they change jobs:
“A person who leaves the employment of another has the right to take with him all the skill he has acquired, all the knowledge that he has obtained, and all the information that he has received, so long as nothing is taken that is the property of the employer. . . . Skill and knowledge acquired or information obtained cannot be left behind so long as those tilings exist within the mind of the employee. All that knowledge, skill and information, except trade secrets, become a part of his equipment for the transaction of any business in which he may engage, just the same as any part of the skill, knowledge, information or education that was received by him before entering upon the employment. Those things cannot be taken from him, although he may forego them, forget them, or abandon them.” Garst v. Scott, 114 Kan. 676, 679, 220 Pac. 277 (1923).
Ristow was a supervisor who received periodic training that kept her up-to-date in her field of tax regulation of employee benefit groups. Neither her duties nor her training appear to be out of the ordinary or unique. The fact stipulations show no special relationship between Ristow and any AGH clients, nor are there any allegations that she has conveyed any trade secrets that would be the property of her former employer, AGH. The district court properly decided that it is unreasonable to enforce the covenant not to compete under these circumstances. Quite simply, AGH has no legitimate business interest here that warrants a reversal of the district court.
In stark contrast, if we choose to enforce this clause, Ristow could work virtually nowhere. Ristow was informed that, under the definition of client and center of influence, “there were veiy few places Ristow could become employed.” Although not addressed by the district court, Ristow was precluded from accepting employment not only from the clients and centers of influence of AGH but also with “Koch Industries and its affiliated companies.” This is the only place in the agreement where Koch Industries appears. Moreover, the agreement does not define or describe the “affiliated companies” of Koch Industries. Without any explanation, there is no basis for this additional company and its “affiliated companies” to be included in the agreement. As it is stated in Weber, 259 Kan. at 466: “[Restrictions must be no greater than necessary to protect the employer s interests.” We agree with the conclusions made by the district court when granting summary judgment to Ristow.
Next, AGH maintains that the question of whether Ristow’s specialized training constituted a legitimate business interest was one of fact precluding summary judgment. As a matter of law, the district court judge concluded:
“11. It takes special skill and knowledge to work on employee benefit plans, which is comparable to working with the Internal Revenue Code, and in some respects is similar to working with the Uniform Commercial Code and some very specialized laws and sets of regulations that exist. It taires a special kind of personality to deal with those things.”
While the foregoing suggests the trial judge may have relied on past experiences in arriving at his conclusion, ultimately it appears that his decision that Ristow’s training and knowledge did not rise to the level of a legitimate business interest was supported by the court’s findings of facts. See Vasquez v. Ybarra, 150 F. Supp. 2d 1157, 1161 (D. Kan. 2001) (“[W]hen confronted with a fully briefed motion for summary judgment, the court must determine whether there is the need for a trial ■— whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ ”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L.Ed.2d 202, 106 S.Ct. 2505 [1986]). We believe that is what the judge was doing here, and his is not erroneous.
Because we conclude that the covenant not to compete is unenforceable, the issue raised by AGH concerning whether the non-competition clause survived the termination of the contract is moot. Also, whether AGH could seek punitive damages need not be addressed since, by definition, that arises from a fraud claim based upon a breach of the noncompetition clause. Since we have ruled that clause is unenforceable, there can be no fraud claim.
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Marquardt, J.:
Scott Wasserman, former counsel for Derib Adugna, appeals the trial court’s order that he pay $500 of the fees owed to Marilyn Slezak, Israel A. Adugna’s attorney. We reverse.
Wasserman represented Derib in a divorce action. At the close of the trial on May 20, 2003, the trial court ordered Wasserman to prepare the decree.
During the following 2 weeks, Slezak made several calls to Wasserman attempting to obtain the decree. Israel needed the signed decree to obtain a loan to refinance her home. On June 6, 2003, Wasserman told Slezak that he would have the decree for her by June 9. However, on June 9 Slezak had not received the decree.
On June 12, 2003, Slezak delivered a draft of the decree to Wasserman’s office and asked Wasserman to sign it. Wasserman told Slezak that he would not sign the decree until Derib approved it. Wasserman faxed the decree to Derib for approval. The next day, after obtaining Derib’s approval, Wasserman provided Slezak with the signed decree. The decree was filed on June 13, 2003.
Slezak filed a motion for sanctions requesting the trial court to award her attorney fees against Wasserman for the additional work she incurred in the preparation and filing of the decree. At the hearing on Slezak’s motion, Wasserman disputed the factual allegations contained in the motion and requested an evidentiary hearing. Wasserman’s request for a hearing was denied and he was ordered to pay Slezak $500.
Wasserman moved the court to reconsider its order and grant an evidentiary hearing, which was denied. Attorney Justin Palmer appeared on Wasserman’s behalf and argued for a stay of the judgment pending the appeal. Slezak orally moved for additional attorney fees. All of these motions were denied by the trial court.
The judge pro tern stated:
“I’m not finding Mr. Wasserman in contempt on Ms. Slezak’s motion. I know I said motion for sanctions. I don’t even know that what I’ve done has risen to a sanction, if you will. As that term is sometimes used in law. I’m not finding Mr. Wasserman—I’m not imposing a penalty on Mr. Wasserman. Rather, I’m reallocating this initial cost that was imposed on Mr. Wasserman, back to Mr. Wasserman.”
Wasserman timely appeals.
Wasserman argues that the trial court had no jurisdiction to allocate costs of litigation to him when he was not a party to the divorce action. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002).
According to 60-1610(b)(4), the trial court has the authority to award costs and attorney fees to either party as justice and equity require. Further, the trial court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney’s name in the same case. Wasserman contends that if Slezak wanted a judgment against him, she would have to bring an action naming herself as plaintiff and Wasserman as defendant. He argues that the legislature has provided no other means for a judgment against him, absent a finding of contempt or a sanction.
K.S.A. 2003 Supp. 60-1610(b)(4) makes no mention of the trial court’s power to order a nonparty attorney to pay attorney fees or costs. It is well established that when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 291, 894 P.2d 777 (1995).
Slezak argues that the trial court has the inherent power to award fees against an attorney of record who fails or refuses to comply with the trial court’s orders. In support of this argument, she cites In re Daugherty, 277 Kan. 257, 83 P.3d 789 (2004), and Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 970 P.2d 526 (1998), cert. denied 526 U.S. 1112 (1999). However, the facts of these two cases are factually distinguishable from the instant case.
In re Daugherty is an attorney discipline case wherein the trial court ordered Daugherty to pay the costs of his own disciplinaiy hearing. 277 Kan. at 264.
In Kessler, the trial court sanctioned an attorney for bringing a frivolous counterclaim in an action on behalf of his client. 266 Kan. at 433. However, there is nothing in Kessler indicating that the trial court has any authority to award attorney fees against an attorney who is not a party to the litigation beyond what is authorized under K.S.A. 2003 Supp. 60-211. Kessler does not support the proposition that the trial court had jurisdiction to award fees against Wasserman.
Even though the trial court’s order might be classified as a sanction, it failed to make the required finding of bad faith. Before a court exercises its inherent power to sanction an attorney, it must provide fair notice, give that attorney an opportunity for a hearing on the record, and make a specific finding that the attorney acted in bad faith. Knutson Mortgage Corp. v. Coleman, 24 Kan. App. 2d 650, 654, 951 P.2d 548 (1997). In addition to stating that the award against Wasserman was not a sanction, the trial court spe cifically stated it was not certain that Wasserman s conduct rose to the level of a sanction.
Wasserman argues that if this court were to consider die trial court’s order a sanction, the trial court erred by not giving him the required notice. He claims that the notice of hearing for the motion for sanctions did not provide him with notice of the trial court’s intention to invoke its inherent power and sanction him. However, Wasserman provides no legal authority to support this claim. Consequently, this court need not consider this additional argument. See Campbell v. City of Leavenworth, 28 Kan. App. 2d 120, 126, 13 P.3d 917 (2000), rev. denied 270 Kan. 897 (2001).
Wasserman notes that if this court were to view the actions of the lower court as contempt, it could only be indirect contempt and would be subject to the procedural requirements of K.S.A. 2003 Supp. 20-1204a. Such requirements include a motion requesting an order for Wasserman to appear and show cause and specifically set out the facts of the alleged contempt. Here, no such motion was filed.
There is no language in K.S.A. 2003 Supp. 60-1610 that allows the trial court to order a nonparty attorney to pay the attorney fees of a party in a divorce proceeding. Without a sanction, the trial court did not have the authority to order Wasserman to pay Slezak’s attorney fees.
Wasserman also argues that he was denied his due process rights because he was denied an evidentiary hearing on the record. Because we are reversing on other grounds, we will not address this issue.
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Per Cuñara-.
This is an interlocutory appeal pursuant to K.S.A. 60-2102(b). The Chalet of Wichita, L.L.C. and B.S. Investments, Inc. (collectively the Chalet) appeal from the district court’s order denying the Chalet’s motion to dismiss plaintiff Brenda Noone’s claims pursuant to K.S.A. 60-212(b)(6). Since we are duty bound to follow Kansas Supreme Court precedent unless there is some indication that the court is departing from its previous position, and since the Supreme Court has declined to depart from its holding in Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985), and the line of cases decided since Ling, we reverse; but, in view of the evolution of the common law on this issue, we do so reluctantly.
Noone filed this wrongful death action against the Chalet and James D. Segraves on account of the death of her son, James Noone. In an amended petition, she joined B.S. Investments, Inc. as an owner or operator of the Chalet. She asserted: Segraves consumed four large 32-ounce beers at the Chalet, a restaurant and bar in Wichita. He became obviously intoxicated, and the Chalet furnished him alcohol despite his obviously intoxicated state. Shortly after midnight, Segraves left the Chalet and drove a Corvette automobile owned by Glenda Walden east on highway K-96 at speeds in excess of 90 miles per hour. Meanwhile, James Noone was a passenger in a vehicle driven by Jeremy Pawlak which turned into the eastbound lanes of highway K-96 in front of Segraves’ vehicle. Due to Segraves’ high rate of speed and his intoxication, Segraves collided with the Pawlak vehicle. Both vehicles burst into flames. Both James Noone and Jeremy Pawlak died as a result of their injuries. Segraves and his passenger, Robert Buckner, were not seriously injured.
In her petition, Noone also cited various statistics about the number of drunk driving deaths and the amount of money that could be saved if the number of drunk driving accidents were reduced. She noted that K.S.A. 41-715(a) prohibits selling intoxicating beverages to an obviously intoxicated individual. More specifically, the statute provides:
“No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is an incapacitated person, or any person who is physically or mentally incapacitated by the consumption of such liquor.”
She also acknowledged the prior Kansas Supreme Court decision of Ling but asserted that Kansas is in a shrinking minority of states which refuse to hold liquor vendors liable for injuries and damages caused by drunk drivers. Noone asked that the Kansas courts revisit Ling.
The Chalet’s answer was followed by a motion to dismiss pursuant to K.S.A. 60-212(b)(6). Citing Ling and Prime v. Beta Gamma Chapter of Pi Kappa Alpha, 273 Kan. 828, 47 P.3d 402 (2002), the Chalet asserted that under Kansas law it could not be held hable for damages caused by Segraves’ actions in driving drunk. In her opposition to the motion, Noone argued that her claims raised an issue of first impression because, unlike Ling, this case involved a commercial liquor vendor who provided alcoholic beverages to an obviously intoxicated person on the vendor’s premises. Noone also asserted that the reasoning in Ling was faulty.
Following a hearing on the motion, the district court found that Noone made a sufficient showing to distinguish her case from Ling and denied the motion to dismiss. The court found that the advent of hquor-by-the-drink increased the risk of harm and that the public policy against drunk driving was much stronger now that it was at the time of Ling. Finally, the court concluded that a vendor’s sale of alcohol to an obviously intoxicated patron increased the foreseeability of harm. This interlocutory appeal followed.
When reviewing the district court’s ruling on the Chalet’s motion to dismiss for failure to state a claim, we assume the truth of Noone’s allegations and the reasonable inferences we can draw from those allegations. We then must decide whether those allegations and inferences state a claim on the theories presented by Noone or on any other possible theory. McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, 634, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).
Ling and Its Progeny
Ling was decided in 1985. Ling claimed that Jan’s Liquors was negligent in selling alcohol to a minor contrary to state law. She alleged that after the minor became intoxicated, the minor drove a vehicle and struck her, causing injuries which resulted in the amputation of her legs. The trial court granted the defendant’s motion to dismiss.
On appeal, the Kansas Supreme Court discussed the history of dram shop liability in Kansas and the various public policy concerns involving drunk drivers. The Supreme Court noted there was no redress allowed under common law against sellers or providers of intoxicating liquors, “either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence.” 237 Kan. at 635. In the Supreme Court’s view, the proximate cause of any injury was the act of the purchaser in drinking the alcohol and not that of the vendor in selling it. 237 Kan. at 635.
The Supreme Court noted that a number of states enacted dram shop statutes which created such a cause of action and that courts in other jurisdictions had judicially abrogated the common-law doctrine of no liability. In Kansas, the territorial legislature enacted a dram shop act in 1859 and a similar statute remained in effect until 1949. See Compiled Laws of Kansas 1862, ch. 35, sec. 10; G.S. 1868, ch. 35, sec. 10; G.S. 1949, 41-1106. At that time, the legislature repealed the dram shop law and enacted the Kansas Liquor Control Act, K.S.A. 41-101 et seq., which contained no dram shop provision. The court noted the legislature had failed to reenact any dram shop provision, the most recent attempt being 1984, the year before Ling. See 237 Kan. at 635-38. Finally, the court noted that while both K.S.A. 21-3610(b) and K.S.A. 41-715(b) established criminal penalties for selling alcoholic beverages to minors, violations of these statutes do not constitute negligence per se. 237 Kan. at 639-40. In deference to the legislature, the court stated:
“[T]his court recognizes that declaration of public policy is normally the function of the legislative branch of government. Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle.” 237 Kan. at 640.
Noone argues that neither Ling nor any other published Kansas case has dealt directly with the liability of a commercial vendor who negligently provides alcoholic beverages to an obviously intoxicated consumer for on-the-premises consumption. Ling involved a liquor store which sold liquor to a minor for consumption off the premises rather than a bar which sold liquor for consumption on the premises. Noone also asserts that granting “immunity” to vendors was wrong, that the legislature’s failure to enact such legislation was meaningless, and that the enactment of more liberal hquor-by-the-drink laws has undermined Ling’s reasoning. Finally, she alleges that the hospitality industry has created a duty upon itself by training its employees in the safe and responsible service of alcoholic beverages.
Though Ling was the product of a divided court (four justices joining in concurring or dissenting opinions), in the intervening years the Supreme Court has repeatedly upheld Ling’s refusal to impose civil liability upon those whose dispensing of alcoholic beverages has lead to death or personal injuries.
One year after Ling, the Supreme Court decided Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), in which police officers were sued by third parties for allowing an obviously intoxicated person to get in his car and drive away from a bar. On appeal, the officers argued, in part, that the court should impose civil liability on the bar owners for knowingly providing alcohol to an intoxicated person. Finding Ling controlled, the court rejected this claim. 239 Kan. at 375-76.
Two years after Fudge, the Supreme Court decided Meyers v. Grubaugh, 242 Kan. 716, 718, 750 P.2d 1031 (1988), in which it cited Ling favorably and concluded that absent special circumstances, an employer owes no duty to a third party for the tortious acts of an employee who, after consuming alcohol on the employer’s premises, leaves and injures a third party. 242 Kan. at 724.
That same year, the Supreme Court answered a certified question from tire federal district court in Thies v. Cooper, 243 Kan. 149, 150, 753 P.2d 1280 (1988), as to “whether ... an employer who makes available free cereal malt beverages in uncontrolled amounts to its employees on the employer’s premises may be held liable for all foreseeable consequences of its acts and omissions, including torts committed by employees while driving home from the workplace in an intoxicated condition.” The Supreme Court rejected cases from other jurisdictions, finding Ling and Meyers controlling. The court noted that since Ling, the Kansas Legislature had failed to enact legislation to modify the common-law rule of no liability. 243 Kan. at 155-56.
Three years after Thies and Meyers, the Supreme Court decided McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980 (1991), an action for personal injuries sustained in an accident with a drunk driver. The trial court granted summary judgment in favor of two defendants who were alleged to have taken the obviously intoxicated driver to his car. The Supreme Court concluded that imposing liability on these defendants would be “illogical and against public policy” since under Ling the provider of alcohol had no liability. Thus, the court concluded, it would make no sense to impose liability on someone “who merely transported an intoxicated person to his automobile.” 248 Kan. at 442.
The following year, the Supreme Court decided Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992). In Mills, decided 5-2, the plaintiffs brought a wrongful death action for the death of their minor son whom they alleged was illegally furnished alcohol by several vendors until he became intoxicated. When Mills became disruptive, he was asked by the management, with the assistance of local police officers, to leave. After leaving the bar, he walked into a nearby field where he was found frozen to death the next day. The parents sued the vendors, the city, and the police officers for negligence. The trial court granted summary judgment to the vendors based on Ling and subsequent cases. On appeal, the Supreme Court noted that Ling involved a vendor being sued by a third person injured by an intoxicated tortfeasor, while the Mills case arose from the death of the alcohol consumer himself. However, citing Ling, the court concluded that neither K.S.A. 41-715 nor K.S.A. 21-3610 was intended to create civil liability for violation of their provisions. 251 Kan. at 438-43. While Mills recognized the strong public policy to keep intoxicating liquor from minors, the court concluded:
“We conclude that in enacting 21-3610, the legislature did not intend to impose civil liability for violations thereof. If such liability is to be imposed, under some or all circumstances, then we conclude, as we did in Ling, that this is a decision to be made by the legislature.” 251 Kan. at 443.
Most recently, in 2002, the Supreme Court decided Prime, 273 Kan. 828, in which plaintiff, a minor, consumed excessive amounts of alcohol at a fraternity initiation and was hospitalized. The trial court granted summary judgment to the fraternity and its members. On appeal, a unanimous Supreme Court concluded, pursuant to Ling, that there is no cause of action against suppliers of alcohol for persons injured as a result of intoxicated patrons. The court in Prime rejected the plaintiffs attempts to distinguish Ling as inapplicable to fraternity liability cases and found that Ling and Mills controlled. 273 Kan. at 834-37.
It is readily apparent that to date the Supreme Court has repeatedly interpreted Ling broadly to apply to any effort to hold third persons liable for the torts of an intoxicated person or for violations of the liquor control statutes. We are duty bound to follow Kansas Supreme Court precedent unless there is some indication that the court is departing from its previous position. State v. Maybin, 27 Kan. App. 2d 189, 205, 2 P.3d 179, rev. denied 269 Kan. 938 (2000). We have no indication that the Supreme Court is departing from its consistently broad application of Ling.
The Legislature’s Failure to Act
Finally, Noone argues that the legislature’s failure to enact dram shop legislation is not meaningful. The court in Thies thought the contrary. Legislative inaction is not necessarily indicative of legislative intent. See U.S.D. No. 501 v. Baker, 269 Kan. 239, 247, 6 P.3d 848 (2000). However, Noone must confront the fact that in the past the legislature enacted and then repealed a dram shop hability statute and has since failed to reenact such a law. Most recently H.B. 2296, initiated in 2003, would have created a cause of action against a liquor licensee for breach of duties created by K.S.A. 21-3610 or K.S.A. 41-715. This bill was carried over to 2004, but no action was taken after hearings before the House committee on February 19, 2004. A nearly identical bill was passed by the Senate in 2004, but it failed in tire House.
Given our duty to follow current Supreme Court precedent, we are compelled to reverse the trial court’s denial of the motion to dismiss. We do so reluctantly because changes in Kansas liquor laws and the growth and development of the hospitality industry, as noted by the district court, and the evolving trend of the common law on this subject throughout much of the nation directs us down a path away from Ling. We note four of the signposts along that path that ultimately may direct Kansas away from Ling.
First, an examination of the rationale of Ling reveals that its singular legal basis is the common law. The Supreme Court relied upon the common-law rule that suppliers of alcohol are not liable to the victims of an intoxicated tortfeasor. It then announced, in an apparent non sequitor, that the legislature is best equipped to handle such matters of public policy. 237 Kan. at 640. Recognition of the evolution of the common law is not achieved solely through legislation. Ling itself recognizes this:
“The common law remains in force in this state where the constitution is silent or the legislature has failed to act. K.S.A. 77-109. However, the common law is not static. It is subject to modification by judicial decision in light of changing conditions or increased knowledge where this court finds that it is a vestige of the past, no longer suitable to the circumstances of the people of this state. Indeed, we have not hesitated to adopt a new cause of action by judicial decision where we have determined that course was compelled by changing circumstances. [Citations omitted.]” (Emphasis added.) 237 Kan. at 640.
Deferring all development of the common law to tire legislature maltes no sense because common law, by definition, is “the body of law derived from judicial decisions, rather than from statutes or constitutions.” Black’s Law Dictionary 293 (8th ed. 2004). Common law is “judge-made” rules as opposed to statutory rules. Black’s Law Dictionary 294. Even K.S.A. 77-109 recognizes that while statutes may modify our common law, the common law can properly be modified by judicial decisions. When the vast majority of American jurisdictions have repudiated the former common-law rule of no liability under these present circumstances, what is the common law today? The fundamental characteristic of the common law is its continuously developing jurisprudence. For us to honor and apply an antiquated and outdated principle of common law in deference to the legislature is to avoid our clear responsibility as judges. We respectfully suggest that the Ling court’s observation that “the legislature is best equipped to handle” such matters ignores the co-equal duty of the judiciary to consider, modify, and thereby redirect the course of our evolving common law. It is precisely such inappropriate deference to the legislature that nearly isolates Kansas today on the question before us.
Second, as noted in the dissent in Ling, the legislature has already declared public policy in such matters by criminalizing the sale of alcoholic liquor to any person who is physically or mentally incapacitated by the consumption of liquor in K.S.A. 41-715. For the judiciary to await a specific statute declaring civil liability for the same act creates an inexplicable anomaly: your sale of liquor to a drunk can land you in jail, but it will never expose you to civil liability, no matter the consequences. The fundamental logic of the law should compel us to recognize the legislature’s clear expression of policy in enacting K.S.A. 41-715 and to act consistent with that policy when considering this “criminality but no civil liability” anomaly.
Third, in its refusal to recognize a cause of action under these circumstances, our Supreme Court has carved out an unauthorized exception to, or an unauthorized immunity from, the clear legislative mandate set forth in K.S.A. 60-1901, which states that “[i]f 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 . . . against the wrongdoer.” This statute has been uniformly applied to all persons except one who dispenses alcoholic beverages in the context of Ling and its progeny. Is this not an odd exception? Is not this exception or immunity itself an expression of public policy that those who dispense liquor are a unique, special, and protected group which, by Supreme Court fiat, is entitled to be exempt from a law of universal application? In its deference to the legislature, the court in Ling requires a statutory construction and application of K.S.A. 60-1901 et seq. that is usually avoided by our courts, if not prohibited by K.S.A. 77-109, which requires statutes in derogation of the common law to be liberally construed to promote their objective. In fact, one may argue that Ling’s judicially carved-out exception to our wrongful death statute is far more intrusive into the legislative function than the recognition of an evolving common law that imposes civil liability on sellers of liquor under circumstances such as presented here.
Finally, we respectfully suggest that Ling is bad public policy. Kansas is now one of only eight states that do not recognize civil liability under these circumstances. We agree with appellee, who posits:
“It is now time. A recent NHTSA [National Highway Traffic Safety Administration] study lists Kansas as No. 10 among states for drinking-related deaths per mile driven. In 1991, thirty-nine percent of all traffic deaths in Kansas were caused by drunk drivers. Drunk drivers caused two-hundred deaths and more than five-thousand, one-hundred injuries in Kansas during 2001. NHTSA has determined that if Kansas would enforce its laws prohibiting the sale of alcohol to minors or obviously intoxicated persons, there would be an eleven percent decrease in the number of alcohol related fatalities annually. Enforcement of this law, K.S.A. 41-715, could save twenty lives each year. Give these startling statistics and the judiciary’s unique vantage point in seeing the civil and criminal prosecutions arising from this carnage, the courts should be sensitive to any remedies that may reduce these tragedies.”
Nevertheless, in recognition of our duty to abide by the rule of law announced in Ling and its progeny, we reluctantly reverse the ruling of the district court.
Reversed. | [
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Greene, J.:
The State of Kansas filed this interlocutory appeal challenging the district court’s order suppressing evidence resulting from a warrantless search incident to a traffic stop. The evidence resulted in the arrests of Eric Schneider and Zachary Ayers, who were charged with drug-related offenses. We affirm the district court.
Factual and Procedural Overview
On December 16, 2002, Investigator Gary Hanus of the 1-135/ 1-70 Drug Task Force received a phone call from Richard Peppers, an in-store protection specialist at a Salina Target store. Peppers reported that he had observed two white males, later identified as defendants Eric Schneider and Zachary Ayers, talking in the cold pill aisle as they each picked up two packages of cold tablets containing pseudoephedrine. One of the males waited outside in a truck after he purchased two packages of cold tablets, while the second male walked around the store and purchased some toys, football cards, and shampoo in addition to the two packages of cold tablets. Peppers observed the second male get into the truck, and the two men left the parking lot together. Peppers advised Hanus of the truck’s tag number.
Investigator Jeremy Watkins arrived at the Target store and followed the truck to see if the men were going to any other stores to purchase other ingredients to manufacture methamphetamine. Watkins followed them to a Kwik Shop where he apparently observed no suspicious conduct, and then he continued to follow the truck as it turned northbound on 1-135. He observed that the driver of the truck did not use a turn signal in turning north onto 1-135, and after communicating this to Investigators Hanus and Burr, the decision was made to call the Salina police department to have a marked vehicle stop the truck. Watkins had observed no other traffic infractions up to this point. Deputy James Fletcher eventually stopped the truck on westbound 1-70 some 15 miles beyond Salina and considerably after the signal violation.
Deputy Fletcher made contact with Schneider, the driver of the truck, while Trooper Derric Thompson made contact with Ayers, the passenger. Fletcher informed Schneider that drug task force investigators had observed him fail to use a turn signal, and Schneider and Ayers were both asked to come to the back of the truck to speak with the investigators. Deputy Fletcher did not request Schneider s driver’s license, registration, or proof of insurance. When Ayers exited the vehicle, the passenger door remained open. Investigator Watkins testified that Ayers left the door open, while Ayers testified that Trooper Thompson held the door open as he exited the vehicle and prevented him from closing it.
After Schneider agreed to speak with him, Investigator Hanus informed him that he wished to discuss Schneider’s purchase of the cold pills. Hanus did not inform Schneider of his Miranda rights at this time. Schneider admitted the traffic infraction but stated that he did not have any items associated with a methamphetamine lab. Hanus then asked Schneider for permission for Deputy Fletcher to search the truck for any drugs, drug paraphernalia, or methamphetamine lab-related materials. Schneider refused to give consent to the search.
Deputy Fletcher subsequently advised Investigator Hanus that he observed what appeared to be a gassing generator, an item used in manufacturing methamphetamine, in the pouch of the open passenger door of the truck. Schneider advised Deputy Fletcher that the item was in fact a methamphetamine smoking pipe. Investigator Hanus admitted that had the passenger door not been held open, the officers would not have been able to observe the pipe.
During this time, Ayers agreed to speak with Investigator Watkins, who questioned him about the purchase of the cold pills. Ayers stated that he would not have purchased two boxes of the cold pills if he had known it was illegal. Watkins informed Ayers that it was suspicious but not illegal, and requested consent to search Ayers’ person for illegal drugs and weapons, which was given. In conducting the pat-down search, Watkins questioned Ayers about a large lump in Ayers’ pocket. Ayers stated that it was money and agreed to let Watkins retrieve it. Watkins reached into the pocket and pulled out several wadded-up bills and a small baggie of marijuana.
Schneider and Ayers were taken into custody and a subsequent search of the truck yielded drug residue, various items of drug paraphernalia, and other items associated with the manufacture of methamphetamine. Schneider and Ayers were charged with one count each of possession of methamphetamine, contrary to K.S.A. 65-4160; possession of marijuana, contrary to K.S.A. 65-4162; and possession of drug paraphernalia, contrary to K.S.A. 65-4152. Schneider was charged with an additional count of failure to signal a turn, contraiy to K.S.A. 8-1721.
Schneider and Ayers filed pretrial motions to suppress, alleging that the officers lacked reasonable suspicion to stop Schneider’s truck and that the subsequent detention, search, and seizure were unlawful. At the suppression hearing, the State argued that the officers had sufficient reasonable suspicion to stop the defendants due to the nature of the items they purchased and the manner in which they purchased them. Alternatively, the State argued that even if the officers lacked reasonable suspicion, they conducted a valid traffic stop of the defendants based on the traffic infraction and observed the methamphetamine pipe in plain view.
After hearing evidence, the trial court found that the officers lacked reasonable suspicion to stop the truck based on the purchase of the cold pills. The court noted that even if the defendants were properly stopped for the traffic infraction, their detention was not related to the traffic stop and that without Trooper Thompson’s actions, the methamphetamine pipe would not have been in plain view. The court held that the search of the truck was unlawful and suppressed everything found during the search of the truck and any statements made by the defendants as a result of the search. The court held that the marijuana found on Ayers would be admissible.
The State timely filed an interlocutory appeal.
Standard of Review
On a motion to suppress evidence, this court reviews the facts underlying the district court’s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. Although this court does not reweigh the evidence, the ultimate determination of the suppression of evidence is a legal question requiring the appellate court’s independent determination. State v. Gray, 270 Kan. 793, 796, 18 P.3d 962 (2001).
The Traffic Stop, Even if Justified, Was Not Reasonably Related in Scope to the Justifying Circumstances.
K.S.A. 22-2402(1) provides that “[w]ithout making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.” This statute is a codification of the Fourth Amendment search and seizure principles expressed in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). State v. Field, 252 Kan. 657, 659, 847 P.2d 1280 (1993). The stop of a moving vehicle always constitutes a seizure; thus, to make such a stop an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. Terry, 392 U.S. at 19; State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990).
“ ‘A traffic stop is a seizure within the meaning of the Fourth Amendment, “even though the purpose of the stop is limited and the resulting detention quite brief.” [Citation omitted.] An ordinary traffic stop is, however, more analogous to an investigative detention than a custodial arrest. We therefore analyze such stops under tire principles pertaining to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first “whether tire officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in fire first place.” [Citations omitted.]’ ” State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998).
At the outset we question even the pretextual traffic stop, since a significant amount of time passed between the alleged minor traffic violation and the ultimate stop. For purposes of our analysis, however, we will presume that the stop was appropriate based upon the minor traffic infraction. Although the stop of Schneiders vehicle may have been lawful, the scope of the detention clearly went beyond that which is allowable in conducting a traffic stop.
“A law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. ... In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.” Mitchell, 265 Kan. at 245.
Where the officer conducting a routine traffic stop has no reasonable suspicion that the operator has engaged in criminal activity, the operator is entitled to operate the vehicle and to proceed on his or her way, without being subject to further detention for additional questioning. Mitchell, 265 Kan. at 245.
We recognize that after a vehicle is lawfully stopped for a traffic violation, the police officer, even without suspicion of an additional crime, can order the motorist to get out of the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977). The problem in the present case began once the defendants got out of the vehicle and were questioned about the cold pills rather than the traffic infraction. Schneider was never asked for his driver s license, registration, or proof of insurance, and there was no indication that the officers planned to issue Schneider a citation for failure to signal. The officers’ conversations with the defendants related almost entirely to their purchase of the cold pills, whereas the only arguable lawful reason the officers had to stop Schneider’s truck was based on the traffic infraction.
In the absence of reasonable suspicion of criminal activity unrelated to the circumstances of the pretextual traffic stop, further detention' and search was unreasonable.
The Officers Knowledge of Recent Cold Pill Purchases Was Legally Inadequate to Form a Reasonable Suspicion of Criminal Activity.
The State contends that the search was reasonable because the information previously relayed to Investigator Hanus regarding the defendants’ behavior and purchase of the cold pills was sufficient to constitute reasonable suspicion of criminal activity, based on Hanus’ training and experience. The district court rejected this contention, commenting:
“I’m finding it just a little bit difficult to find articulable suspicion that a crime was being committed or about to be committed based on the fact that two different people each purchased two packages of cold pills in the context of at least one of them purchasing other personal items. Frankly I find that a little scary; that that contact or that that circumstance would create an articulable suspicion that this perfectly legal transaction was being done for an illegal purpose.”
While it is a crime under K.S.A. 65-7006(a) to possess ephedrine or pseudoephedrine with the intent to use it to manufacture, a controlled substance, the defendants’ purchase of the cold pills alone is not sufficient to constitute reasonable suspicion that they intended to commit a crime. While this court has held that possession of two individually innocuous items could be deemed drug paraphernalia when considering that the two items were found in the same bag at the same time, State v. Daniels, 28 Kan. App. 2d 364, 370, 17 P.3d 373 (2000), rev. denied 272 Kan. 1420 (2001), this court has never held that the mere purchase and possession of two packages of cold pills containing pseudoephedrine is sufficient evidence to infer criminal intent. We agree with the district court in finding the State’s position “a little scary.”
Neither of the defendants purchased any additional items associated with the manufacture of methamphetamine, and the fact that two defendants purchased the cold pills at the same store does not provide any basis to support the inference that the defendants intended to use them to manufacture methamphetamine. Officer testimony in the record stating that the officers were “looking for a traffic infraction,” indicates that they initially believed that they could not conduct a stop based solely on the information about the cold pills. They were correct.
The Search Was Not Permissible Based On the Theory of Inevitable Discovery.
The State also contends that the officers would have been able to search the vehicle based on the theory of inevitable discovery after marijuana was found on Ayers.
“Evidence obtained unlawfully in violation of a defendant’s constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of the evidence that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means.” State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 4, 784 P.2d 381 (1989).
The State’s inevitable discovery argument would have merit if the officers had questioned the defendants solely about the traffic infraction prior to the marijuana being found in Ayers’ pocket. Similarly, if the officers had observed the meth-amphetamine pipe in plain view as the defendants exited the vehicle, prior to being questioned about the cold pills, the subsequent search of the vehicle would likely be justified by the plain view exception to the search warrant requirement. These are not the facts present here. The testimony at the suppression hearing indicates that Ayers was searched after being questioned about the cold pills and that Deputy Fletcher observed the pipe after the nature of the detention had become unlawful. Moreover, the trial court appeared to believe Ayers’ testimony that he tried to close the truck door, but Trooper Thompson prevented him from doing so. The pipe would not have been in plain view absent the officer’s conduct.
When the officers began to question the defendants about the cold pills, it clearly changed the nature of the detention, exceeding that which is permissible for a traffic stop, and the legal purpose of the stop, the traffic violation, was largely ignored. Because the stop became unlawful as soon as the officers began questioning the defendants about the cold pills, it is irrelevant whether the passenger door was left open by law enforcement or by defendant Ayers. Once a traffic stop has become an unlawful detention, evidence thereafter discovered is not admissible based on the inevitable discovery exception. The trial court properly granted the defendants’ motions to suppress.
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Hill, J.:
In this personal injury case, Marlene Jackson asks us to reverse the district court’s order granting summary judgment to the City of Norwich (the City). Jackson was injured after she stepped into a depression in the earth around a covered water valve in an open area in a city park in Norwich. After concluding that there is no evidence of reckless and wanton conduct on the part of the City, we affirm.
The parties do not dispute the facts. Highly summarized, the record reveals that Jackson attended a ball game at the City Park in the City on June 29, 2000. After the game was over and the lights for the ball field had been turned off, Jackson walked across the park and, in a grassy area between the ball diamond and the swimming pool, stepped sideways into a depression in the earth around a covered water valve. The cover was at a lower elevation than the surrounding ground. The deepest part of the depression was approximately 5-6 inches. The water valve cover and surrounding ground had been essentially in the same condition for more than 13 years.
Jackson’s ankle rolled, and she suffered damaged ligaments and tendons and a stress fracture of her ankle. Ultimately, her injuries resulted in reflex sympathetic dystrophy. Jackson filed suit, seeking damages for medical expenses, pain and suffering, lost earnings, and lost consortium.
The district court granted the City summary judgment, ruling that Jackson’s claim was barred by the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., and our statute of repose. Jackson contends that both rulings are erroneous.
Our summary judgment rules are well known and frequently quoted:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
We will therefore apply the same rules as the district court and see if reasonable minds could differ from the conclusions of that court.
In K.S.A. 2003 Supp. 75-6104, the KTCA provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
Jackson, the City, and the district court all agreed that since she was injured in an open area used for recreational purposes, Jackson had the burden to show that the City was guilty of gross and wanton negligence. In support of her position against summary judgment, Jackson raised three disputed factual contentions that she believed should be questions for a jury to decide:
• whether Jackson was walking forward or backward at the time of her injury;
• whether the physical feature which caused Jackson’s injury was a hole or depression; and
• whether the lights on the street or the ball diamond were on at the time of her injuiy.
We do not see how these factual contentions help Jackson. Assuming that there is a dispute regarding how Jackson was walking, it is not material to the issue of whether the City was guilty of gross and wanton negligence proximately causing her injury. The same is true regarding the “hole versus depression” argument. Whatever label Jackson seeks to put on the area, she offers no facts that controvert the facts submitted by the City. The facts regarding the conditions of the area in the park remain undisputed.
The City argues that the issue of the availability of light at the scene is a manufactured dispute. Jackson’s husband stated there was enough light to see the depression clearly when he walked up to help his wife after her fall. Jackson did not allege the lack of lights was the basis of the negligent act by the City; therefore, the availability of light in the area is not a material fact to be determined by the jury.
Jackson also contends that it is up to the jury to decide whether the City committed gross and wanton negligence that proximately caused her injury. Jackson believes that she has proven the City had knowledge of the dangerous condition associated with the hole at night and, therefore, the question should go to the jury. She contends that the testimony of the city maintenance worker who mowed that area of the park in the summer, used a weedeater on grass around the indentation, and removed debris from it proves that “the City was aware that danger could occur because of visibility issues” and “signage or extra precaution should have been used around the hole.”
A similar argument was raised unsuccessfully by the plaintiff in Robison v. State, 30 Kan. App. 2d 476, 43 P.3d 821 (2002). Robison slipped and fell and sustained injuries in a wet hallway between a swimming pool and a locker room in a building owned by the State. The trial court granted the State summary judgment and this court affirmed, ruling that the recreational use exception under 75-6104(o) barred the action. Robison argued the evidence of gross and wanton negligence overcame the recreational use exception. This court disagreed and held:
“Wanton conduct is established by the mental attitude of the wrongdoer rather than by the particular negligent acts. Friesen v. Chicago, Rock Island & Pacific Rld., 215 Kan. 316, 322, 524 P.2d 1141 (1974). Wantonness requires that there be a realization of imminent danger and reckless disregard, indifference, and unconcern for probable consequences. 215 Kan. at 323.” 30 Kan. App. 2d at 479.
Just as in Robison, Jackson has failed to come forward with any evidence that the City in this case had realized there was imminent danger but nevertheless recklessly disregarded concerns for probable consequences of how it maintained the area around the water valve. See Robison, 30 Kan. App. 2d at 479. Jackson is not successful in proving the City’s knowledge of any dangerous condition in the park or in establishing gross and wanton negligence by the City. We find no error in the district court’s order granting summary judgment to the City. Recause we are affirming the district court on this basis, we need not review the issue raised concerning the statute of repose.
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The opinion of the court was delivered by'
Graves, J.:
While the face of the record and the requests for instructions-made by the railway company show that it denies the negligence imputed to it, yet. in the argument this point is not seriously contested.. It may therefore be assumed that the railway company was guilty of negligence by failing to sound a whistle, or bell while passing through the town and when approaching the crossing where the accident in question, occurred. The real controversy arises, therefore, upon, the question whether or not Arthur Assman was guilty of contributory negligence which bars a recovery.
The time when the train arrived at the crossing was. about 9 o'clock on a moonlight night in August. There was a mill near the crossing in operation, which would to some extent» deaden the sound of an approaching train. Assman was driving a team of young horses, and hauling a load of coal. He was seated in a spring-seat, which was on the top of double sideboards. He expected a train. He was familiar with the crossing- and had passed over it several times that day. His team traveled in a rapid walk. When at a curve in the road 107 feet from the crossing he stopped, looked and listened for a train; observing nothing, he proceeded,, looking and listening as he went. When fifty feet from the crossing he again stopped and looked and listened' for a train, and not hearing or seeing any again moved ^forward toward the crossing. At a point nineteen feet from the crossing there is a culvert. When within six feet of the culvert Assman looked first to the west for a train, then to the east, and when his horses reached the culvert they began to jump, and were at the crossing when Assman first saw the train, which rushed by and inflicted the injuries of which complaint has been made. The train was running at the rate of from fifty to sixty miles an hour. It was a freight-train, about 500 feet long. Trees, section-house and box cars on the side-track obstructed the view west of the crossing. The box cars were standing on the east end of the ■ side-track so they would just clear the main line. Two witnesses, Ed Assman and George Scheiderman, testified that they located themselves in a buggy, with the horses on the culvert, nineteen feet north of the crossing where the plaintiff’s horses began to jump, when box cars were on the side-track as at the time the accident occurred, and saw, while in that situation, a train come in from the west, and it could not be seen by them until it had passed the east end of the sidetrack, and the main line could not be seen west of the switch. This shows that when Arthur Assman crossed the culvert, and just before his horses began to jump, no train was visible from his location.
Against these facts stand the findings of the jury founded upon measurements made after the accident. It will be seen that the points in Assman’s line of travel from which the measurements were made cover only nine feet. Three points were selected: one eighteen feet, another twenty-one feet, and the last twenty-seven feet from the crossing. No estimates are given from points where it appears that he looked or anywhere else from which it is claimed that he might have seen the approaching train. These findings are not inconsistent with those which show that a train could not be seen from the several points where Assman is found to have looked and listened. It is urged, however, that had Assman looked from either of the points fixed by the measurements he must have seen the train, and could have avoided the injury, and therefore must be held to have been guilty of contributory negligence which will bar a recovery. These three points are the only places at which it appears that a train could have been seen. They are found within a space of nine feet. It appears that Assman looked to the west just before his horses were on the culvert, which is nineteen feet from the crossing. He must have been very close to one or more of these points when he looked. The burden of proof is upon the railway company to establish the alleged contributory negligence.
It does not appear that Assman knew on the night of the injury where the points were from which an approaching train could be seen, as subsequently discovered by the engineer who made the measurements. He was generally familiar with the crossing, it is true, but the box cars on the side-track were an obstruction to the view, and it does not appear that they had been in that exact location for such a time that he would be familiar with their effect upon observations from near the crossing, as if they had been a permanent object, like a house or hedge fence. It should not be assumed, therefore, that his failure to find these points of view and his omission to look therefrom were due to indifference or negligence. It has been shown that he expected a train, and stopped, looked and listened several times. His conduct throughout was that of a cautious and careful traveler in the exercise of at least ordinary vigilance to avoid injury. The fact that he did not look after his horses began to jump was due to the necessity of managing his team. He was then within nineteen feet of the crossing, and it was important to be in control of the horses if possible. Nor should he be held to the exercise of such care in looking and listening or in the management of his team, without warning, as would be exercised by a person who was. expecting a train running at such a high rate of speed. He had a right to assume that an approaching train would comply with the law by sounding the required signals at the crossing, and would run at an ordinary speed.
The jury, upon consideration of all the circumstances, have found that Assman was in the exercise of ordinary care. This finding has been approved by the trial court. We think the finding should not be disturbed. The judgment of the district court is affirmed.
Johnston, C. J., Mason, Smith, Benson, JJ., concurring. | [
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The opinion of the court was delivered by
Graves, J.:
J. D. McBrian, the plaintiff, is chaplain of the state penitentiary. The defendant is auditor of the state. The warden and board of directors of the penitentiary employed the plaintiff to superintend a prison school for thirty dollars a month in- addition to his salary as chaplain. Plaintiff performed these services from November 4, 1907, to March 18, 1908, and was paid therefor, except the sum of eighteen dollars. This last amount the state auditor refused to allow, and declined to issue a warrant upon the treasurer therefor. Thereupon the plaintiff commenced this action in this court, praying that a writ of mandamus be allowed to compel the auditor to perform such official act.
The case is submitted upon the pleadings and certain facts conceded to be true, from which it appears that the plaintiff, at the time the services in question were rendered, was the regular chaplain of the state penitentiary, holding such office under the provisions of law relating thereto and receiving the salary provided thereby. These statutes, so far as material to the question in controversy, are sections 7029 and 7046 of the General Statutes of 1901, which read:
“The officers of the penitentiary shall consist of one warden, who shall reside at the penitentiary, one clerk, one physician and surgeon, one chaplain, one deputy warden, and such keepers as the warden and directors shall deem to be requisite.' No other person except convicts shall be boarded at the penitentiary.
“The chaplain shall have charge of the spiritual wants and condition of the convicts. He shall preach to the convicts at least once every Sabbath himself, unless prevented by sickness, in which case he shall furnish a regularly ordained preacher. He shall be the librarian of the penitentiary, and shall have charge of the books and the distribution and management thereof, and shall devote his whole time to the intellectual and moral improvement of the convicts.”
By chapter 20 of the Laws of 1907 appropriations were made for the maintenance of the state penitentiary, and among the items in the schedule were the following (§ 1) :
1908. 1909.
•“Chaplain........................ $1,000 $1,000
Prison school and library.......... 2,000 2,000”
It does not appear that a school had been established .at the prison prior to this appropriation, and no provisions were made directing how the sum appropriated ■should be used. The warden and the board of directors ■organized a night school and employed the chaplain to superintend it, as before stated. The auditor declined -to allow the claim for the services rendered by the chaplain as superintendent of the school, for the reason that the law required his whole time to be devoted to bis duties as chaplain and his salary was fixed as full compensation therefor. The words “shall devote his whole time to the intellectual and moral improvement of the convicts” (Gen. Stat. 1901, § 7046) are claimed to justify this conclusion.
The -chaplain insists that the services rendered by him as superintendent of the school were not such as were contemplated by the statute which created the office of chaplain and prescribed the duties thereof; that they were rendered after night, when his official labors had ended for the day, and therefore no reasonable objection could be offered to his being employed and paid for such service, the same as a person not otherwise employed by the state.
We think the language of the statute relied upon by the auditor was used for a purpose which should be fully recognized and strictly enforced. It seems clear that by this language it was intended to secure the undivided care and attention of the chaplain in the performance of his official duties. It is conceded by the plaintiff that the service in controversy is independent and outside of his duties as chaplain. It follows, therefore, that he might have been employed in performing some part of his official work when engaged in this out side service. If he may be permitted to perform this extra service and receive additional compensation therefor, there will be no certain and adequate standard by which to determine when the performance of extra work is of sufficient magnitude to become a violation of the statute.
It seems that the full purpose of this statute can only be secured by construing the statute’ strictly and holding that the words “his whole time” mean “all” of his time. The state pays the chaplain $1000 for his services, and requires him to devote his whole time to the performance of his official duties. By this is not meant that he shall at all times be engaged in the performance of some work incident to his office, but that he shall not engage in any other employment. Otherwise he might be engaged for compensation in preparing sermons to be delivered elsewhere, or for publication; and he might engage in other literary work to such an extent as to impair materially his efficiency as chaplain. The present prison policy of the state is to reform the convicts as far as possible, and to that end it employs a chaplain, who agrees to give his whole time to their moral and intellectual development; and it is not unreasonable that he should do so. The case here presented is an extreme one. The services as superintendent of the night school are performed when the chaplain would probably not be engaged in any official duty. No material injury is suffered by'the state. Moreover, the chaplain would seem to be an eminently proper person for a superintendent- of the school, and his services are less expensive than if a specially qualified person were employed to perform them. Strictly speaking, however, the time so devoted by the chaplain belongs to the state and is paid for by his salary; and this is a sufficient reason why the state should not be called upon for further payment. We think the auditor was justified' in his action.
The writ is denied. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff recovered judgment for the death of her husband, who was an employee of the railway company. Defendant brings error.
On January 28, 1904, Robert T. Bentley, a track-repairer, was run over and killed by an engine and tender in the yards of the company at Conway Springs. At the time of the accident the railway company maintained at Conway Springs a roundhouse, situated on a switch leading to the main track, and on the main track a coal-chute and storage bins, where engines were supplied with coal. The chute was a high, covered structure, having a track extending through the center,' and was equipped with pockets in which various amounts-of coal were placed for the purpose of dumping the same into the tenders of engines when needed. The main track extended east and west, and the chute was on the north side of this track. The switch leading to the roundhouse joined the main track at a point 750' feet west of the place where the deceased was struck, which was on the main track, near the coal-chute. For 600 feet west of this place the track was straight,, thence curving slightly to the north. It was the custom each morning, at about eight o’clock, for an engine to-leave the roundhouse, enter the main track at the; switch, and go to the chute for coal. After entering the main track the whistle would be sounded, the number of blasts indicating to the men at the chute the number of tons of coal required. Thereupon one of the men in charge at the chute would quit his work and descend by a stairway from the chute and take a position in front of the pocket containing the required amount of coal.
The morning of the accident was cold, with a strong wind blowing from the northwest. The engine left the roundhouse in charge of the roundhouse foreman and a hostler’s helper. After entering the main line it started east, and four blasts of the whistle were sounded as a signal for the amount of coal required. Steam was cut off and the engine was running at four to five miles an hour. The track was slightly down grade to the place where the accident occurred.
The deceased had been at work that morning with other employees at a point near where he was struck. The foreman was not with them at that time. There was some difficulty found in tightening one of the bolts, and they left this place and were all at work on the track about 250 feet west of the chute when the foreman returned. The deceased took the foreman back to the former place to show him where the trouble was, and the testimony of the foreman, who was a witness for defendant, is that after examining the bolt he directed the deceased to go to the hand-car, which stood 165 feet east, and get a track chisel. This was two minutes before the accident. After giving the order he turned and left deceased there, and never saw him again alive. The foreman was walking along the track 250 feet west of where he left the deceased when the engine passed him going for coal. The testimony showed that the track chisel had not been taken from the hand-car. The track wrench with which deceased had been at work was found lying north of the rail near the place where the bolt was out, and some spots of blood were found on the north rail a few feet east of the same place. The deceased was not seen by any one until his body was discovered under the engine by the man who had left the coal-chute upon hearing the signal for coal and who had come down to the ground and taken a position at one of the coal-pockets.
It is contended that the evidence failed to show that deceased was at work on the track at the time he was struck; that the inference from plaintiff’s testimony is that deceased was either walking upon or stepped upon the track directly in front of the approaching engine, and was. therefore guilty of contributory negligence. It is argued on these grounds that the court should have sustained a demurrer to the evidence. We think there was sufficient evidence to warrant the court in submitting to the jury the question whether the deceased was at work on the track, and also whether there was contributory negligence. Defendant not only failed to stand upon the demurrer, but offered proof showing that the deceased had been at work at this place on the track within two minutes of the time he was struck, and that he was specially interested in tightening the bolt there. It was conceded in the brief that defendant’s testimony “served to clear up some of the circumstances surrounding the accident.” As the situation of the deceased could only be shown by circumstantial evidence, we think defendant supplied any deficiency there might have been in plaintiff’s proof and it is not in a position to claim that there was error In overruling the demurrer. (Pine v. Bank, 63 Kan. 462, 465, 65 Pac. 960; Woodmen Circle v. Stretton, 68 Kan. 403, 75 Pac. 472.)
In answer to special questions the jury found that the engine was running at from four to five miles an hour; that no other signal was given except the signal for coal, which was sounded from 550 to 750 feet west of the place of the accident; that the employees in charge of the engine failed to keep a lookout, and never saw deceased; that he had not gone after the chisel but was at work on the track at a point about forty feet west of the coal-chute, and was prevented from hearing the approach of the engine by the wind blowing about the coal-bins and chute. We are asked to say that as a matter of law the deceased was guilty of contributory negligence. This we can not do. The evidence, though circumstantial, supports the finding of the jury that he was at work on the track in the discharge of his duty. True, his position was one of danger, but whether he was negligent in failing to take such precautions as would. warn him of the approach of the engine was a question for the jury to determine, under the circumstances in evidence. (Comstock v. U. P. Rly. Co., 56 Kan. 228, 42 Pac. 724.) The same degree of diligence is not required of one whose duty compels his presence upon the track as is required from a traveler about to cross. (Ominger v. N. Y. Cen. & Hudson R. R. Co., 11 N. Y. Supr. Ct. 159; Goodfellow v. Boston, Hartford & Erie Railroad Company, 106 Mass, 461; Baltimore, etc., R. Co. v. Peterson, Adm., 156 Ind. 364, 59 N. E. 1044; McMarshall v. The Chicago, R. I. & P. Ry. Co., 80 Iowa, 757, 45 N. W. 1065, 20 Am. St. Rep. 445; Jordan v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 8, 59 N. W. 633, 49 Am. St. Rep. 486; Noonan v. New York Cent. & H. R. R. Co., 69 N. Y. Supr. Ct. 618, 16 N. Y. Supp. 678; St. Louis, I. M. & S. Ry. Co. v. Jackson (Ark. 1906), 93 S. W. 746, 6 L. R. A., n. s., 646; Austin v. Fitchburg Railroad, 172 Mass. 484, 52 N. E. 527; Northern Pacific Railroad v. Everett, 152 U. S. 107, 14 Sup. Ct. 474, 38 L. Ed. 373; Shoner v. The Pennsylvania Company, 130 Ind. 170, 28 N. E. 616, 29 N. E. 775.) In volume 2 of Thompson’s Commentaries on the Law of Negligence, section 1756, the author says, in reference to the duty of track-repairers, track-walkers, and similar employees:
“As a general rule, it is not contributory negligence, as matter of law, for a person so employed not to be on a constant lookout for approaching trains.”
A fair statement of the law is that the employee must exercise such care as the danger of his surroundings would suggest to a man of ordinary prudence and caution. And it is obvious that conduct which would be negligent on the part of one who is about to cross a railroad track, though an employee at work in the yards, might not constitute negligence on the part of one whose duty requires him to remain upon the track. (Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A., n. s., 132.)
“Nor does the principle apply to employees whose duties require their presence upon the track, the performance of which duties necessarily precludes their paying the strictest attention to the approach of trains.” (23 A. & E. Encycl. of L. 768.)
In the case of Baltimore, etc,, R. Co. v. Peterson, Adm., 156 Ind. 364, 374, it was said that the mere fact that a track-repairer omits to look and listen for approaching trains while engaged in the line of his duty on the track does not render him guilty of contributory negligence as a matter of law, the question whether such omission constitutes negligence being for the jury. From what has been said it is manifest that the court, properly refused the request for a peremptory instruction to find for defendant.
Complaint is made of the refusal to give a number of other instructions asked, but the propositions involved therein appear to have been fully covered in the instructions given. Two of the instructions given require'comment. Instruction No. 9 told the jury that, if the employee in charge of the engine could, by the exercise of reasonable diligence, have seen the deceased on the track in sufficient time to stop the engine and thus avoid the injury plaintiff would be entitled to recover, notwithstanding the deceased was negligent in failing to discover the approach of the engine. In other words, it informed the jury that plaintiff might recover notwithstanding the negligence of the deceased was of the same character as the negligence of the man in charge of the engine, or even if his negligence was of a higher degree than that of the other employee. It is said in the brief that this instruction follows the law declared in Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857. But the doctrine of “the last clear chance” obviously has no application to the facts of this case. There was no evidence showing when the negligence of Bentley ceased, if he was negligent, nor was there any evidence to show that after it ceased the negligence of defendant continued. In Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A., n. s., 132, Mr. Justice Mason, in commenting upon Railway Co. v. Arnold, supra, and the doctrine of “the last clear chance” as stated in volume 20 of the American and English Encyclopaedia of Law, at page 137, used the following language:
“This may be accepted as a correct statement of a principle of universal application, according with both reason and authority, provided the words ‘after its occurrence’ be interpreted to mean after the person concerned had ceased to be negligent. The rule that under the circumstances stated the neglect of one party to discover the omission of the other is to be held to be the sole proximate cause of a resulting injury is not an arbitrary but a reasonable one. The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inevitable? If just-before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, however, each had such power, and each neglected to use it, then their negligence was concurrent and neither can recover against the other.!’ (Page 536.)
The opinion further quotes the following extract from volume 2 of the Supplement to the American and English Encyclopsedia of Law, at page 64:
“This so-called exception to the rule of contributory negligence (i. e., the doctrine of ‘the last clear chance’) will not be extended to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.”
The instruction was erroneous as applied to the facts of this case, but we are unable to say that it was prejudicial in view of the other instructions as to contributory negligence, and especially in view of the findings of the jury in substance to the effect that Bentley was not negligent in failing to discover the approach of the engine. The jury found that he was engaged at work on the track and did not hear the whistle or the approach of the engine on account of “being busy at work and the wind whistling through, around and under the coal-bins.” If he was not negligent at all the instruction had no application, and must be held to have had no effect upon the general verdict. Instruction. No. 14 was as follows:
“The burden of proof is upon the defendant to show negligence upon the part of the deceased, Robert T. Bentley, which contributed to his death.”
An instruction very similar, though slightly different in language, was held to be reversible error in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819, because it left the impression upon the jury that the defense of contributory negligence must fail unless established by defendant’s own testimony. In that case plaintiff was a witness and testified at great length in respect of his actions and conduct at the time he received the injury. There was much room in that case for the jury to be misled by the instruction. In Railroad Co. v. Johnson, 74 Kan. 83, 86 Pac. 156, we refused to extend the doctrine of Railway Co. v. Merrill to a case where there was no evidence offered by plaintiff which showed contributory negligence and where the jury could not have been misled.
In the present case it is difficult to see how the instruction could have prejudiced defendant. There was no sharp conflict between the evidence of plaintiff and that of defendant on this proposition. No person saw the deceased immediately before the accident, .and neither the evidence of plaintiff nor that offered by defendant told the jury what his conduct was. The evidence of both practically left him at work on the track a very short space of time before the accident. The presumption is that he failed to see or hear the approach of the engine. Whether he was negligent in this is a matter of inference arising from all the circumstances, aided by natural presumptions. In other words, if the instruction had been qualified as it should have been, and the jury had been told that they might find from the evidence of plaintiff alone that deceased. was guilty of contributory negligence, the result must have been the same. The fact could only be determined from all the circumstances, by inferences and presumptions; and the circumstances shown by plaintiff did not differ from those shown by defendant. The jury were quite fully instructed as to what would constitute contributory negligence of the deceased and prevent a recovery by plaintiff, and were expressly told in instruction No. 8 to consider all the evidence in the case in determining this question. For these reasons we are not inclined to reverse the judgment for the errors in these two instructions. The case was otherwise fairly tried; there is evidence to support the verdict and special findings, and the judgment is affirmed.
No. 15,263.
(96 Pac. 800.)
SYLLABUS BY THE COURT.
Personal Injuries — Contributory Negligence —■ Erroneous Instruction. The erroneous instruction respecting contributory negligence referred to in the third paragraph of the syllabus in the former opinion is held not to have been cured by other instructions given or by the findings of the jury. | [
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The opinion of the court was delivered by
Porter, J.:
El. McDowell sued the railway company for damages occasioned by fire. He recovered a judgment awarding $128.50 for damages and costs and $75 for attorney’s fee. The railway company claims error. The only allegation in the petition which concerns the damages recovered is that the. fire burned 100 loads of manure of the reasonable value of $2.50 per load, or $250. On the trial it developed that the manure had been hauled out and distributed upon the land for some time before the fire. The plaintiff was permitted, over the objections of the defendant, to prove by a number of witnesses the value of the manure per load distributed as this was upon the twelve acres burned over. The witnesses were allowed to 'testify as to the benefits which the land received by the manure. One witness stated that his estimate of the value of the manure was arrived at by taking into consideration the fact that it would benefit the land by an increase of crops for a period of years.
Notwithstanding the plaintiff sought to prove the damages in this manner, and to recover for injuries to the realty, the company was denied the right to show that the market value of the land was no greater immediately- before, than after, the fire, and that there, was no depreciation. The court sustained an objection to testimony of this character on the ground that nothing was involved but the value of the manure, and plaintiff’s objection was based solely upon the ground, that he had made no inquiry about the land.
The railway company had contended from the outset that, inasmuch as plaintiff only alleged damages to the-manure as so much personal property, he should not be-permitted to prove its value as a thing attached to the soil. The court ruled otherwise, and the whole theory upon which the plaintiff sought to prove his damages, was that- the manure, having been distributed on the land, had a value in connection with it, and was a part of the land the same as trees growing thereon. In his brief the plaintiff relies upon Railway Co. v. Lycan, 57 Kan. 685, 47 Pac. 526, in support of the claim that the court properly permitted him to offer evidence directed to the value of the manure as a part of the land. Having elected to treat the damages as injuries to realty, the defendant should have been permitted in rebuttal to show that the fire had caused no depreciation in the value of the land. The ruling of the court was in conflict with what was held in Railway Co. v. Geiser, 68 Kan. 281, 289, 75 Pac. 68, and cases cited, to the effect that in actions of this kind either method of proof is. competent.
The judgment is reversed, and the cause remanded, for another trial. | [
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The opinion of the court, was delivered by
Mason, J.:
This proceeding is brought to reverse a ruling sustaining a demurrer to a petition which is substantially one in ejectment. The plaintiffs claim title as devisees in a will duly probated in Maryland. The petition does not allege, however, that the will has ever been admitted to probate or record in this state. The Kansas act relating to wills contains these provisions :
“Authenticated copies of wills executed and proved according to the laws of any state or territory of the United States, relative to any property in this state, may be admitted to record in the probate court of any county in this state where any part of such property may be situated; and such authenticated copies so recorded shall have the same validity as wills made in this state in conformity with the laws thereof.” (Gen. Stat. 1901, § 7961.)
“No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate or recorded as provided in this act.” (Gen. Stat. 1901, § 7966.)
It is manifest that the words “or recorded” in section 7966 have reference to the' recording of foreign wills provided for in section 7961. The plaintiffs suggest no other interpretation of the statute, but contend that as against a demurrer the allegation of their petition that the owner of the land “devised” it to them must be held to imply that whatever steps were necessary to make the devise effectual were taken, including the probate and recording of the will. Possibly a broad general allegation that the owner devised the land to the plaintiffs.might have been entitled to receive this very liberal construction. But the plaintiffs set out specifically a part of the court proceedings upon which they must rely (the original probate of the will), and it can not be presumed in their behalf that other proceedings had been had (a supplementary probate and record in this state) which they do not mention.
As these considerations compel an affirmance of the judgment it is unnecessary to determine any of the other questions discussed in the briefs.
The judgment is affirmed. | [
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The opinion of the' court was delivered by
Smith, J.:
J. H. Andrew brought this suit in the district court of Logan county to recover on a promissory note executed by the Kirks, and to foreclose a mortgage on real estate given to secure the payment thereof. . .
The petition contained copies of the note and mortgage, and prayed for personal judgment on the note and for foreclosure of the mortgage. It showed on its face that the note had become due and the conditions of the mortgage had been broken more than five years before the commencement of the suit. No facts were alleged therein to toll the running of the statute of limitations. On affidavit that service of summons could not be made within the state upon the defendants, proper service was made by publication. The defendants answered by a general denial and a plea that the suit was barred by the statute of limitations. The plaintiff in reply alleged that after the execution of the note and mortgage, and before the maturity thereof, the defendants had removed from the state of Kansas and had at all times since been absent therefrom.
Upon the production of a witness by plaintiff to prove the allegations of the reply the defendants objected to the introduction of any evidence, on the. ground that the petition did not state facts sufficient toi constitute a cause of action. The objection was overruled, the evidence was introduced, and personal judgment was rendered against the defendants upon the note for the amount of principal and interest, and a>. decree of foreclosure was entered.
The defendants ask that the judgment be reversed, first, for error in overruling the objection to evidence, and, second, because the evidence introduced was insufficient to prove the facts set out in the reply.. Neither ground of error is tenable. The petition was defective, probably demurrable, in that, while it showed' that the time limit provided by the statute had elapsed, it failed to state the exceptional fact which tolled the running of the statute. Had a demurrer been filed and sustained thereto, the plaintiff could have amended his petition and supplied the wanting facts. The question being raised by answer instead, these facts were supplied in the reply. The reply was in no sense repugnant to any allegation in the petition, and it stated no new cause of action. Its allegations were in aid of the petition — a confession and avoidance, a practice universally approved.
The defendants insist that section 4444 of the General Statutes of 1901 (Civ. Code, § 16) provides the limitation applicable to this action. That section applies to actions for the recovery of real property, or for the determination of any adverse interest therein, and not to an action for the recovery of money, as in this case. The determination of adverse interests in the mortgaged premises is mainly for the purpose of determining what rights in and to the same may be sold in the proceeding. If judgment be rendered for an amount due upon the note, the interest of the mortgagor is, by the decree, ordered to be sold for the purpose of paying the judgment. The note, and not the mortgage, is the évidence of the indebtedness and characterizes the action. Section 4446 of the General Statutes of 1901 (Civ. Code, § 18) provides the limitation applicable. thereto, and the limitation of time therein prescribed is subject to extension as provided in section 4449 of the General Statutes of 1901 (Civ. Code, § 21).
It is urged that the reason for extending the time for bringing an action, as provided in. section 4449, is that absence from the state renders personal service of a summons impossible; that, as to the foreclosure of the mortgage, personal service was not requisite, but the proceeding could have been maintained on service by publication at any time after the conditions thereof were broken, and hence the running of the statute was not interrupted. This reasoning is unsound. The mortgage is incident to the note, and is security for its payment. So long as an action may be maintained upon the note it can also be maintained upon the mortgage. (Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Perry v. Horack, 63 Kan. 88, 64 Pac. 990, 88 Am. St. Rep. 225; Jackson v. Longwell, 63 Kan. 93, 64 Pac. 991; Skinner v. Moore, 64 Kan. 360, 67 Pac. 827, 91 Am. St. Rep. 244; Fuller v. McMahan, 64 Kan. 441, 67 Pac. 828.)
The case of Hogaboom v. Flower, 67 Kan. 41, 72 Pac. 547, cited by defendants, is not in point. No action in that case upon the note was joined with the suit to foreclose the mortgage.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
In the year 1874 Cornelius Fogarty erected a mill-dam in the Smoky Hill river, on a part, of the former Fort Riley military reservation. Proceedings were taken under the mill-dam act. No objection is made to the regularity of the proceedings, except that it is claimed that Mr. 'Fogarty did not own. the land upon which the dam was built, and that the act did not apply to that part of the river where it was located. The plaintiffs are the owners of land along the river, above the dam, affected by the overflow caused by such dam. The defendants are the heirs of Mr. Fogarty, and devisees, executors and trustees under his will. The plaintiffs deny that any right was acquired, to build or maintain the dam, because the stream was navigable, and because Fogarty’s land did not extend to the bank at one end of the dam. They also allege that if such right was ever obtained it was lost by the destruction of the dam and the failure to, rebuild it in one year. They prayed for an injunction to prevent the rebuilding of the dam, which was refused. The defendants claim that plaintiffs are estopped by the' proceedings under the mill-dam act against their predecessors in title, and by the operation of the fifteen-year statute of limitations. Defendants also plead a former adjudication against one of the plaintiffs, and a release by the grantor of two others.
The principal questions discussed are whether the defendants’ ancestor had the right to institute the proceedings under the act, and the effect of the destruction or partial destruction of the dam1 upon the legal rights of the parties. The court made very complete findings, and as the abstract contains but little of the testimony the findings must be held to state the facts, unless in some of the particulars specified in the briefs they are in conflict with, or unsupported by, the evidence so presented in the abstract.
The claim that Fogarty acquired no rights through proceedings under the mill-dam act rests upon certain propositions affirmed by the plaintiffs, viz., that the river is navigable, and that the act has no application to a navigable stream; that Fogarty did not own the land upon which a part of the dam was erected, and that only such owner could acquire the right. The claim that the river is navigable is a deduction from the fact that in making the government survey of the adjacent lands the banks were meandered. This, it is insisted, is conclusive of the legal status of the river as a navigable stream, in the.sense that the title of riparian owners extends only to the bank, and such appears to have been the view taken in Park Commissioners v. Taylor, 133 Iowa, 453, 108 N. W. 927. That decision was based upon an act of congress requiring , surveys to be made in townships of six miles square by running north-and-south and east-and-west lines, unless “the course of navigable rivers may render this impracticable” (U. S. Rev. Stat. 1878, § 2395), and the directions given to surveyors that “both banks of navigable rivers are to be meandered.” (Lester, Land Laws, Reg. & Decs. 714.) Another section of the statute declares “that all navigable rivers, within the territory to be disposed of by virtue of this act, shall be deemed to be and remain public highways.” (1 U. S. Stat. at L. p. 468.) Section 5251 of the Revised Statutes of the United States of 1878 provides that “all the navigable rivers and waters in the former territories of Orleans and Louisiana shall be and forever remain public highways.”
The argument deduced from these provisions is that when a survey of lands bordering on a river is duly made and approved, showing that such stream was meandered as provided by these statutes and the regulations of the general land-office, such stream is thenceforth considered navigable, as matter of law, whether navigable in fact or not; and, being so navigable, the title to the bed of the river is in the state. As this conclusion rests upon the interpretation of a federal .statute, we may properly look to the federal decisions for authority. This matter was considered in a recent case in the circuit court of appeals involving title to the bed of Little River, in Arkansas. The plaintiffs were the owners of land adjacent to and abutting upon the meander-line of the river, as 'shown in the government survey, and by virtue of such ownership claimed title to the thread of the stream, upon the ground that it was not navigable, and sought to enjoin the defend-' ants from hunting and fishing thereon. The defendants claimed that the river was navigable, its status having been fixed by the survey. Some evidence was also given to show that it was navigable in fact. In the course of the opinion Judge Hook said:
“To meet the test of navigability as understood in. the American law a watercourse should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country through which it runs. It should be of practical usefulness to the public as a public highway in its natural state, and without the aid of artificial means. A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient. . . . To be navigable a watercourse must have a useful capacity as a public highway of transportation. ... It does not follow that, because a stream or body of water was once navigable, it has since continued and remains so. Changes may occur, especially in small and unimportant waters, from natural causes, such as the gradual attrition of the banks and the filling up of the bed with deposits of the soil, the abandonment of use followed by the encroachment of vegetation, and the selection by the water of other and more natural and convenient channels of escape, that work a destruction of capacity and utility as a means of transportation; and, when this result may fairly be said to be permanent, a stream or lake in such condition should cease to be classed among those waters that are charged with a public use.
“The action of the government surveyors'in meandering a body of water or in surveying its bed is to be considered as evidence upon the question of its navigability or unnavigability at the time; but it is not conclusive. The surveyors are invested with no power to foreclose inquiry into the true character of the water. If the United States has disposed of lands bordering upon a meandered unnavigable watercourse or lake, by a patent containing no reservations, and there is nothing else indicating an intention to withhold title to the lands within the meander-lines (Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. Ed. 171), it has nothing left to convey; and whether the title to the bed of the waters is in the state or passes to the grantee in the patent is determined by the local law. (Lamprey v. Minnesota, 52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541.)” (Harrison et al. v. Fite et al., 148 Fed. 781, 783, 784, 78 C. C. A. 447.)
In disposing of public land bordering upon rivers it is not the policy of the government to reserve title to the lands under water, whether the stream be navigable or not. The government parts with its whole title, leaving the question of boundary, whether the shoreline or the thread of the stream, to be determined by the local law. In case of navigable waters in this state the boundary is at the bank, and the title to the bed of the stream is in the state. (Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330.) The supreme court of the United States, in an exhaustive examination of this subject, said:
“If the boundary of the land granted had been a fresh-water river, there can be no doubt that the effect of the grant would have been such as is given to such grants by the law of the state, extending either to the margin or center of the stream, according to the rules of that law. It has been the practice of the government from its origin, in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream or other body of water. The meander-lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander-lines. It has frequently been held, both by the federal and state courts, that such meander-lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose margins are thus meandered; and that the waters themselves constitute the real boundary.” (Hardin v. Jordan, 140 U. S. 371, 380, 11 Sup. Ct. 808, 838, 35 L. Ed. 428.)
The reason for following the sinuosities of the river bank in making the survey is to ascertain the quantity of land to be paid for, and not to determine the navigability of the stream, although, being done by public authority, such meandering affords some evidence of the fact of navigability. (Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330.)
In Toledo Liberal Shooting Co. v. Erie Shooting Club, 90 Fed. 680, 33 C. C. A. 233, the contention was that a. certain shallow, known as “Maumee Bay,” was a navigable body of water. It had been surveyed and patented as swamp-land. The court said:
“The fact that this so-called ‘bay’ was surveyed and platted as swamp-land by the government affords a strong presumption against the navigability of the-water thereon.” (Page 681.)
The court thus gives to the survey the effect of a. presumption only. To give to the hastily formed opinion óf a surveyor, who in the course of his arduous work, often in the wilderness, encounters a stream he may have never seen before, the effect of an adjudication concluding for all time the question of its navigability, as respects the rights of riparian owners, is a proposition to which we can not assent. Both upon the evidence and as a matter of judicial knowledge the conclusion of the district court that the river is not navigable must be affirmed. There is no legal fiction that a stream not navigable in fact is still to be held navigable as a matter of law. There is no such unseemly conflict between fact and law.
Chapter 97 of the Laws of 1864, declaring the Smoky Hill and other rivers not navigable, does not conclusively establish the fact that they were navigable before,, although affording an implication that they had theretofore been so considered. The purpose of that act was to sanction the building of bridges and dams across them. (Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330.)
The claim that the defendants’ ancestor did not own the land upon which a part of the dam was built rests upon the following facts: A preliminary survey of the Fort Riley military reserve was made in 1855. No record of such survey was preserved. In 1857 a resurvey was made by one Stack, a deputy United States surveyor, who undertook to follow the lines of the first survey. Copies of the last survey, together with the field-notes and plats of all the surveys of public lands in Davis (Geary) county, were certified to the county surveyor, and are public • records. (Gen. Stat. 1901, § 1810.) The notes of Stack’s survey indicate a beginning at a corner of the reserve on the Republican river, thence southwardly to a point on the left bank of the Smoky Hill river. This is station 4, and is identified. Thence the river flows easterly, and then nearly north, to station 14, on the left bank, which is marked; thence the course is across the river to station 15, on the right bank, which is also identified. From this station the course is along the right bank of the river. The monuments intervening between stations 4 and 14, a distance of over a mile, are lost. The dam is between these stations. The oral testimony is that, commencing at station 4 and protracting forward this line by the notes, it is twenty-five feet from the bank of the river at the west end of the dam, opposite .the Fogarty mill. The surveyor who testified to this location of the line from the field-notes on cross-examination said:
“He [the government surveyor] was laying out the reservation, and I think that he intended to keep on the west bank of the river; that is what I think was his intention — to keep on the west bank of the river; but there is a mistake in his notes, and, if you follow his notes, as a matter of fact it does n’t follow the bank of the river.”
The defendants derive title from the government, under a patent to the Republican River Bridge Company conveying that portion of the Fort Riley military reserve lying between the Republican and Smoky Hill rivers and containing a reference to a plat thereof, upon which certain special sections are designated by numbers; among them is special section 9, in which the defendants’ lands are included. The plat in evidence shows special section 9 extending to the Smoky Hill river. Upon this evidence, and proof of possession and use as a mill-dam site since 1874, the court found that the defendants’ ancestor owned the land in question when the dam was built. The discrepancy in the notes can not overcome the evidence afforded by the plat, the recitals of the patent, and the strong probability that the river was intended to be the boundary. It can not be supposed that the government intended to leave an insignificant, narrow strip of land between the reserve line and the river, nearly a mile long, and extending at each end to a mere point. It is quite significant that the only monuments remaining are upon the margin of the stream.
There is no question of defendants’ title to the lands on the other side of the river.' Under the common law of this state the title.of a riparian owner upon unnavigable waters extends to the thread of the stream, and so Mr. Fogarty, when he built the dam, whs the' owner of all the land upon which it was erected, and had the right to proceed as he did under the mill-dam act to obtain the authority to erect and maintain the dam. (Gen. Stat. 1901, §§ 4098-4108.)
The remaining question is whether the rights acquired by proceedings under the mill-dam act were forfeited. The act provides:
“Any person having obtained the right to erect and maintain, or to maintain or raise any dam, under the provisions of this act, who shall not within one year thereafter begin to build said dam and finish the same, or who, having already erected said dam, shall for the same length of time fail to proceed under the provisions of this act to perfect his right to maintain the sam'e, and apply the water-power thereby created to the purposes stated in his petition, within three years, or, in case the said dam and mills connected therewith shall be destroyed, shall not begin to rebuild it one year after such destruction, and finish it in three years, or, having erected such-mills, shall fail to keep them in operation for two years at any one time, shall forfeit all rights acquired by virtue of the provisions of this act.” (Gen. Stat. 1901, § 4108.) .
The plaintiffs claim that all rights of the defendants to maintain this dam had ceased before this suit was begun, because of the destruction of the dam by flood in June, 1905. The finding of the court, however, is that the destruction of the dam was only partial (the mill remained intact), and that the work of repair and restoration was begun within a few days thereafter, which, being stopped by another freshet, was resumed, and although temporarily interrupted at different times was being carried on when this suit was com menced. These conclusions are supported by facts recited in the findings which are conceded to be true, but we are asked to say from photographic views of the river and ruins of the dam that the destruction was so complete, and the abandonment so long continued, that the forfeiture provided by the statute took effect. This would not only be contrary to the findings of the district court, but contrary to our own conclusions from the evidence. From the completion of the mill, soon after the dam was built, with the exception of the period of cessation caused by the partial destruction of the dam, Fogarty and his heirs and devisees have operated an extensive business by means of the power created by such dam. Large sums were expended by them in making repairs made necessary by breaches from freshets, and in maintaining the dam and power. No steps were taken in all this long period to question their rights or interfere with their enjoyment of the privileges presumptively acquired by the condemnation proceedings. Without discussing the question of limitations suggested by the defendants, it is proper to say that equity will scrutinize very carefully claims asserted at so late a day, and will not give relief by injunction in such a case unless the right thereto is entirely clear. The plaintiffs appear to concede the force of this suggestion when they say in their brief:
“If nature and her forces had not intervened and abated the original nuisance — abated the dam which Fogarty built — plaintiffs would not be here trying to prevent the creation of another nuisance or the building of another dam.”
Some minor matters are discussed in the briefs, but the views we have taken of the controlling issues make their consideration unnecessary. The judgment is affirmed. | [
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Per Curiam:
The demurrer to the petition was properly overruled. We find nothing substantial in the claim of error in the admission of testimony. Besides, the cause was tried to the court without a jury.
There was no abuse of discretion in appointing a guardian ad litem and permitting him to file an answer after the evidence was introduced and before the case was finally «decided, nor in approving the service 'of publication on the other defendants after the evidence was submitted.
The other assignments of error relate to the sufficiency and weight of the evidence. On a material issue of fact there was a conflict of evidence, and the decision of the trial court can not be disturbed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
In February, 1902, Samuel Ferguson insured his house and barn in the Farmers’ Alliance Insurance Company, and gave his note for the premium, twenty-one dollars, payable in such proportions and at such times as the directors of the company might order. The following payments were made, as shown by indorsements upon the note, before the loss hereinafter mentioned occurred, namely: “First payment, $6.30; 1903 assessment No.-, $2.80; 3/11/1904, $2.80.”
The buildings insured were upon Mr. Ferguson’s farm in Woodson county, which was occupied by a tenant at the date of the insurance. On November .9, 1904, the tenant moved about three miles away from the farm, leaving the dwelling-house vacant, and leaving in the barn about twenty tons of baled hay, grown on the farm, and some fodder in the field. In the bam. were also a few implements belonging to a neighbor. On December 19, 1904, while the premises were unoccupied, except as stated, the barn burned. The company sent its adjuster to examine and report concerning the loss. The examination was made December 29, 1904, and his report to the company contained' the following :
“Found total loss of barn by fire, which occurred on December 19, 1904, about 7 o’clock P. M., according to the statements of M. M. Williams, J. W. Williams, E. Dey and Mr. Muffley, all of whom were at the fire and assisted in saving the house. The origin of the fire is unknown, as no one was living on the premises at the time of the fire. The tenant, Henry Buholtz, having moved from the premises on November 9, 1904, according to statement of Mr. Muffiey, who has a knowledge of the time, and all the above-mentioned persons placed the time to exceed thirty days. There was in the barn at the time of the fire about fifteen tons of baled hay belonging to tenant, Henry Buholtz, and no insurance on the same, according to the statement of the owner. There is a mortgage given to secure a loan of $1000, dated October 1, 1902, given by Samuel Ferguson to Jones & Maxwell, of Paola, Kan. Upon the evidence collected I concluded that the company is not liable, for the premises, were vacant for more than thirty days prior to the fire.” *
. On.or about January 1, 1905, the company notified Mr. Ferguson of an assessment of $2.80 for the year 1905 upon his premium note, which he promptly paid, and the payment was duly acknowledged by the secretary on January 6, 1905. On February 15, 1905, the report of the adjuster, which was then on file in the general office of the company at McPherson, Kan., was formally considered by its executive board, and afterward, on the 18th day of that month, the company, by its secretary, wrote to Mr. Ferguson as follows:
“In answer to your inquiry of the 15th inst. in reference to your loss and the reason why the matter is not settled up, will say that our adjuster was upon the ground and went over the situation very carefully, and has reported to the executive board of this company that, the property having been vacant for more than thirty days, this company, under the operation of the by-laws, is not liable. Of this, of course, • you are aware, that this company does not carry vacant property beyond the period of thirty days after the vacancy by the occupant, and under the operation of this rule there is nothing for this company to do but to reject the claim.
“We regret very much that the conditions are such that the company can not recognize its liability to you, but you can see that unless these restrictions are observed carefully the losses of the company must be excessive. There are hundreds of properties that are occupied off and on by people who are not calculated to add anything to the moral risk.
“There is no reflection in this matter on you or any one else, but simply a plain statement as to the cause that leads us to reject the claim.”
Again, on February 25, 1905, the company, by its secretary, wrote to Mr. Ferguson, saying:
“Your claim came before the executive board on a recent date and was rejected on the ground that the property had been vacant more than thirty days prior to the time it was destroyed, and that this company had no notice of said vacancy, and therefore is void under the by-laws of this company.”
On March 11, 1905, the company indorsed the $2.80 received from Mr. Ferguson on January 6 on the premium note, as a credit thereon. No reason was given for refusing to pay the loss and no objection was made to the claim other than that stated in' the two letters of the secretary, as shown above, until the filing of the answer in the district court.
Mr. Ferguson having commenced an action, the company answeréd, setting up several affirmative defenses based upon conditions in the policy, viz.: That the barn and premises' had been vacant more than thirty days when the fire occurred, no notice of such vacancy having been given; that the premises had been made more hazardous by being so vacant; that the property had become more hazardously the use of the barn as a warehouse for baled hay; and that the plaintiff had encumbered the property by mortgage, without giving notice. The answer, also stated in substance that the assessment paid on January 6, 1905, had in fact been made January 1, 1904, to be payable on demand and notice, which was given January 1, 1905, pursuant to the custom of the company, and that at the latter date the secretary had no knowledge of the invalidity of the policy, and would not have received the assessment with such knowledge. The defendant thereupon offered in its answer to return this $2.80, with interest, and paid the amount into court.
The petition alleged that- the assessment paid January 6, 1905, had been received by the company upon, its demand, after notice of the loss, and also that the company had refused to pay the loss on the ground that the property was vacant when burned. The reply, among other things, pleaded that the company had been notified of the encumbrance, and other facts in avoidance of the condition of the policy respecting encumbrances, and denied the allegations relating to a more hazardous risk.
The trial resulted in a verdict and judgment for plaintiff for the amount of the insurance upon the barn.
An important question to be considered is whether the conditions of the policy pleaded by the company in avoidance of its liability had been waived. The defendant objects to the sufficiency of the pleadings to present this question. This objection can not be sustained, especially in view of the fact that the evidence tending to show such waiver was allowed to be introduced without objection. The alleged waivers relate, first, to all the conditions pleaded except that concerning the vacancy of the premises, and, second; to such vacancy.
After considering the report of the adjuster the company, by its secretary, rejected the claim on the single ground that the premises had been vacant for more than thirty days without notice. And this was repeated seven days afterward. Having then, with full knowledge of all the facts which it is now alleged show a violation of the other conditions, deliberately placed its rejection of the claim on the sole ground of vacancy, the company waived the other grounds of forfeiture afterward pleaded. (Smith v. German Insurance Co., 107 Mich. 270, 65 N. W. 236, 30 L. R. A. 368; Brink et al. v. Hanover Fire Ins. Co., 80 N. Y. 108.) A waiver of the forfeiture in such cases is not necessarily based upon a new agreement or an estoppel (Home Fire Ins. Co. v. Kennedy, 47 Neb. 138, 66 N. W. 278, 53 Am. St. Rep. 521; Bloom v. State Insurance Co. 94 Iowa, 359, 62 N. W. 810), but it precludes a party from afterward insisting upon the forfeiture as a defense Home Fire Ins. Co. v. Kuhlman, 58 Neb. 488, 78 N. W. 936, 76 Am. St. Rep. 111 and note; Modern Woodmen of America v. Colman, 68 Neb. 660, 94 N. W. 814, 96 N. W. 154). While the authorities are not unanimous, it has been generally held that if the insurer, after a loss has occurred, claims a forfeiture for non-compliance with certain conditions of the policy, it can not be heard afterward to assert further or different breaches as a defense. (19 Cyc. 793.) It has been often held that if the insurer bases its refusal to pay entirely upon the failure to comply with a particular condition, and thereby subjects the insured to expense in complying with such condition, it can not afterward maintain a defense based upon another condition not referred to in such refusal to pay and of which it then had knowledge. In Towle v. Insurance Co., 91 Mich. 219, 51 N. W. 989, the company, after an investigation by its committee, based its refusal to pay the loss solely upon the failure of the insured to state in his application the true condition of the title to the property. When sued the company set up two other defenses. The court said:
“When the adjusting committee left Mr. Towle on the day the proofs were made up, they stated to him they would look the matter over and report. The letter of the secretary, stating that the proofs were rather unsatisfactory, and requesting plaintiff to call at the office of the company, followed. The plaintiff did call, and the position taken by the company was then stated to him. The plaintiff subsequently spent his time going back and forth between his residence and Ionia in. the attempt to adjust the loss, and incurred the expense of bringing suit, before the two additional defenses were stated or claimed. Under these circumstances it would be proper to instruct the jury, as. matter of law, that the defenses were waived. Good faith required that the company should apprise plaintiff fully of its position, and, failing to do this, it estops itself from asserting any defense other than that brought to the notice of the plaintiff.” (Page 287.)
Possibly there is no technical estoppel here, but, as; we have seen, that is not necessary to a waiver, which is based on grounds analogous to that of an election of defenses. The company, after subjecting the insured to the expense of an action, upon the belief, justly entertained, that it would interpose only the defense stated in refusing payment, ought not to meet the plaintiff with other defenses of which it had the same knowledge when it refused to pay that it had of the one upon which it based its refusal. In such a case a frank statement of all the grounds of refusal might obviate the expense of commencing an action.
A waiver of the other conditions having been shown, an examination of the defense based upon the vacancy clauses is now necessary. The policy provided that if any dwelling insured became and remained vacant for a period of thirty days, unless written notice had been given to the company and its consent obtained, the company would not be liable. The application contained the statement that the dwelling-house was and would be occupied by a tenant. The plaintiff contends that these provisions relate only to the dwelling, and do not affect the loss upon the barn; while the company insists that the obvious intent of the condition was to guard against the increased risk from leaving the premises unoccupied by removal from the dwelling, and that the terms “vacant” and “unoccupied” should be regarded as equivalent in meaning and interchangeable in use. This is the view taken in Moore v. Insurance Co., 64 N. H. 140, 6 Atl. 27, 10 Am. St. Rep. 384. The subject is considered and the authorities reviewed in a note appended to the report of that case in 10 Am. St. Rep. -384.
The plaintiff contends, however, that this defense was also waived, and, if this is true, it will not be necessary to determine whether there was in fact a forfeiture because of vacancy. After the adjuster had made his investigation the company called for and received an assessment upon the premium note, and after deliberate consideration of the claim by the board an' indorsement of the amount so received was made upon the note, under date of March 11, 1905. It is insisted, and the jury so found, that when the amount of this assessment was received the secretary had no personal knowledge that the notice had been sent or the money received, although the business was transacted in his name. His name and official title had been affixed to both notice and receipt; the clerks who sent them were under his general direction, and, it appears, were acting in the regular and usual course of business as trans acted in his office. If this was not the act of the company, certainly the formal indorsement upon the note, made fifteen days later, after a full investigation, was a complete ratification. The company, it appears, continued to hold the note, and even after this suit was brought made a further assessment and demand of payment on January 1, 1906. The company can not be permitted to call for and accept premiums after knowledge of the breach of a condition and avail itself of a forfeiture for such breach. The policy could not be valid for the purpose of receiving premiums but void as an engagement to pay losses. Making and collecting the assessment with knowledge of the forfeiture under the circumstances shown was a waiver thereof. (McKinney v. German Mutual Fire Ins. Society, 89 Wis. 653, 62 N. W. 413, 46 Am. St. Rep. 861; Elliott v. Lycoming County Mutual Ins. Co., 66 Pa. St. 22, 5 Am. Rep. 323; Johnston v. Phelps County Farmers’ Mutual Ins. Co., 63 Neb. 21, 88 N. W. 142, 56 L. R. A. 127.)
The case was submitted to the jury upon proper instructions. The findings and verdict for the plaintiff were warranted by the evidence, and no error is found in the proceedings. Former decisions of this court upon questions somewhat similar to those presented in this record are in harmony with the views expressed in this opinion. (Cobb v. Ins. Co. of N. A., 11 Kan. 93; Insurance Co. v. Allen, 69 Kan. 729, 77 Pac. 529; Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Modern Woodmen v. Jameson, 48 Kan. 718, 30 Pac. 460; Taylor v. Modern Woodmen, 72 Kan. 443, 83 Pac. 1099, 5 L. R. A., n. s., 283.)
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Per Curiam:
This action was brought by the attorney-general in the name of the state to oust J. H. Wilcox from the office of mayor of Coffeyville for failure and neglect of official duty in the enforcement of the law relating to the sale of intoxicating liquors and the keeping of gambling-houses. It was alleged that defendant had failed and neglected to notify the county attorney of violations of the prohibitory liquor law or to furnish the names of witnesses by whom such violations could be proved, and that, in cooperation with other officers of the city, he had purposely assisted in imposing and collecting license-taxes on the business of illegally selling and keeping for sale intoxicating liquors within the city under the pretense of imposing fines. In his answer the defendant denied all of the charges made by the attorney-general.
Much testimony has been taken in the case which shows that during the term of Mayor Wilcox, and until about the time this proceeding was brought, saloons and joints where intoxicating liquors were unlawfully sold were in open operation in the city. There is some conflict in the testimony, but after a careful reading and consideration of the same we are satisfied that the unlawful traffic in intoxicating liquors was carried on with the knowledge and consent of the mayor and other officers of the city, and with the understanding that upon the payment of pretended monthly fines of fixed amounts the joint-keepers would be permitted to operate free from interference by the city officers. These fines were regularly collected by the officers of the city and paid into the city treasury, and until shortly before the commencement of this action the joint-keepers were given the immunity and protection which the payments were intended to secure to them. The mayor appears to have proceeded on the theory that he was justified in following this course so long as the wide-open policy was in vogue in the county.
It is the finding of the court that the defendant did not give the county attorney notice of known violations of the law prohibiting the sale of intoxicating liquors, nor make a bona fide attempt to enforce the law, as his duty and the- obligations of the law required; that the system of imposing fines was adopted as a means of obtaining public revenue for the city from the traffic, and, further, that it was carried on with the sanction and concurrence of the defendant. The finding and decision is that he has forfeited the office of mayor of Coffeyville, and a judgment of ouster is rendered in accordance with the prayer of the plaintiff’s petition. | [
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The opinion of the court was delivered by
Mason, J.:
Virginia Bower recovered judgment against John G. Cooper for $4000 in an action for breach of promise of marriage, and the defendant prosecutes error.
One of the principal contentions of the defendant is that the trial court erred in overruling an objection to this question, asked with respect to a conversation, had before'the action was begun, between the witness and the plaintiff:
“I will ask you to state to the jury what, if anything, she said about any agreement or understanding that she had with Mr. Cooper to marry, and his conduct in relation thereto?”
A part of the answer was as follows:
“ ‘Well,’ she says, T believed Mr. Cooper and trusted him, and I find he is trying to go back on me. . . . We were engaged to be married — he agreed to marry me as soon as the six months' was up, and I heard over the telephone where he was fooling with another woman; got stuck on another woman. He told her as soon as he got me out she would move right in.’ ”
The admission of this evidence is sought to be justified upon the authority of a line of decisions holding that under some circumstances in a breach of promise action the plaintiff may give evidence of her own dec larations, made during the existence of the engagement, for the purpose of showing the mutuality of the. contract — that the plaintiff as well as the defendant had consented to it. The cases are not in harmony, and it is difficult to deduce a general rule from them. They are collected in volume 5 of the Cyclopedia of Law and Procedure, at page 1012, notes 5, 6, 7, 8, 10 and 11, and volume 3 of Wigmore on Evidenc0e, section 1770, notes 2 and 3. Additional cases are State v. Sortviet, 100 Minn. 12, 110 N. W. 1001, Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385.
Declarations by the plaintiff of the existence of the agreement to marry have been held to be admissible, not as proof of the contract, but as affecting the measure of damages by showing additional humiliation to the plaintiff. (Reed v. Clark, 47 Cal. 194; Liebrandt v. Sorg, 133 Cal. 571, 65 Pac. 1098.) The present case seems to be one in which the declarations of the.plaintiff of the fact of her engagement to the defendant might be competent as tending to show her own consent to it, for this reason:, the defendant produced several witnesses who testified in substance that the plaintiff had said she would not marry any one, although she had an offer to marry a rich man. And where it is permissible to show that the plaintiff had said she had agreed to marry the defendant it can hardly be a ground of serious objection that her incidental reference to the defendant’s promise to marry her is also admitted, since that would be a natural if not necessary accompaniment to the agreement on her part. But the question objected to went beyond this. It called for the plaintiff’s narration of the defendant’s conduct in the matter. This portion of the question was incompetent on any theory, and the answer to it was manifestly prejudicial, as tending to arouse feeling against the defendant. Its admission therefore requires a reversal of the judgment unless the error was waived or cured. When the question quoted was asked the defendant objected to it as incompetent. The ob jection was overruled, and the defendant excepted. The witness-then said, “I could state that better if I would state it just as it occurred, in my own way.” The plaintiff’s attorney responded, “Very well.” The witness then gave the answer already referred to. The plaintiff’s counsel maintain that the words “very well” are to be regarded as constituting a new question, or a repetition of the former question, and that as no objection was interposed between it and the answer the objection previously made must be considered to have been abandoned. To hold this would be to exact unreasonable pertinacity of counsel conducting a trial. The objection to the inquiry had been once made and ruled upon. The suggestion of the witness and the reply of the attorney did not change the situation, and there was no occasion for a renewal of the objection or for its restatement.
It is also contended that the defendant waived the error (1) by bringing out the same matter upon cross-examination of the witness and by cross-examining upon matters not referred to in the examination in chief, (2) by permitting evidence of a similar character to be given by another witness without objection, and (3) by not moving to strike out the objectionable part of the answer or asking an instruction to the jury to disregard it. Of these contentions it may be said in order: (1) The evidence having been admitted over a proper objection the defendant was entitled to cross-examine upon it without wáiving the exception, although in doing so the objectionable testimony was repeated; and so far as the cross-examination went outside of the examination in chief it did not relate to the matter objected to in the direct examination; indeed, the two conditions would seem to be incompatible. (2) The testimony of the other witness concerned an entirely different conversation, and the declarations of the plaintiff which it covered related only to the agreement to marry- — -not to the defendant’s conduct. (3) So far as the answer was responsive it was not neces sary to move to strike it out or to ask an instruction to disregard it in order to preserve the benefit of the objection to the question; the portion of the answer which has been quoted and discussed was responsive; the answer did include volunteered statements of the witness on other subjects, but their presence, although not objected to, did not affect the matter under consideration one way or the other.
The trial court gave an instruction as follows:
“Certain witnesses have testified to declarations made by plaintiff prior to the time when the contract is alleged to have been broken tending to prove a promise or consent on the part of plaintiff to marry the defendant. These declarations are competent and may be considered by the jury to show the mutuality of the contract.”
This instruction did not cure the error, for it did not in terms or by implication withdraw from the consideration of the jury the testimony regarding the plaintiff’s declaration concerning the defendant’s conduct.
A second assignment of error is based upon the contention that the plaintiff was precluded from recovery by the fact that her own testimony showed affirmatively and conclusively that the promise to marry upon which she relied, if given at all, was made in consideration of her consent to future illicit intercourse. No question is involved as to the general law on the subject, for the court properly instructed that under such circumstances no recovery could be had. The only controversy is with regard to the fact. To determine this it is necessary to state a part of the evidence in some detail. The plaintiff testified that she became acquainted with the defendant through doing housework for him while he was living with his second wife, from whom he was subsequently divorced; that after the divorce was granted, December 26, 1905, he visited her several times at the place where she was working; that during these visits they discussed a plan for her -to keep house for him; that he told her he would like to have her for his wife and for her to come to his house and keep house for him until the six months from the date of the divorce were up; that he did n’t want her to work any longer after he had made arrangements to get married; that on January 26, 1906, she went to his place, after which the question of marriage was talked between them about every day. Her examination in chief then proceeded as follows:
“Ques. What was finally agreed upon between you and Mr. Cooper? Ans. After I was there—
“The court: What was said?
“Plaintiff’s attorney: Between you and Mr. Cooper concerning the matter of getting married, after you went there ? Ans. After I was there about two weeks, then he told me he would like to have me be mutual with him; that he wanted me to have intercourse with him so that he could be true to me; he said he could not wait six months.
“Q. What was said about the question of getting married? A. He said that just as soon as the six months was up, the 27th of June, we were to be married.
“Q. And what did you say? A. I consented.
“Q. And agreed to it? A. Yes, sir.
“Q. State, after that, what the facts were about whether you did have intercourse with him. A. Yes, sir.
“Q. At different times there at his house? A. Yes, sir.”
According to her statement these relations continued until May 26, when Cooper asked her to sign several receipts — which she retained and which were introduced in evidence — and upon her refusal ordered her out of the house and told her he did not intend to carry out his contract. One of the receipts read as follows:
“Topeka, Kan., May 26,-1906.
“Received of John G. Cooper two dollars, it being the balance due me for work, labor and other demands physically, mentally and sexually.
Her testimony upon cross-examination was in part as follows:
“Ques. You say in this petition that this contract was made to get married on or about the 10th day of February? Ans. We talked more about it then.
“Q. Is that true now, or is n’t it true? A. It is true in one sense of the word, because that is when he asked me about that time to be sexually mated with him; to be mutual with him.
“Q. Did he tell you — did you refuse to do that at first? A. I did until he said he wanted to be true to me and that, he could not wait until the six months were up.
“Q. That' he would marry you if you would do that? A.. That just as soon as the six months were up we would be married then.
“Q. If you would have sexual intercourse with him he would marry you at the end of the six months; that is what he said? A. Yes, sir.
“Q. And then you did have sexual intercourse with him? A. Yes, sir. •
“Q. In response to that promise ? A. Yes, sir.
“Q. Now, that arrangement was satisfactory to you, was it? A. Yes.
“Q. Now, this was on February 10 ? A. It was some time near that date, about two weeks after I went there; maybe a little later. It might have been a week later, I don’t remember the date.”
The testimony quoted seems to establish that the express contract there referred to was based upon an unlawful consideration, and to point to that specific contract as the one upon which the plaintiff relied. We do not discover that so far as relates to this particular transaction the plaintiff’s admission was ever withdrawn or explained away. However, there was other evidence sufficient to support a finding that an offer to marry had been made and accepted before the plaintiff became the defendant’s housekeeper. The defendant’s counsel claim that the plaintiff must recover if .at all upon the contract made after that event, because in the petition and in the instructions the agreement relied upon is described as having been made on or about the 10'th day of February. Of course the exact time of the promise is not material, but there was a tendency throughout the trial to use the date named — the 10th of February — to identify the agreement said to have been reached after the plaintiff moved to the defendant’s house. It can not be presumed, however, that the trial court so used it in his charge to the jury. There having been some evidence that an agreement to marry had been arrived at before the matter of illicit intercourse was mentioned between the parties, there was room for the jury to find the existence of a valid contract.
A further claim is made that no recovery should have been allowed because the alleged promise to marry was given, and the action for its breach was begun, before the expiration of six months from the date of the defendant’s divorce. The statute (Gen. Stat. 1901, § 5142) provides that every decree of divorce shall recite that it does not become absolute and take effect until the expiration of six months from its date. This provision, however, has been interpreted as a mere restriction upon marriage within that time. (Durland v. Durland, 67 Kan. 734, 74 Pac. 274, 63 L. R. A. 959.) Upon the rendition of a decree of divorce the parties cease to be husband and wife. Neither may lawfully marry again within six months, but either may during that period make a legal contract to marry after its expiration. The petition in this case was filed June 8, 1906, not only before the arrival of the time agreed upon for the performance of the alleged contract but before the defendant could lawfully have- performed it. The evidence, however-, was complete and undisputed that if the defendant had ever promised to marry the plaintiff he had absolutely repudiated the promise. His principal contention throughout the proceeding has been that he never made such an engagement. He is not in a position to insist that the action was prematurely brought.
(96 Pac. 794.)
SYLLABUS BY THE COURT.
1. Evidence — Form of Objections — Self-serving Declarations. Where a witness is asked what a party, in whose behalf he is called and examined, had said about the subject-matter of the litigation, an objection to the question on the ground that a self-serving declaration is thereby called for is sufficiently indicated by the use of the term “incompetent”; and the addition of the words “irrelevant and immaterial” do not so far detract from its force as to render it unavailing' on review.
2. -General Objection, on Oral Examination, to Testimony yn Part Admissible. The rule that a general objection to ■ evidence will not avail when any portion thereof is admissible does not apply without modification to an objection, made in the course of the oral examination of a witness, to a question which includes several different propositions, a part of which are not subject to the objection. Ordinarily it is incumbent upon the examiner to frame his-question so that in its entirety it is free from the objection made; otherwise the objection should be sustained.
The trial court gave an instruction correctly stating the general rule as to conditions under which punitive damages may be allowed in breach-of-promise cases. The defendant maintains that under the evidence there was no opportunity for the application of such rule, and that the conduct of the plaintiff as shown by her own testimony was such as to forfeit any claim to other than compensatory damages. This, however, was a question for the jury to determine.
Other assignments of error are not thought to. require discussion. The judgment is reversed, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Benson, J.:
The city of Erie voted $5000 in bonds to prospect for, and to secure a supply of, natural gas, and used $2700 of the amount in such 'undertaking. Its success was only partial. About the same time the defendant, the Erie Gas & Mineral Company, was engaged in mining for, and selling, natural gas in the same vicinity, and had made some progress and secured some gas. In this situation, on the 24th of August, 1900, the parties entered into a contract incorporated into an ordinance of the city, whereby the city agreed to turn over to the company its gas-wells and leases and $2000 in city bonds and the company agreed to furnish gas for the city and its inhabitants. For that purpose the company was granted the right to lay its mains and pipes in the streets. The contract, among other provisions, contains the following:
“Said party of the first part further covenants and agrees to pay annually, on or before the first day of August of each year, to the said The City of Erie, one-fifth of the actual net profits of the said The Erie Gas & Mineral Company, derived from the sale of gr.s to the inhabitants of the said city for domestic purposes, for the fiscal year ending June 30.”
The city turned over to the company with the bonds a lease on six acres of land, and one gas-well furnishing a small supply; also, another well drilled to the first gas-sand, which the company completed at its own expense. Both wells are still used, but these, together with the two wells it already owned, were insufficient, and the company has since diligently endeavored, by drilling many new wells and improving the old ones, to furnish a supply of gas, and has been reasonably successful in this effort, although the gas-field appears to be a poor one.
The company commenced to furnish gas under the agreement above recited in November, 1900, but ren dered no account of profits to the city and made no payments thereon, and this suit was brought January 4, 1906, for an accounting of such profits, and to recover one-fifth thereof. The answer denied that any profits had been made. The trial was to the court, resulting in a general finding for the defendant.
The plaintiff alleges several errors, but the one principally relied upon is the conclusion that before being chargeable with profits the company should be allowed its entire outlay in providing its plant, which includes its wells, mains, pipes, and equipment, by means of which it supplies its patrons, and that no profits could be considered as earned until the company was reimbursed for these expenditures. From the opinion of the learned judge it appears that this was the theory adopted by the court, and that the cost of providing the wells and the necessary pipes and appliances was allowed as expense, without taking into consideration the value of these instrumentalities constituting, the plant.
“Net profits” have been defined as “the gain that accrues on the investment, after deducting the losses and expenses of the business.” (2 Bouv. Law Dic. 486. See, also, Tutt v. Land, 50 Ga. 339; Connolly v. Davidson et al., 15 Minn. 519, 2 Am. Rep. 154.) In the case of Eyster v. Centennial Board of Finance, 94 U. S. 500, 24 L. Ed. 188, involving the distribution of the remaining funds of the Centennial Exposition Company, it was said:
“The capital stock of this corporation was not employed in, but to prepare for, the business of the contemplated exhibition; and the receipts of the exhibition, over and above its current expenses, are the profits of the business. These were the only profits anticipated. They are, in fact, the net receipts, which, according to the common understanding, ordinarily represent the profits of a business. . . . Popularly speaking, the net receipts of a business are its profits. So here, as the business to be carried on was that of an. exhibition, and its profits were to be derived only from its receipts, to the popular mind the net receipts would represent the net profits.” (Page 503.)
The import of the term “net earnings” was considered in the leading case of Union Pacific R. R. Co. v. United States, 99 U. S. 402, 25 L. Ed. 274, where it was said:
“Having considered the question of receipts or earnings, the next thing in order is the expenditures which are properly chargeable against the gross earning in order to arrive at the ‘net earnings,’ as this expression is to be understood within the meaning of the act. As a general proposition, net earnings are the excess of the gross earnings over the expenditures defrayed in producing them, aside from, and exclusive of, the expenditure of capital laid out in constructing and equipping the works themselves. It may often be difficult to draw a precise line between expenditures for construction and the ordinary expenses incident to operating and maintaining the road and works of a railroad company. Theoretically, the expenses chargeable to earnings include the general expenses of keeping up the organization of the company, and all expenses incurred in operating .the works and keeping them in good condition and repair; whilst expenses chargeable to capital include those which are incurred in the original construction of the works.” (Page 420.)
It is true that net earnings are not always net profits, for there may be some incidental deductions to be made from net earnings before profits are realized, but the principle of this decision is believed to be quite applicable to the case under consideration. In estimating the gains of any business, if we take into consideration the cost of the original investment in the plant or factory we must also consider the value of the establishment remaining. The application of the theory adopted by the court charged the city, in effect, with the cost of the investment, but gave no credit for its value. In an action to recover an alleged excessive income tax upon net income it was held:
“The object of the law was to impose a tax on net income, or profits, only; and that can not be regarded as net income, or profits, which is required and expended to keep the property up in its usual condition proper for operation. Such expenditure is properly classed with repairs, which are a part of the current expenses. If a railroad company should make a second track when they had but a single track before, this would be a betterment or permanent improvement, and, .if paid out of the earnings, would be fairly characterized as ‘profits used in construction.’ The works of the company would have an additional value to what they had before, with an increased capacity for producing future profits.” (Grant v. Hartford & N. H. R. R. Co., 93 U. S. 225, 227, 23 L. Ed. 878.)
In Mayer v. Nethersole, 71 N. Y. Supr. Ct., App. Div., 383, this subject was considered in the interpretation of a contract between an actress and her manager, wherein he was to receive a certain percentage •of her profits in proposed theatrical tours. The court said:
“The controversy is over the meaning of the word ‘profits,’ the appellant contending that the cost of ‘production,’ which includes scenery, costumes, properties and other expenses in preparing for the commencement of the theatrical season, as well as running expenses, including salaries, railroad fares, royalties, advertising, etc., must be deducted before there are any profits, and the respondent insists that the cost of ‘production’ should not be deducted.” (Page 385.)
The referee in that case held that this cost of production was a part of the appellant’s permanent capital, invested not merely for the two seasons but for the future, the property being and remaining hers, and that therefore the cost should not be deducted in determining the amount of profits. On exceptions to this decision of the referee -the court said:
“In manufacture, agriculture and ordinary business the word ‘profit’ ordinarily means the excess of returns over expenditures and may or may not, according to circumstances, include in the returns any inurease in value of the capital and in the expenditures any depreciation of capital. In a more scientific sense it relates to that excess which remains after deducting from the returns not only the operating expenses and depreciation of capital, but also interest on the capital employed. The appellant could not be heard to say that she intended in her offer to use the word ‘profits’ in a technical or scientific sense, for the respondent presumably accepted it according to its ordinary meaning. She seeks to attach to it a special meaning different from the sense in which it is ordinarily used in the business world. She includes among the expenditures the cost of production, which is the money embarked in the venture at the outset; but she takes no account of the assets at the expiration of the contract.” (Page 388.)
At the beginning of this venture the city transferred its two wells and its leases, delivered its bonds to the amount of $2000, and granted the use of its streets to the company, thus contributing that much toward the investment necessary to launch the enterprise. The company was to furnish whatever else might be necessary for that purpose, and was to own and operate the plant. The annual profits were to be divided, one-fifth to be paid to the city and the remaining four-fifths to be retained by the company. It can not be supposed that in computing these profits the expenditures of the company in creating the establishment were to be charged as expenses against its receipts, for such expenditures constituted its own contribution to the enterprise. The company engaged to furnish a supply of gas to the people of the city, as stated in the agreement. Incident to this supply, it must be held that the company undertook, aided by the contribution of the city, to furnish the necessary instrumentalities for producing and distributing this supply. These instrumentalities included all necessary wells, trenches, pipes, mains and appliances constituting its plant, estimated at the trial to be worth $60,000. In this the city has no proprietary interest, and no voice or concern as to its cost. The cost of operation in furnishing gas within the city, upon which profits are to be divided, including necessary repairs, must be charged as expenses, to be deducted from the amount received therefor, in order to determine the profits thereon. Such expenses, however, will not include expenditures for new wells, mains or other permanent improvements or betterments, nor the cost of supplying gas and making sales in the profits ol which the city does not share.
It is suggested that it will be difficult to distinguish these items. The receipts and expenditures of the company have not been classified, but are entered in one common account, including the cost of the establishment, the operation of the service, and matters pertaining to sales within and without the city; but this difficulty can not affect the rights of the plaintiff, and probably will not be found to be as great as anticipated.
In presenting its estimates for the computation of profits counsel for the plaintiff deduct from the amount of sales within ' the city the amount received from sales to manufacturers. The defendant now contends that there should also be a reduction for gas sold to churches, the opera-house, stores, and offices — that these are not “domestic purposes.” The term was probably used with reference to the ordinary distinction usually made in the sale of gas for light and heat for the comfort and convenience of individuals in their-homes, offices, stores, churches and the like, and sales made to manufacturers to generate power. Usually,, reductions are made for the latter purpose from the-schedule of prices for the former. The term “domestic”' has a widely varying meaning, and, while its primary-significance relates to the house or home, it is often used in a vastly broader sense. Its significance must always be determined with reference to the subject-matter and the relation in which it appears. In this contract, and with reference to this subject, the more-reasonable view is that it applies not only to the homes. of the city but to other places named where its principal use is for heating and lighting, and not for power. It appears that the parties construed the term to exclude only manufacturing purposes. The secretary and manager of the company, after stating as a witness the amount of sales for all purposes, and deducting the amount of sales for manufacturing purposes in the city, and giving the balance, was asked:
“Ques. Does that sum represent the proceeds for sale of gas sold to the inhabitants of the city for domestic purposes, from the time the first gas was furnished in November of 1900 up to the last of December, 1905? Ans. Yes, sir; as I understand it.”
It is not necessary to consider the alleged errors in ruling upon testimony. These rulings were fairly incidental to the mistaken theory upon which the judgment rests,' i. e., that the company might treat its entire outlay in creating the plant as expense of operation. Because of this error the judgment is reversed, and a new trial ordered. | [
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The opinion of the court was delivered by
Benson, J.:
Isaac W. Mussulman, an employee of the Nelson Vitrified Brick Company, was injured by the falling of a wall of a brick-kiln where he was at work, causing his death. His widow commenced an action to recover damages for the alleged negligence of the company whereby her husband lost his life, and recovered.
The petition alleged negligence of the-brick company, August Nelson, superintendent of the plant, and W. R. Taylor, foreman of the gang in which the deceased was working, in the following matters: The construction •of a soft-earth foundation for the wall; the construction of the wall from green brick; permitting water to ■collect and stand on the soft ground inside of the wall; constructing the wall without support; and in directing the deceased to work in am unsafe and dangerous place.
The answer admitted that the deceased was defendant’s servant in a gang of workmen under the control of a foreman who was a fellow servant of the deceased; that the wall was built of green brick, upon a recently filled foundation; that the attention of the foreman was called 'to the condition of the wall the day before and on the morning it fell; that he was informed that it was leaning and settling; and that he knew that it was unsafe and that the foundation' was settling and giving away. The answer contained a. general denial, and also charged contributory negligence, alleging that for many hours before the wall fell it had settled and was leaning to such an extent that it had become un.safe and dangerous to work at the place where the injuries occurred, and that this dangerous condition was evident and obvious to all who were near it; that the .attention of the men had been called to this condition; that the foreman warned the deceased and other workmen of this unsafe and dangerous condition, and that the deceased voluntarily placed himself in such a position that when the wall fell he was injured as the result •of his own negligence. The reply was a general denial.
At the time of the injury the company was engaged in constructing the walls of a new kiln, and also setting bricks in the kiln to be burned. The plant was a newly constructed one and had no burned bricks, and the bricks used in constructing the outer walls of the kiln were green brick — dried, but not burned — among which were many broken pieces, or bats. The work of building these walls was being done by unskilled laborers,' under the direction of W. R. Taylor, a skilled and experienced workman, who was foreman of the “setting .gang” in which the deceased was working. Ten or twelve men were working in the gang at the time. The kiln was located on a newly made fill, excavated from a hillside in leveling the ground upon which to erect the kilns. The south wall of the kiln was first constructed. The east and west walls were being built in advance of the work of laying the bricks in the arches for burning, inside of the kiln, which supported these walls so far as the arches had been laid. The west wall extended northward some fifteen or twenty feet beyond this support; it was about twelve feet high, about thirty-four inches thick at the base, and sixteen inches at the top, being drawn in from the outer, or west, side. It was crooked, and leaned to the east. Rain had recently fallen, and water had collected within the area of the kiln under construction, and, standing there, had saturated the ground under and inside the west wall, then being built. The two lower courses of this wall were of hard brick, but the saturation and consequent softening of the newly made ground caused the wall to settle so that the water f came in contact with and softened the green bricks in the courses above. A workman was laying bricks upon this west wall, which was then considerably out.of plumb. Green bricks had been brought in on a car from the dry-house, and one man was pitching them from this car, which stood seven feet from the west wall, to another, who passed them on to the man on the wall. Another workman was pitching bricks from this car to Mussulman, who in turn pitched them along to the foreman, who was laying them in the arches, or kiln, a few feet south of Mussulman, who, in doing this work, was standing between the car and the wall. While in this position the wall fell upon him, causing the injuries of which he died.
The superintendent of the plant testified as follows:
“Ques. You say this wall was dangerous? Ans. Yes; and I knew if it rained it was going to fall.
“Q. You knew it rained that night? A. Yes, sir.
“Q. You knew that day the danger to it? A. Yes, sir.”
“Q. You knew they were to go to work there at seven o’clock? A. Yes, sir.
“Q. You knew that the men would go to work where that wall was? A. .Yes, sir.
“Q. Yet you did n’t send orders down, or go yourself to look after it? A. There was the foreman there to attend to that business.
“Q. Who was the foreman? , A. Taylor was the foreman for the building of the kiln and starting it up, and Sherman was the general foreman over the yard.
“Q. Did Taylor have full charge? A. Of that kiln; yes, sir.”
“Q. You say also that the wall was leaning? A. Yes, sir.
“Q. Then you had a wall that was built by inexperienced men, and it was built by green brick, many of them bats, and it was upon a soft-earth or new-made foundation, and it had recently rained, and you had all those conditions affecting that wall, hadn’t you? A. Yes, sir.
“Q. These brick were all green brick; brick that had never been kiln burnt, but simply came out of the dryer, made in the drying-machine and brought out without burning? A. Yes, sir.
“Q. And if you apply moisture to them they will simply squash and melt down? A. Yes, as soon as it rains on them. We had two courses of burned brick at ‘the bottom, but the rain was so heavy the moisture went to the upper brick and softened them over.
“Q. Is n’t it a fact the weight of the green brick on the top of this kind of new-made earth foundation sunk them' down level with- the bed of the kiln, so the water came in on them and wet the third course? A. Yes, sir.”
The defective condition of the wall being conceded, and notice to the company, if not admitted, being shown,' the principal issues tried were upon the defendant’s allegations that the deceased assumed the risk and was guilty of contributory negligence. In answer to special questions the jury found that Mussulman was without experience in the construction of such walls; that he did not know that the wall was in a dangerous condition; and that such dangerous condition was not obvious to a man of ordinary intelligence. While the wall was a poorly constructed affair, both in material and workmanship, and was leaning, and the ground about it was water-soaked, other workmen continued their work in dangerous proximity, and testified that they apprehended no danger. The foreman on cross-examination testified that he would not have continued work there if he had known that it would fall, and would have told the boys to get out. It is true that he • testified that he told the men. the wall was leaning and to look out, but he also said this was intended as a joke, as appears from his testimony:
“Ques. I want you to say to the jury whether you were joking when you told the men they had better look out for that wall; or were you in earnest? Ans. I was joking.
“Q. I want to know whether you were joking when you went to Sherwood and told him you considered the wall dangerous? A. No.
“Q. Were you joking, or in earnest then? A. I was talking business then.
“Q. Why would you be in earnest when you were talking to Sherwood and joking when you told the men they had better look out? A. Simply because if I had told them the plain.truth about it they would not work and I would have been out of men; that would be all— they would quit.”
It is claimed that the crude appearance of this wall was such as to lead to jocular remarks concerning it-But whether they were made in jest or earnestness was; for the jury to determine. The defendant argues that the dangerous conditions were so obvious that it must be held that Mussulman assumed the risk. The opinion in Walker v. Scott, 67 Kan. 814, is cited to sustain the contention that the foreman had no knowledge superior to that of the deceased,.and that with all the means of knowledge that his superiors had he voluntarily encountered the danger. In the Walker case the injured person was not only aware of the danger but,had on several occasions expressed his fear that a cave-in would occur — that it was unsafe, and that some one would be hurt. Nothing of the kind appears here. The only knowledge attributable to Mussulman is to be inferred from the appearances.surrounding him, the conversation of thé workmen, and the general knowledge that we must presume he possessed. The dangers were not so apparent as to deter others, nor such as to cause the superintendent or the yard foreman, both of whom had full knowledge of the situation, to take steps to protect their men. And the foreman of this particular gang, a man of experience, upon whom the superintendent says he relied, continued to work and permitted the others to work close to this dangerous wall. With all the evidence before them the jury found that the danger was not obvious to persons of ordinary intelligence. This finding, supported as it is by competent evidence and approved by the district court, can not be set aside by this court.
It is doubtful whether the doctrine of assumed risk properly applies in this case. (Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990.) It may not be important, to decide whether the circumstances relied upon to show an assumption of risk are appropriate to that head or to that of contributory negligence, for the latter defense was also relied upon and must be considered. Here, too, the jury found against the defendant’s contentions, .as will appear from the general verdict and from 'the • following special findings:
“ (19) Ques. Do you find from the evidence that at the time Isaac W. Mussulman sustained injury he knew the dangerous condition of said brick wall? Ans. No.
“ (20) Q. Do you find from the evidence that at the time Isaac W. Mussulman sustained injury he was exercising ordinary care to prevent injury to himself? ■ A. Yes.”
' “ (7) Q. Did Taylor, the foreman of the setters, tell ~the men who were working with him that the wall was unsafe or dangerous? A. No.”
- The jury having found that the deceased exercised ordinary care and that he was not guilty of contributory negligence, we have only to consider whether such findings are supported by the evidence. We have already referred to and quoted some of this evidence. The jury had presented to them the condition of the ground; the manner of the construction of the wall and the materials used; the fact that rains had just fallen; the effect of the water upon the wall; its appearanee some time before and at the time it fell, and the appearance of the ruins remaining; the conduct and conversation of the gang foreman and of fellow workmen; and the notice to, and conduct of, the superintendent and of the yard foreman. From all this, and all the other circumstances in evidence, which have been duly considered, the jury found that the deceased was free from contributory negligence; and this finding, based on competent evidence, must, with the other findings, be sustained upon principles so often stated that repetition here is useless.
For the same reasons the order overruling the demurrer to the evidence is approved. No complaint is made of the instructions or the incidental rulings of the court, nor of the findings of negligence of the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Several assignments of error have been presented, but they are all based upon the idea that the: evidence and findings of the jury conclusively show-contributory negligence on the part of the deceased. It is urged that if Hansen, when at the crest of the-hill, had looked toward the southeast, which he could easily have done, the headlight of the train would have-been seen by him, and being thus warned he would not. have attempted to cross the track, in which case no accident would have occurred. It is assumed in this conclusion that the conduct of the deceased in driving down the hill as he did shows that he failed to look for an approaching train before starting down the road through the cut, and this failure constitutes the alleged contributory negligence. Without considering whether the-deductions of fact made by the plaintiff in error are sustained by the evidence or not, we are unable to concur in its conclusion that the deceased was guilty of contributory negligence by failing to look and listen when at the crest of the hill. The rule of “look and listen” as applied generally and in this state requires-people who are about to cross a railroad track at a public crossing to exercise such care and vigilance to avoid injury as a person of ordinary caution and prudence would use under the same circumstances. (7 A. & E. Encycl. of L. 428; Brown v. Tex. & Pac. R’y Co., 42 La. Ann. 350, 7 South. 682, 21 Am. St. Rep. 374; L. L. & G. Rld. Co. v. Rice, 10 Kan. 426; W. & W. Rld. Co. v. Davis, 37 Kan. 743, 16 Pac. 78, 1 Am. St. Rep. 275; C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993; A. T. & S. F. Rld. Co. v. Shaw, 56 Kan. 519, 43 Pac. 1129; Railway Co. v. Dawson, 64 Kan. 99, 67 Pac. 521.) In the last-named case an instruction given by the district court and sustained reads:
“It was the duty of the plaintiff in crossing the said track to use and exercise ordinary care to avoid injury; and if she failed to exercise ordinary care, or in other words if she was guilty of ordinary negligence which contributed directly or proximately to the alleged injury, then the defendant is not liable for the alleged injuries, even if they were received by her. By ordinary care is meant that degree of care which men'in general exercise in respect to their own concerns; and by ordinary negligence is meant the omission or want of that degree of care which men in general exercise in respect to their own concerns. The burden of proof is upon the defendant to show by a preponderance of the evidence that the plaintiff was guilty of contributory negligence. With that exception, the burden of proof is upon the plaintiff to prove her case by a preponderance of the evidence.” (Page 104.)
What constitutes ordinary care depends upon the special circumstances and conditions of each case. The conditions existing at different crossings, and the varying situations of persons about to cross, present phases of danger which differ so widely from each other that it seems impracticable, if not impossible, to fix a standard of duty in this respect which could be of general application. Therefore courts have, as a rule, limited their decisions upon this subject to the determination of what constituted ordinary care under the facts presented in the case being considered.
It has been generally held that ordinary prudence requires every person about to cross a railroad track to look and listen for approaching trains before going upon the crossing. If the track is clear and the view unobstructed, the performance of this duty will be prompted by a natural apprehension of danger. If obstructions intervene, so as to prevent a clear view, of the track, it may become the duty of the traveler to stop, stand up in his vehicle, and look and listen, or, in rare cases, get out and examine the track in advance of his team. In all cases the precaution to look and listen should be taken when the distance from the crossing will not make it unavailing. (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Clark v. Mo. Pac. Rly. Co., 35 Kan. 350, 11 Pac. 134; Railroad Co. v. Brock, 64 Kan. 90, 67 Pac. 538; Railway Co. v. Jenkins, 74 Kan. 487, 87 Pac. 702; The Cincinnati, Indianapolis, St. Louis and Chicago R’y Co. v. Howard, 124 Ind. 280, 24 N. E. 892, 8 L. R. A. 593, 19 Am. St. Rep. 96; 7 A. & E. Encycl. of L. 429.)
Applying this rule to the facts here shown, we are unable to find the deceased guilty of contributory negligence. It does not appear that he had ever passed over that road before, or knew the condition of the railroad track, its proximity to the hill or any of the facts which made the crossing especially dangerous. No reasonable application of the rule of ordinary care will require a person 'to take precautions against a danger of which he is ignorant. When the deceased reached the point on the top of the hill 245 feet from the railroad crossing he was not aware that he could not thereafter see down the railroad track to the southeast until he was too close to the crossing to protect himself from a train coming from that direction. The darkness prevented him from seeing the condition of the ground between that point and the track. In the absence of knowledge to the contrary he might assume that in crossing the railroad here he could see approaching trains when far enough away to enable him to protect himself from danger, the same as at the ordinary crossing. In the absence of some knowledge on his part .of the dangers here to be avoided we can not say that the deceased was guilty of contributory negligence.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by L. Friend against the city of Atchison to recover the amount due. on special-assessment bonds issued by the city in compensation for the improvement of a certain city street. In October, 1885, John Early entered into a contract with the city of Atchison to macadamize a part of Commercial street, and in consideration for the improvement the city agreed to, and did, issue a series of special-assessment bonds. The improvement was satisfactorily made by the contractor and the city issued two bonds against each abutting lot, each bond being for one-half of the amount charged against the lot. The following is a copy of the assessment bonds which were issued:
“$17.72 No. 2664.
SPECIAL-ASSESSMENT BOND.
The City of Atchison, State of Kansas.
August 30, a. d. 1886.
“To the Treasurer of the City of Atchison:
“Pay to John Early, or bearer, the sum of seventeen and 7t1oo dollars, only out of money in the treasury collected for assessments made in the year 188— on lot 20, in block 21, C. A., for macadam Com’l street from Ninth to Tenth Sts.
“By order of the city council.
(Signed) S. H. Kelsey, Mayor.
Attest:
[SEAL] T. B. Gerow, City Clerk.”
The bonds were duly transferred by the contractor to the plaintiff, and in December, 1891, the latter brought an action against the city to recover the amount of the assessments due on 115 pieces of property because of the alleged failure and neglect of the city to levy and collect the special assessments. Subsequently, and during the pendency of the action, a large number of the special-assessment bonds were paid, but payment was not made on a number of them, and the action as to these was continued from term to term. Taxes continued to accumulate on the lots liable for the unpaid bonds until the passage, in 1901, of the act authorizing the collection of delinquent taxes upon real estate by judicial proceedings. (Laws 1901, ch. 392; Gen. Stat. 1901, §§ 7718-7724.) In foreclosure proceedings in 1902 the lots in question, excepting five in number, were sold at a tax sale, and the city received from the proceeds of the sale an amount representing the proportion which the special assessments bore to the whole taxes against the properties. The plaintiff amended his petition and asked for the recovery of the amount received by the city as the result of the foreclosure sale of the lots subject to the special assessment. For this amount the court awarded judgment on what has been designated as the first class of assessment bonds. '
An assessment had been made for what is called the second class of bonds chargeable against three other lots. As to these it appears that in 1900 the mayor and council of the city adopted a. resolution requesting the county commissioners to permit the redemption of the lots upon the payment of one dollar and the completion of a one-story brick structure thereon, as an inducement to the improvement of the property and to make it thereafter productive of a tax revenue. In compliance with the request of the city council the county commissioners ordered the redemption on the terms named, and the county clerk notified the county treasurer of the order of the board permitting a redemption, and in September, 1900, the lots were redeemed and the entry of the redemption placed on the tax-sale record.
A distinct claim is made as to what is designated as the third class of special-assessment bonds upon two other lots, which were acquired by the city from the owner of the fee title in 1902 for the purpose of locating thereon a branch of the city fire department. The city, through its mayor and council, by resolution notified the board of county commissioners that the lots had become the property of the city, and requested that board to remit all taxes against the lots and to instruct the county clerk not to place them on the tax-rolls. In compliance with this request the board of county commissioners remitted all unpaid taxes and directed the county clerk to strike the property from the assessment rolls, for the reason that the property belonged to the city and was not taxable. The county treasurer entered upon the record of tax sales opposite these lots the notation: “Canceled by order of the county board, June, 1902.”
As to the liability of the city for the money paid upon the bonds of the first class there is little room for controversy. The improvements were made under a contract with the city. The contractor performed the work- and made the improvements to the satisfaction of the city. Under statutory authority the city issued special-assessment bonds to the contractor. (Laws 1881, ch. 37, §.38; Gen. Stat. 1901, § 762; Laws 1885, ch. 95, § 3;- Gen. Stat. 1901, § 765.) These bonds became a charge upon the lots and pieces of ground abutting upon the improved street, and upon this property assessments were made by the city to pay the bonds. The obligations arising on the bonds and assessments are to the city, and not to the contractor who made the improvement. The lot-owners are never primarily or directly liable to the contractor. He has- no right to interpose in the tax proceedings by which assessments are levied and collected. If the city neglects or refuses to make the assessments and to perform the duties devolving upon it in levying and collecting these special taxes the contractor has no means of obtaining compensation from that source, and his remedy is a direct action against the city for the amount of the indebtedness. (City of Leavenworth v. Mills, et al., 6 Kan. 288; City of Wyandotte v. Zeitz, 21 Kan. 649; City of Atchison v. Byrnes, 22 Kan. 65; City of Atchison v. Leu, 48 Kan. 138, 29 Pac. 467; Heller v. City of Garden City, 58 Kan. 263, 48 Pac. 841.) By the process of taxation, including the foreclosure, portions of the assessments made for the payment of the bonds in question were collected and paid over to the city treasurer, but the city refused to pay that money to the plaintiff. Funds obtained upon assessments, whether paid in the ordinary way or through judicial proceedings to enforce tax liens, go into the treasury of the city and not into the hands of the contractor or his assignee. As was said in. City of Atchison v. Leu, supra:
“The contractor is no better off after the city has made the assessment and the tax is paid over to the county treasurer than before -this is done, if he can not look to the city for his pay, because he has no means by which he can get the money collected to pay his claim out of the county treasury.” (Page 140.)
So it was held in that case that the law required the city to collect the tax and when collected to pay it to.the contractor. The statute authorizing the foreclosure proceeding requires that the proceeds of the sale shall be applied to the payment of the tax liens charged against each piece of the lands sold. (Laws 1901, ch. 392, § 3; Gen. Stat. 1901, § 7720.) When the city refused payment of the funds derived from that source it made itself liable to the plaintiff, at least to the extent of the money received. None of the objections made to the payment of the funds resulting from the assessments which were collected through the regular agencies of the law appears to be substantial.
As to the liability of the city on the second class of bonds other questions arise. The assessments' on the lots involved were made by the city and certified to the county officers for their action, but no attempt was made to forclose these tax liens. The assessments were not enforced because, under an order of the county commissioners, the lots were redeemed for the sum of one dollar. The theory upon which the city was held upon these special-assessment bonds was that it had prevented the enforcement of the liens and procured their cancelation and had thereby disabled itself to pay the bonds to the contractor. It is true that the mayor and council of the city did request the board of county commissioners to accept one dollar for the redemption of the lots, “upon the completion of a. one-story brick structure upon the existing foundations thereon as an inducement to the improvement of the same so as to make the same hereafter productive of a tax revenue.” In response to this resolution the county commissioners agreed to accept one dollar in full payment of the taxes due on the lots when the building mentioned should be erected, equipped and ready to operate as a factory. The following is the material part of the order:
“In compliance with the request of the city council of the city of Atchison, Kan., relative to their action of April 2, 1900, it is hereby agreed and ordered that this board will accept one ($1) dollar in full payment of all taxes due to date on lots [describing them] when the one-story brick building is erected on the foundation already there, and the necessary machinery and appliances are in position to do business as a factory.”
It was decided by the county commissioners that the condition upon which the redemption was ordered had been complied with by the Baker-Yawter Company, and the county clerk then notified the county treasurer of the fact and that officer made an entry of the redemption of the lots on the tax-sale record. What was the effect of the request of the city officers and of the redemption authorized by the county commissioners? Did the action of the city render it liable to the contractor for the assessments charged against the lots? If it had refused to make an assessment or to put the taxing machinery in motion as the law provides it may do for the collection of special taxes for the lot-owners it would have become directly liable to the contractor, but in fact it did make the assessment and did certify its action to the county commissioners. That was the extent of the duties enjoined by law upon the city officers until the taxes had been collected and paid over to the city treasurer. It was the county commissioners who made the compromise and ordered the redemption of the lots. It is true that the city requested the board to order the redemption, but its action was no more than advisory. The county commissioners were not bound to heed the advice of the city officers, and the resolution of the mayor and council did not affect either the powers or the duties of that board. That tribunal was vested with authority to compromise the taxes and to order redemption with or without the consent of the city. (Gen. Stat. 1901,' § 7672.) The amount for which the lots were redeemed was very small, it is true; but the statute provides that the county commissioners may permit redemption for any sum less than the legal. taxes, as shall in their judgment be for the best interests of the public. There is no claim that the commis sioners acted in bad faith in the premises, and it maybe assumed that they deemed it to be for the -public interest to accept the small sum and to have the property placed upon the tax-roll at a valuation which would make it produce considerable tax revenue. It may be said that this will operate practically to deprive the contractor of any compensation for the improvement made opposite these lots, but he must be deemed to have entered into the contract with a knowledge of the law authorizing a compromise and to have assumed the risk that the property improved might be redeemed at a sum much less than the special tax charged against it. Under this contract he was only entitled to demand payment for the improvement when the assessments made for that purpose had been assessed and collected through the regular agencies of the law. One of the exigencies of a contract, of this character is that the city, after doing its part and using the processes provided by law to collect assessments for the contractor, may not be able to collect more than a small part of the assessment. When the city had done all that was required of it by the contract and by statute its liability to the contractor was at an end.
There can be no question as’ to the liability of the city upon the third class of bonds. While the assessment stood as a charge against the lots the city purchased them for the use of its fire department and placed the title to them in the name of the city. Since that time the lots have been devoted to that public use. In buying the lots and appropriating them to such use,as it had a right to do, the city necessarily assumed the liens existing against them. Property owned exclusively by a city is exempt from taxation or from forced sale for taxes. When the city purchased this property it tied the hands of the authorities so that they could not collect the assessments or enforce the liens existing against the lots. It practically disabled itself to carry out the contract and to provide a fund for meeting the assessments, and hence made itself liable for the amount of the debt. A street in the city of Ottawa was macadamized in front of public ground used for a courthouse, and a special assessment was levied against the property. It was held, upon a contest, that the property was subject to assessment for the improvement,, but that on account of the use to which it was applied it could not be disposed of at forced sale to meet the special assessment. It was there said that in case the county refused to pay the special assessments “there is no impropriety, after the claim is disallowed, in permitting the district court, on appeal, to adjust the amount thereof. The judgment can then be paid as other judgments against the county.” (Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 757, 31 Pac. 788, 33 Am. St. Rep. 396.)
If the city had obtained the lots for a public use by condemnation it would have been required to pay for them, including the interests or liens based on the assessments, and it can not escape liability therefor by purchasing the lots and placing them beyond the reach of the taxing officers. It is a general rule that a contracting party who voluntarily disables himself from carrying out a contract or who does that which prevents performance renders himself absolutely liable on the contract. (Dill v. Pope, 29 Kan. 289.) The city had, of course, the right to purchase the lots for public use, but when it did so, and thus made it impossible to collect the assessments against the property, it became absolutely liable for so much of the assessments as were charged against these lots.
The findings of the court must be sustained as to the liability (É the city on the first and third classes of bonds, but the finding of liability on the second class of bonds must be set aside.
The cause will therefore be remanded, with • directions to enter judgment against the city for the amounts named in the first and third conclusions of law. Judgment will be denied on the claim mentioned in the second conclusion of law. | [
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The opinion of the court was delivered by
Graves, J.:
Complaint is made of instruction No. 6, the objection being that it permitted the jury to find for the plaintiff upon a state of facts contrary to the averments of his petition and in opposition to his proof. The petition avers that the note was executed by E. N. Burr, and that the property described in the mortgage was then owned by him. The copy of the note and mortgage attached to the petition indicate the facts to be as alleged. There is no suggestion that the partnership of E. N. Burr & Co. was in any way connected with or concerned in the transaction. While testifying as a witness the plaintiff appeared to be familiar with the firm of E. N. Burr & Co., and also with the business of E. N. Burr individually. He worked for E. N. Burr & Co. at Paola in 1905, and for E. N. Burr, individually, during January and February, 1906, at Topeka. They operated in different fields. Apparently the plaintiff was in a position to know the business of each and to plead and testify understandingly. The rule that a plaintiff must recover, if at all, upon the facts stated in his petition is well settled. (11 Cyc. 158; Brenner v. Bigelow, 8 Kan. 496; K. P. Rly. Co. v. Dunmyer, 19 Kan. 539; A. T. & S. F. Rly. Co. v. Irwin, 35 Kan. 286, 10 Pac. 820; St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543; 18 Pac. 720; Ins. Co. v. Thorpe, 40 Kan. 255, 19 Pac. 631; Newby v. Myers, 44 Kan. 477, 24 Pac. 971; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; C. K. & W. Rly. Co. v. Bell, 1 Kan. App. 71, 41 Pac. 209.)
To avoid inconvenience from the enforcement of this rule ample opportunity is afforded under the statute to amend the petition at any time before judgment. If the plaintiff was deceived by E. N. Burr, and thereby induced to accept a mortgage on partnership property, which fact was not discovered until after the commencement of this trial, he should have obtained leave to amend his petition, and then stated the facts as they really were. Not having done so, the case must be determined upon the petition as it is. The instruction of the court, of which complaint is made, presented to the jury an issue which was not in the case, and for that reason was erroneous.
Other questions are discussed, but as this decides the case none of them needs- to be considered. The judgment is reversed, with direction to proceed in accordance with the views herein expressed.
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The opinion of the court was delivered by
Fatzer, J.:
These two appeals involve the care and custody of two little girls five and seven years of age. The appeal from Johnson district court (No. 45,958) was perfected by the mother, from the judgment granting the father’s petition for a writ of habeas corpus for the custody and control of the two children. The appeal from Wyandotte district court (No. 45,957) was perfected by the father, from the judgment granting the mother a divorce and awarding the care and custody of the children to the mother.
The parties will be referred to by their given names, Sandra, the mother, and Daniel, the father. In referring to the district court judges, reference is made to the Honorable William J. Bums, judge of division No. 2 of the Wyandotte district court, as Judge Bums, and to the Honorable Raymond H. Carr, judge of division No. 3 of the Johnson district court, as Judge Carr.
Sandra and Daniel are young people in their twenties. Sandra was raised by her uncle and aunt, Mr. and Mrs. James C. Comte, 1954 North 28th Street, Kansas City, Kansas, who occupied the relationship of foster parents.
On September 3, 1960, Sandra and Daniel were married at Miami, Oklahoma. On March 22, 1962, a divorce was granted to Sandra from Daniel by the Circuit Court of Jackson County, Missouri. Later that same year, and on August 29, 1962, Sandra and Daniel were remarried in Kansas City, Missouri. On November 8, 1962, their eldest daughter, Georgia, was born. Sixteen months later, and on March 15, 1964, their youngest daughter, Victoria, was born.
The parties continued to reside in Kansas City, Missouri, until October 2, 1965, when Sandra and Daniel separated. Daniel moved to California and secured employment. In November 1965, Sandra filed a divorce action against Daniel in the Circuit Court of Jackson County, Missouri, which she later dismissed. Shortly thereafter, Sandra and the two children moved into the Comte home in Wyandotte County. In February 1966, the Comtes took the two children to Daniel in California without notice to, or the consent of, Sandra.
On November 1, 1966, Daniel filed suit for divorce from Sandra in the Superior Court of Los Angeles County, California. Daniel’s verified complaint alleged statistical facts that the parties were married September 3,1960 (the parties’ first marriage in Oklahoma), and were separated October 2, 1965. Two causes of action were alleged. The first, that Sandra willfully deserted and abandoned Daniel, and continued to live apart from him without just cause and against his will and without his consent. The second, that Sandra treated Daniel with extreme cruelty. The relief sought was drat “the bonds of matrimony heretofore and now existing between the parties be dissolved.” Further, that the care and custody of the two minor children be awarded to Daniel. Service of summons by publication was obtained on Sandra in California, and on January 13, 1967, she was personally served with a copy of the summons and divorce complaint at 615 W. 39th Terrace, in Jackson County, Missouri.
On February 27, 1967, Sandra wrote Daniel’s lawyer in California concerning the divorce proceedings, stating:
“You are handling a divorce action for Daniel A. Perrenoud. It was filed November 1, 1966. I would like to know if this action is going through, if so when is it to be completed? Or has your client dropped the case? It is most important that I know. Would you please reply?”
The letter was signed, “Mrs. Daniel A. Perrenoud, 615 W. 39th St. Terr., Kansas City, Missouri.”
On March 3, 1967, an interlocutory judgment of divorce was granted Daniel by default, and the care and custody of the two minor children was granted to him with the right of reasonable visitation by Sandra. On that same day, March 3, 1967, Daniel’s lawyer wrote Sandra advising her of the interlocutory divorce decree; that custody of the two minor children was awarded to Daniel, and that within one year Daniel would be able to obtain a final decree. Counsel warned Sandra against remarrying within the statutorily prohibited time and until a final decree was entered.
On April 15, 1967, and less than a month and a half after the interlocutory decree was granted by the California court, Sandra married Robert V. Brown. On May 27, 1967, a daughter was born to Sandra and Brown.
During the summer months of 1966, 1967 and 1968, at the request of the Comtes and with Daniel’s consent, the two children were returned to the Comte home in Kansas City and Sandra visited the children in the Comte home. At the end of the summer vacation each year the children were returned to Daniel in California.
On September 4, 1968, and upon Daniel’s application, the California court entered a final judgment of divorce. The decree provided “that plaintiff be and is granted a final judgment of divorce from defendant and that the bonds of matrimony between plaintiff and defendant be, and the same are, dissolved.” The final decree awarded custody and control of the minor children to Daniel with the right of visitation by Sandra at reasonable times. On December 14, 1968, Daniel remarried in California.
All dates hereafter stated refer to the year 1969, except as is expressly noted.
On June 12, Sandra went to Los Angeles, employed counsel to represent her, and filed her declaration or application to modify the California decree of divorce as to the custody of the minor children, alleging a change in circumstances and conditions. Sandra’s declaration also sought a change in the visitation rights or privileges whereby each summer commencing on the day following the end of the school term in June and continuing until the first day of September, the children would be delivered to her at a "prearranged time and date, and alleged that she would deliver the children to Daniel at a prearranged time and date on or before September 1, of each year. Sandra also asked the court to appoint an investigator to determine which parent should have the care, custody and control of the children, and that the hearing be continued to a future date for decision. Daniel’s declaration in opposition to Sandra’s application alleged he had offered her three weeks unrestricted visitation with the children at her home in Johnson County commencing on a date after summer school ended in Redondo Beach, which offer was rejected by Sandra but that the offer was still available to her.
On June 5, and prior to Sandra’s going to California to file a motion to modify the California decree, she and Brown were remarried in Wyandotte County.
On June 24, Sandra’s application to modify the divorce decree and Daniel’s declaration in opposition thereto were heard by the California court. Sandra and Daniel personally appeared together with their respective counsel. The California court sustained Sandra’s application for visitation privileges and authorized her to take the youngest child, Victoria, with her to Johnson County, and ordered that the older child, Georgia, be sent to Johnson County when she finished her summer school program on or about July 25. The order directed that both children be returned by Sandra to Daniel in California on or before August 27. In addition, the court appointed an investigator to determine which parent should have the custody of the minor children, and a hearing thereon was continued to a future date.
On June 25, Sandra took Victoria to her home at 5213 Alder Drive, Shawnee Mission, Kansas, and on or about July 25, she went to California and brought Georgia to her home in Shawnee Mission.
On August 22, Sandra filed a petition for divorce from Daniel in the district court of Wyandotte County, and sought the care and custody of the two minor children. She alleged the dates of her two marriages to Daniel and her divorce in Jackson County, Missouri, from their first marriage on September 3, 1960. She further alleged the California decree divorced the parties only insofar as their Oklahoma marriage of September 3, 1960, was concerned, and in effect it did not dissolve their second marriage in Kansas City, Missouri on August 29, 1962. She obtained an ex parte order granting her protective custody of the two minor children. Service of summons was sought upon Daniel in California, but was returned unserved.
On or about August 25, Daniel telephoned Sandra at her home at 5213 Alder Drive, Shawnee Mission, to inquire on what flight the two children would be returned to him in California. Sandra advised him she was not permitting the children to return.
On the same day, August 25, Sandra enrolled Georgia and Victoria in Roeland Park Elementary School in Johnson County. The children were enrolled under the name of Brown and their home address was shown as 5213 Alder Drive. Sandra’s home was about four blocks from the Roeland Park School, and under the item “Transportation” the enrollment card stated the children would walk to the school. Georgia started to the Roeland Park school on August 28, and Victoria commenced kindergarten on September 2.
On September 2, and armed with the California decree, Daniel came to the Kansas City area and attempted to secure possession of his two daughters. He went to the Roeland Park Elementary School, picked up Georgia, and took her to his father’s home in Jackson County, Missouri. In seeking to locate Victoria, he went to the Comte home and was advised Victoria was not there. He called Sandra at her home in Shawnee Mission to inquire as to the whereabouts of Victoria. He advised Sandra he had picked up Georgia at the school. Shortly thereafter, four police cars of the Kansas City, Kansas, police department arrived at the Comte home and took Daniel to the police department where he was placed in jail and held until a deputy sheriff served him with process in the divorce action which had been filed by Sandra on August 22. He was thereafter released without charge. On advice of counsel, and on the same day, September 2, Daniel returned Georgia to Sandra.
On September 12, Daniel commenced the habeas corpus action in Johnson County and a writ was issued. On the following day, service was made upon Sandra at 5213 Alder Drive.
The minor children continued to attend the Roeland Park school, but after September 13, Sandra took them out of the Roeland Park school and enrolled them in a school in Wyandotte County. There was evidence that when the divorce action was filed, Sandra temporarily separated from Brown and went to live with her foster parents at 1954 East 28th Street, Wyandotte County, and that Brown went to live with his mother in Kansas City, Kansas. There was also evidence that Sandra or the Comtes made at least three or four trips a day in an automobile to transport the children from the Comte home on North 28th Street to and from the Roeland Park school until their enrollment in school in Wyandotte County.
On September 22, Daniel filed a motion to dismiss Sandra’s divorce action and to set aside the ex parte order issued on August 22. The motion was lengthy and alleged that the Wyandotte district court did not have jurisdiction of the subject matter inasmuch as the parties were lawfully divorced on March 8, 1967, in the Superior Court of Los Angeles, which decree was made final on September 4, 1968; that the decree and judgment of the California court was entitled to full faith and credit and a true copy of the proceedings authenticated under the Acts of Congress was attached; that Sandra did not allege that conditions had changed insofar as the custody of the minor children was concerned between June 24, and August 22, the date the divorce petition was filed; that the matter sought to be litigated was res judicata in that the same subject matter was litigated to finality in the California court, which judgment had not been set aside, reversed or modified; that Sandra was estopped to deny the decree of the California court in that she acquiesced in the same and recognized its validity by remarrying Brown in Wyandotte County on June 5, after the entry of final judgment, and by her appearance in the California court a short time thereafter through the process of her declaration for modification of her rights of visitation, and, further, by the fact that in the previous summers the children were permitted to return to Kansas and reside in the home of her foster parents where Sandra visited them.
Daniel further alleged that the filing of Sandra’s declaration for modification in the California court was the perpetration of a fraud by her on that court, and the filing of the divorce action was the perpetration of a fraud on the Wyandotte district court in that she filed her declaration to modify the California decree solely for the reason of removing the children from California to Kansas, and that the filing of the divorce action was fraudulent in that Sandra had never abandoned her residence and domicile in Johnson County, and had not established a domicile in Wyandotte County, and that the two minor children on August 22, or thereafter, were not domiciled and did not reside in Wyandotte County but were enrolled in the public schools in Johnson County. Daniel further alleged, “[t]hat the acts of the plaintiff combined to perpetrate a fraud on both the California and the Kansas courts.”
On September 25, a partial hearing was held before Judge Carr on the habeas corpus action. Upon being advised that Daniel’s motion to dismiss the divorce action would be heard by Judge Burns the following day, September 26, Judge Carr continued the hearing on the habeas corpus action to September 29.
On September 26, the motion to dismiss the divorce action was partially argued before Judge Burns. He advised he would make an independent investigation on the question of the residence of Sandra and the children and would rule on the motion the same day. The record indicates Judge Burns directed the probation officer of his court to take statements of Sandra’s witnesses, which was done that day. Thereafter, the probation officer made his report to Judge Burns, who concluded Sandra was a resident of Wyandotte County on August 22, and overruled the motion to dismiss.
On September 29, a full hearing was held before Judge Carr on the habeas corpus action. Daniel and Sandra appeared in person and with counsel and both sides offered evidence in full. At the conclusion of the hearing, Judge Carr made findings of fact and conclusions of law granting the writ of habeas corpus and directed Sandra to deliver the two children to Daniel. Judge Carr’s findings and conclusions read:
. . As far as the divorce action is concerned, this court doesn’t have anything to do with the divorce action. The only action that this court has before it is a Writ of Habeas Corpus based upon the detention of the children . . . by the mother of the children to the exclusion of the father, and the father has a decree of the District Court and an Order of the Superior Court of California, in which he was granted the custody of the children and the mother granted visitation rights. Now, this mother over the period of the last two and a half years on the basis of the evidence that I have in this case, and nothing else, has disregarded the California court except when it was to her advantage to recognize the California court. She disregarded the California court at the time of the original divorce, which didn’t become final until September the 4th, according to the evidence that I have in this case, 1968. She married on April 15, 1967 and a child was born of that marriage in May of 1967. Then last year, no, this year, in June she went to California for the purpose of and securing an Order of that court modifying the decree and giving her visitation rights to August 27th of this year. She acquiesced and took direct action in the California court at that time and the court granted her the relief, but then she doesn’t want to recognize that court as valid at all.
“On top of that as the evidence developed today, is that she remarried her present husband in the early part of this summer, in order, the court must assume, to have a valid marriage at the time she went out for a modification of the decree. She brought one child back and the other one, in accordance with the California court, was transported here to her, sent out by the plaintiff in this action. The plaintiff in this action called the defendant in this action at the Alder address on the 25th of August to find out what plane the children were coming in on, and was notified and told by the defendant, who was at that address at that time, that the children weren’t coming back. Then he arrived here and the next activity between the two parties is that he went to the school in Johnson County, Kansas, and got the older of the two girls, who was in school at that time.
“In the meantime and after the plaintiff alleged that she moved from the Alder address to the Wyandotte County address, she enrolled the children in school, which I believe was August 25th and gave her address at that time as 5213 Alder Drive.
“The court does not have any doubt at all that under the facts presented in this case that the detention of the children at the time the temporary order was entered in this case . . . was in Johnson County, Kansas. That is where they were being detained. They were in school at the time the order was entered, and she was served on the 13th at the address. I believe the 13th is correct.
“The court doesn’t have any hesitancy at all to say that the detention was in Johnson County at the time this action was filed and at the time that the Order was served setting up the hearing for last Friday.
“The court is going to overrule the contentions of the defendant and the Writ is going to be granted in accordance with the Order of the California court.”
Judge Carr stayed the court’s order directing delivery of the minor children to Daniel upon the posting of a supersedeas bond by Sandra in the amount of $10,000. Thereafter, Sandra perfected her appeal.
On October 31, Judge Burns overruled Daniel’s motion for an order staying the divorce action with respect to all matters pertaining to the two minor children until the appeal from the habeas corpus judgment had been determined by the supreme court. On November 17, the divorce action proceeded to trial on the merits. Sandra was granted a divorce from Daniel and Judge Burns found it was to the best interest of the minor children that they be placed in the care, custody and control of Sandra, and that she was a proper and fit person to have their custody. Daniel was ordered to pay child support and attorney fees. Daniel duly perfected an appeal from that judgment, and from the court’s order of September 26, with respect to its determination of Sandra’s residency in Wyandotte County. This court ordered the appeals consolidated on January 9, 1970.
The foregoing is the pertinent factual background of these complex appeals to the supreme court. Various contentions have been advanced and briefed by the parties, but we shall direct our attention to those points which are decisive of these consolidated appeals. When that is done, the points fall into their proper place.
Sandra has contended throughout this litigation the California divorce decree was invalid and not entitled to recognition in Kansas for the reason that Daniel’s complaint alleged a marriage between the parties which had been severed by the 1962 Missouri divorce decree. Her petition filed on August 22, was based upon the claim the California decree only divorced her from the first marriage on September 3, 1960, and not from the subsequent marriage on August 29, 1962, because the California decree in the statistical part of the complaint alleged only the date of the first marriage. The point is not well taken.
A valid marriage between the parties in a divorce action is a prerequisite upon which jurisdiction is based, and a divorce is the judicial dissolution of a marriage relationship. (In re Estate of Crump, 161 Kan. 154, 166 P. 2d 684.) Without the existence of a valid marriage, there is no occasion for granting a divorce. It is a prerequisite to obtaining a divorce decree that a marriage between the parties be proved, and that the court find the parties were man and wife at the commencement of the suit. An action for divorce insofar as it is limited to one for a divorce, is essentially a proceeding in rem, or speaking more accurately, quasi in rem. The res upon which the judgment operates is the status of the parties. (24 Am. Jur. 2d, Divorce and Separation, § 7, p. 181; 1 Nelson, Divorce and Annulment, 2d Ed., § 2.06, p. 28.) Where, as here, the divorce decree was entered against Sandra and in favor of Daniel in another suit in a sister state, it becomes necessary for Sandra to show that the decree was invalid and not entitled to recognition. The foreign decree carries a presumption of regularity, and Sandra’s proof failed to show its invalidity and that it was not entitled to recognition in Kansas.
The sufficiency of Daniel’s complaint and the validity of the divorce decree are to be determined by California law. The general rule is that a divorce decree valid in the state of rendition is valid everywhere, and a decree void in the state of rendition is void everywhere, permitting it to be collaterally attacked upon the ground the court lacked jurisdiction of the subject matter, or of the parties.
Section 426 (c) of the California Code of Civil Procedure requires certain statistical facts be alleged in a petition for divorce, such as the state and county in which the parties were married, the date of marriage, the date of separation, the number of years from marriage to separation, the number of children of the marriage, the ages and birth dates of minor children, and the Social Security number of the husband and wife. The facts are required to be set forth for statistical purposes to be collected by the Bureau of Vital Statistics of that state. (Thomas v. Thomas, 66 C. A. 2d 818, 153 P. 2d 389.) Under the California statute, not every statistic is vital to the sufficiency of a petition for divorce, and allegations as to time and place need only be reasonably complied with. The object is to apprise the defendant of the charges to be met. (3 Nelson, Divorce and Annulment 2d Ed., § 24.08, p. 17.) The important allegation in a petition for divorce is that a marriage relationship exists between the parties at the commencement of the action, which is sought to be severed by the divorce proceeding. (1 Nelson, Divorce and Annulment, 2d Ed., § 2.06, p. 29; 24 Am. Jur. 2d, Divorce and Separation, § 295, p. 446.) Moreover, errors alleged in a divorce petition present matters for defense which should be pleaded by answer. (Thomas v. Thomas, supra.)
While it does not appear that Missouri has a statute similar to Sec. 426 (c) of the California Code, in Stratford v. Stratford, 225 S. W. 2d 160, it was contended that because the wrong date and place of the marriage were recited in the petition, the court had no jurisdiction to render the divorce decree. In denying the contention, the Missouri Court of Appeals said:
“. . . It was not necessary for the petition to allege the date and place of the marriage in order to state a good cause of action. There can be but one lawful contract of marriage between a man and a woman at a given time, and the mere fact that a wrong date and place of entering into the contract may be given, will not defeat the jurisdiction of the court. . . .” (p. 161.)
It was further said:
“. . . The allegation in the petition of the time and place of marriage was surplusage, so far as the cause of action was concerned, and the fact that such allegations were erroneous should not render the decree void. The purpose of the suit was to dissolve the only marriage contract existing between the parties.” (p. 161.)
It is conceded Daniels verified complaint filed November 1, 1966, alleged the parties were married September 3, 1960, but it further contained the basic and required allegation that they were then husband and wife, and the parents of two minor children. The complaint alleged two causes of action: Sandra’s desertion of Daniel, and that she was guilty of extreme cruelty. It correctly alleged the date of separation of the parties as October 2, 1965, and that the minor children of the marriage were in Daniel’s custody. The relief sought was that “[t]he bonds of matrimony heretofore and now existing between the parties be dissolved.” It is conceded personal service of summons was obtained upon Sandra in Jackson County, Missouri, which was sufficient to constitute constructive service upon her. Although she did not appear and was in default, the California court heard Daniel’s evidence, and on March 3, 1967, an interlocutory judgment of divorce was entered adjudging that Daniel was entitled to a divorce from Sandra — not a divorce from any particular marriage. Later, and on September 4, 1968, Daniel was granted a final judgment of divorce from Sandra, which recited that “the bonds of matrimony between plaintiff and defendant be, and the same are, dissolved.” It also awarded Daniel custody of the minor children with rights of reasonable visitation in Sandra. We believe there can be no question but that under the status of affairs between the parties as above set forth, the California court had jurisdiction of the subject matter of divorce and of the parties, and properly proceeded to render its decree. That decree was rendered in accordance with the laws of that state, and we are of the opinion it dissolved the marital relationship between Sandra and Daniel and restored them to the status of single and unmarried persons.
It is the settled policy of this state to recognize decrees of divorce of sister states as being effectual to terminate the marital relation of the parties where such decree is procured in harmony with the laws of the state where it is rendered. (Kirby v. Kirby, 143 Kan. 430, 55 P. 2d 356; King v. King, 185 Kan. 742, 347 P. 2d 381.) The California decree of September 4, 1968, was in every respect a valid decree of divorce, and was entitled to full faith and credit in this state under K. S. A. 1970 Supp. 60-1611, insofar as it had the effect of dissolving the marital status of the parties. (Willoughby v. Willoughby, 178 Kan. 62, 283 P. 2d 428.) The decree was properly pleaded and was admitted of record in Judge Burns’ court, and was res judicata to the question of divorce in Kansas. (Hardman v. Hardman, 203 Kan. 825, 827, 457 P. 2d 86; Kirby v. Kirby, supra.) Sandra made no direct attack upon it in the California court, nor did she make any effort to have it set aside there. Moreover, she was estopped by her conduct to question the California decree since she recognized its validity in at least two respects: First, she married Brown twice on the strength of its rendition, once in 1967, in violation of the interlocutory decree, and again in 1969, in recognition of the final decree, on the assumption that, as Judge Carr found, “she wanted to present a valid marriage prior to her entry into the case in California.” The validity of a divorce decree cannot be questioned in a collateral proceeding concerning any rights arising out of a marital relation, by a spouse who takes advantage of such decree by remarrying. (Restatement of the Law, Conflicts of the Law, § 112, pp. 169, 170.) Secondly, she went to California, employed counsel, and sought and obtained important rights through that court’s judgment, granting her visitation rights for the summer months of 1969. Having obtained the relief desired, she repudiated the action of the California court by filing the divorce case in Wyandotte County on the theory its decree did not divoi'ce the parties from their second marriage. In short, she took what she deemed beneficial from the California decree, and when it suited her purpose to proceed otherwise, she ignored the decree. She is barred by such conduct for at least two reasons— the California decree was conclusive as an adjudication, and the practice demonstrated by Sandra cannot be tolerated. A party cannot invoke the jurisdiction and power of a court for the purpose of securing important rights from his adversary through its judgment and, after having obtained the relief desired, repudiate the action of the court at his whim and caprice. (Kirby v. Kirby, supra; Browning v. LeFevre, 191 Kan. 397, 381, P. 2d 524.)
The California decree constituted a bar to Sandra’s action in Wyandotte County for a divorce between the same parties. She had no cause of action for that relief in Judge Burns’ court. As indicated, the existence of a valid marriage between the parties is a prerequisite upon which jurisdiction is based. While Judge Burns’ court had jurisdiction of the parties by personal service upon Daniel in Wyandotte County, it had no jurisdiction of the subject matter of divorce in Sandra’s action filed August 22. No marital relation existed to litigate about because the California decree had effected a severance of that relation or status. It follows that Judge Burns’ judgment of November 17, 1969, was as fundamentally erroneous as if an action had been commenced to divorce parties who were never married.
Sandra argues that even if Judge Burns was in error in concluding the California decree did not divorce the parties from their marriage, no ground for reversal is present. Reference is made to the rule of this court that a judgment of a district court should be upheld on appeal, if the same be correct, although the court may have relied on a wrong ground, or assigned a wrong reason for its decision, and to Pierce v. Board of County Commissioners, 200 Kan. 74, 81, 434 P. 2d 858, and cases therein cited. She then argues that if Judge Burns arrived at the right result, that is, the welfare and best interests of the minor children who were present in the state and over whose parents he had in personam jurisdiction, that under K. S. A. 60-1606, and whether a divorce was granted or not, and regardless of the reasons for denying such relief, the transfer of custody of the minor children to Sandra should be upheld. The point does not require an extended discussion. As indicated, Judge Burns’ court had no jurisdiction of the subject matter of the divorce action, and no authority to make ancillary or final orders in the case. The statute referred to contemplates an action for divorce about which there is no question of jurisdiction, and a divorce is denied other than for the equal fault of the parties. In that event, the court may make orders authorized by the statute for the benefit of the minor children of the parties. Such a situation is not presented in the record.
Sandra further contends Judge Carr erred in refusing to dismiss the habeas corpus action and accord jurisdiction to' Judge Burns’ court where the divorce action was first commenced, on the theory of coordinate or concurrent jurisdiction. She relies upon Schaeffer v. Schaeffer, 175 Kan. 629, 266 P. 2d 282. The contention cannot be sustained. As indicated, the district court of Wyandotte County had no jurisdiction of the subject matter upon which it could grant Sandra a divorce — that had been done by the California decree. A court, having no jurisdiction of the subject matter, may not proceed on the theory of coordination or concurrent jurisdiction. Moreover, this court takes judicial notice that the Superior Court of Los Angeles County is a trial court having original jurisdiction in all civil cases. It likewise is a court of coordinate or concurrent jurisdiction. That court had jurisdiction over both parties and the subject matter, and, upon Sandra’s application, it was exercising continuing jurisdiction over the custody, welfare and best interests of the minor children. Sandra would limit the applicability of the rule of coordinate or concurrent jurisdiction solely to the courts of Kansas. The general rule is that courts should exercise comity between themselves in order to avoid expense and harrassment and inconvenience to the litigants. This general rule is applicable not only between courts of coordinate jurisdiction within the same state, but between federal courts and state courts, and between state courts of different states. (Schaefer v. Milner, 156 Kan. 768, 775, 137 P. 2d 156.)
It is not contended the divorce action was a “proper action or proceeding” relating to the custody and maintenance of the minor children of the parties pursuant to K. S. A. 1970 Supp. 60-1611. Sandra’s action was one to obtain a divorce from the Missouri marriage of the parties and was based upon Daniel’s extreme cruelty and gross neglect of duty. A proper action or proceeding for alimony, separate maintenance, property division, and custody and maintenance of minor children of the parties pursuant to K. S. A. 1970 Supp. 60-1611 is an entirely different cause of action from one for divorce. (King v. King, supra, Syl. ¶ 2.) The orders relat ing to the custody of the minor children were ancillary to the divorce action, and that action, and all proceedings and orders which followed, including the judgment rendered on November 17, must be regarded as a complete nullity, and void. We hold Judge Bums erred in failing to sustain Daniels motion to dismiss the action.
We turn now to the judgment of the Johnson district court granting the writ of habeas corpus. Sandra contends Judge Carr committed reversible error when he (1) refused to hear and consider evidence of her Kansas residence, and of changed circumstances and conditions with respect to the welfare and best interests of the minor children, and (2) in giving full faith and credit to the decree and order of the California court. She argues that since the California decree was entered by default on constructive service, and the children were physically present in the state, the habeas corpus action was a “proper action or proceeding” as contemplated by K. S. A. 1970 Supp. 60-1611, to determine the custody of the children.
It would unduly extend this opinion to summarize in detail the allegations of Daniel’s verified petition. It is sufficient to say the petition alleged the facts concerning the rendition and the provisions of the California decree; its modification on June 24, and the subsequent events which followed, all of which have heretofore been set forth; that the two minor children were then residing in Johnson County and enrolled in the Roeland Park school; that they were being unlawfully and forcibly detained by Sandra in Johnson County, where she was living and residing with her husband, and in violation of the California decree, which was entitled to full faith and credit in Kansas. Authenticated copies of die pleadings and the decree of the California case were attached. The prayer was that Sandra show the cause of such detention, and that Daniel be awarded the custody and possession of the two children.
Sandra’s amended answer denied that the California decree severed the marital relation, and paragraph 6 alleged that due to “changed circumstances and conditions arising subsequent to the decree of divorce in California, the decree should be modified giving custody and control of the children to the petitioner (sic), Sandra L. Perrenoud, now Sandra L. Brown.” The answer was filed September 26, which was subsequent to the time the children were ordered by the California court to be returned to Daniel on August 27. Hence, the children were being detained by Sandra in violation of the California order.
Paragraph 6 of the answer was made pursuant to K. S. A. 60-1505 (d), relating to habeas corpus, the pertinent part of which reads:
“. . . ’ If the restraint is found to be wrongful . . . the court may make such other orders as . . . the welfare of a minor physically present in the state may require. . . (Emphasis supplied.)
Following Judge Carr’s announcement that he was ordering Sandra to deliver the minor children to Daniel pursuant to the California decree, she made an offer of proof to show that when she was served with summons in the California action in Missouri on January 13,1967, she was a resident of Kansas and living in Johnson County. Counsel stated the proffer was made pursuant to K. S. A. 1970 Supp. 60-1611, which provides in substance that if a defendant in a divorce action commenced in another state was a resident of Kansas at the time the foreign decree was entered upon default, and such court did not have jurisdiction over the person, all matters relating to the custody and maintenance of the minor children shall be subject to inquiry and determination in any proper action or proceeding brought in the courts of this state within two years, as though the foreign decree had not been rendered. Sandra made a further offer of proof that the best interests of the two children would be served by permitting them to remain with their mother in Kansas. Judge Carr denied the proffers, and stated:
“. . . the last Order was the Order issued out of the California court, which she was personally present and which she represented and asked the court for the relief which she received on June 24th, I believe of 1969, and recognized it and accepted the jurisdiction of the court. She had remarried on the validity of the California decree. And this court, although it is not involved in the divorce action and doesn’t intend to interfere at all with the divorce action, is of the opinion that she is estopped to file an application for a divorce at this time.”
Whether a child custody order will be changed or modified rests in the sound judicial discretion of the district court and its action thereto will not be disturbed on appellate review unless the record makes it clearly appear its discretion has been abused. (Whitebread v. Kilgore, 193 Kan. 66, 68, 391 P. 2d 1019, and cases cited.) Hence, the question presented is whether Judge Carr abused his discretion under the circumstances, in giving legal effect to the final decree and custody order of the California court, and erred in refusing to hear Sandra’s proffer of Kansas residence, and of changed circumstances and conditions of the children following the rendition of the visitation order.
Without question, the paramount concern of courts in child custody proceedings is the welfare of the child. Beginning with the early cases written by Mr. Justice Brewer (In re Bort, 25 Kan. *308, and Chapsky v. Wood, 26 Kan. 650), this court has consistently adhered to the rule that when a controversy arises as to the custody of a minor child, the primary question to be determined by the court is what is for the best interest of the child. (Burns v. Burns, 177 Kan. 116, 276 P. 2d 308; Whitebread v. Kilgore, supra; Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989, and cases cited.) Our statutes now provide that “physical presence within the state” is made the jurisdictional basis for custody orders in divorce cases. (K. S. A. 60-1501; 60-1505 [d]; K. S. A. 1970 Supp. 60-1610 [a] [»].)
In the case at bar, the issue is complicated by all the facts and circumstances relating to the California decree and the visitation order which Sandra sought and obtained upon representation she would return the children to Daniel on August 27, and upon her application for a permanent change of custody of the children, which was continued to a future date. In less than one month after Georgia was delivered to Sandra’s home in Shawnee Mission, and five days before she was required to deliver the children to Daniel in California, Sandra commenced her divorce action in Wyandotte County and sought permanent custody of the children. Daniel then commenced the habeas corpus action in Johnson County. That Judge Carr’s court had jurisdiction in the instant case to hear evidence of changed circumstances and conditions is clear, particularly in view of Lyerla v. Lyerla, supra. That case held that an order awarding custody of a minor child in an action for divorce is res judicata only as to matters as they existed when the order was made, and does not bar later inquiry into the issue of custody when circumstances have changed if the child is physically present in the state, even though the court of another state had “concurrent jurisdiction.” The question presented is whether Judge Carr erred in giving effect to the California decree and order based upon “concurrent jurisdiction.”
Frequently courts have been faced with the problem whether to give “full faith and credit” or “comity” to a sister state’s decree and refuse to reexamine its merits, or to exercise their own discretion and protect the welfare of minor children within their jurisdiction. (Kirby v. Kirby, supra; Murphy v. Murphy, 196 Kan. 118, 410 P. 2d 252, 35 A. L. R. 3d 512; Leathers v. Leathers, 162 C. A. 2d 768, 328 P. 2d 853.) An analysis of our decisions shows that the solution has been as varied as human needs. This has resulted in the general rule stated in our cases, and restated in Lyerla v. Lyerla, supra. This court has recognized that a decree of a court of one state having jurisdiction relating to the custody of minor children, is, under the doctrine of “comity” prevailing among sister states, entitled to recognition in this state. However, full faith and credit has only limited application to child custody decrees; it is inherent in the nature of such a decree that it is not final and conclusive, but is subject to the right of the parties to show a change of circumstances and conditions. (Price v. Price, 187 Kan. 292, 356 P. 2d 1013; Moloney v. Moloney, 163 Kan. 597, 185 P. 2d 167; White v. White, 160 Kan. 32, 159 P. 2d 461.)
It is apparent that, on the basis of our statutes forming the basis of our “free discretion” rule and a rejection of “full faith and credit” or “comity” with respect to recognition of child custody decrees rendered by a court of a sister state, the door is open wide, so to speak, to “forum shopping” by scheming parents who seek a redetermination of their custodial rights in a more favorable jurisdiction, or seek to relitigate the question in courts of other states based upon an allegation of changed circumstances and conditions. Some decisions point out that such abuse may be prevented by the imposition of the “clean hands” doctrine which prevents a parent from invoking the court’s jurisdiction if he is a fugitive from the state issuing such decree, or has made misrepresentations in some way to obtain the custody of the children, or is flaunting a foreign proceeding or decree. The doctrine seems to be making advancement in family law and is being relied upon in some jurisdictions where the circumstances merit its application. In cases of this character, the court is dealing with a matter equitable in nature where the child’s welfare is the paramount consideration, and it is a familiar equitable maxim that “[h]e who comes into equity must come in with clean hands.” (Price v. Price, supra.)
The “clean hands” doctrine was formulated and approved in Leathers v. Leathers, supra, where it was held:
“Courts of this state, by invoicing the doctrine of ‘clean hands,’ will recognize and enforce custody decrees of a sister state, without reexamination of their merits and regardless of a change of conditions, where there is misconduct or malfeasance on the part of the parent seeking such reexamination. (Syl. ¶ 6.)
The opinion enumerates various acts of misconduct sufficient to invoke the doctrine, and also states that a foreign custody decree is enforcable against a parent who is in some way defying the decree or the jurisdiction of the court that issued it. It states the petitioners “clean hands” is a most important consideration in the exercise of judicial discretion in determining whether a foreign decree should be reexamined on its merits, and, further, that in the interest of the welfare of the child, custody decrees of a sister state are subject to an independent reexamination by courts, although this discretion will not usually be exercised where the parent seeking relief in the courts has “unclean hands.” The “clean hands” doctrine has been applied in Crocker v. Crocker, 122 Colo. 49, 219, P. 2d 311; In Re Mullins, 26 Wash. 2d 419, 174 P. 2d 790; Fahrenbruch v. People ex rel. Taber, _ Colo. _, 453 P. 2d 601; Perry v. Superior Court, 7 Cal. App. 3d 236, 86 Cal. Rptr. 607, and Marlow v. Wene, 240 Cal. App. 2d 670, 49 Cal. Rptr. 881. See 51 Mich. L. Rev. [Ehrenzweig], Interstate Recognition of Custody Decrees, pp. 345, 357-359, where it was said:
“There is one type of case, however, in which a deviation from this principle by the practice of “comity” seems required in the interest of both the child and society, and where the Kansas rule of full discretion does not represent either existing or desirable law. This is the case of the parent who, dissatisfied with a custody award, seeks a redetermination of the issue in the court of another state. To encourage such scheming is clearly harmful particularly where the second court’s jurisdiction has been obtained in bad faith. It is true that the parent’s wrong by itself should not preclude a solution dictated by the child’s interest, and many courts have so said. But as Professor Stansbury suggested, even without regard to any wrong done, ‘stability of environment ... in itself is an important factor in the welfare of the child.’ ”
See, also, 47 Cal. L. Rev., Conflict of Laws: Recognition of Sister State Child Custody Decrees: Application of the Clean Hands Doctrine, p. 750.
The “clean hands” doctrine, as applied in child custody cases, is an equitable one, is not an absolute, and is to be applied or not applied at the court’s discretion in each particular case. (Marlow v. Wene, supra.) It may be invoked where fraud or its equivalent exists, or where a party obtains or retains custody of a child in violation of the decree of a sister state for purposes of relitigating the custody issue.
The record shows that in granting the writ of habeas corpus, Judge Carr, in effect, recognized and applied the doctrine of “clean hands.” Gleaned from his findings is the conclusion he was of the opinion Sandra’s entire course of conduct was preconceived and calculated to obtain the right to bring the children to her home in Johnson County, and then attempt to relitigate her custodial rights while they were present in this state. It is apparent he also concluded that in her attempt to relitigate the issue, she was estopped by her conduct to invoke the jurisdiction of the Wyandotte district court. While he did not state the doctrine in so many words, it is evident he had the principle in mind when he stated the following:
“. . . Now, this mother over the period of the last two and a half years on the basis of the evidence that I have in this case, and nothing else, has disregarded the California court except when it was to her advantage to recognize the California court. She disregarded the California court at the time of the original divorce, which didn’t become final until September the 4th, according to the evidence that I have in this case, 1968. She married on April 15, 1967 and a child was born of that marriage in May of 1967. Then last year, no, this year, in June she went to California for the purpose of and secured an Order of that court modifying the decree and giving her visitation rights to August 27th of this year. She acquiesced and took direct action in the California court at that time and the court granted her the relief, but then she doesn’t want to recognize that court as valid at all.”
We think it may not be said that, under the circumstances which attend, Judge Carr abused his discretion in giving full faith and credit to the California decree without reexamination of its merits, regardless of alleged change of circumstances. As has been noted, Sandra remarried in recognition of the California decree, and when she went to California and intervened in that court seeking visitation rights and permanent change of custody, she asserted that such court had jurisdiction and authority to consider and pass upon her right to the custody of the children. She sought affirmative relief in such court; she obtained some relief from it, and she was given the custody of the children to visit her for the summer. Shortly after she obtained that relief, and just prior to the time she was required to deliver the children to Daniel, she ignored that decree and sought permanent custody of the children in the Wyandotte district court. As we have seen, that court had no jurisdiction in her action to grant such relief. She stood in defiance of the lawful order of the California court which we think was sufficient to warrant Judge Carr’s application of the “clean hands” doctrine and enforce the California decree without reexamination of custodial merits as to change of circumstances. The “changed circumstances” rule does not permit a parent to go from one state to another relitigating issues which have been very recently resolved in another jurisdiction. (Perry v. Superior Court, supra.)
Little need be said concerning Judge Carr’s finding that Sandra unlawfully restrained the children in Johnson County. The record contains substantial evidence to support his findings the restraint took place in that county. We affirm the judgment of the Johnson district court issuing Daniel a writ of habeas corpus, and directing delivery of the two minor children to him in accordance with the California decree. We reverse the judgment of the Wyandotte district court with directions to sustain Daniel’s motion to dismiss the action.
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The opinion of the court was delivered by
Harman, C.:
This is an action for damages for breach of contract. Plaintiff appeals from an order sustaining defendants’ motion to dismiss for failure of the petition to state a claim upon which relief can be granted (K. S. A. 60-212 [b] [6], as amended). The trial court found no contract existed between the parties.
The trial court had before it only plaintiff’s petition to which were attached numerous exhibits. The petition was detailed in nature, revealing the following: Plaintiff is an unincorporated joint venture consisting of Bernard Weil of New Orleans, Louisiana, and Bruce C. Quantrell and William L. Fry of Wichita, Kansas. Defendant agency is a body corporate created under our urban renewal law (K. S. A. 17-4742, et seq.) with its affairs conducted by a board of commissioners, also named as a defendant.
On December 6, 1965, defendants published notice to interested developers of their intention to offer for sale and development a tract of about four and one-half acres in the downtown Wichita business district, a part of the Civic Center Urban Renewal Project. The property was described as having a frontage of 318 feet along Douglas avenue with a depth of 600 feet. Defendants also furnished documents containing a map and description of the project and outlining generally the basic land use and building requirements as well as requirements for proposals submitted in response to the offering. Plaintiff then expended much time and money in preparing its proposal and offer to purchase and develop the land. On April 11, 1966, plaintiff submitted a written offer to purchase the tract for the sum of one million dollars and thereafter made a public presentation to defendants of its proposal. By letter April 18, 1966,. defendants acknowledged plaintiff’s bid and requested more information. Defendants’ letter indicated three proposals had been submitted. By letter dated May 11, 1966, plaintiff furnished the information requested by defendants. July 8, 1966, defendants adopted a resolution making a tentative selection of plaintiff as the redeveloper for the project. The resolution described the land to be developed as follows:
“A tract of land bounded on the north by the south line of First Street, and the east by the west line of Water Street, on the south by the north line of Douglas Avenue, and on the west hy the center line of Wichita Street (as originally platted), all in the City of Wichita, Kansas, constituting 190,800 square feet, more or less; . . .” (Emphasis supplied.)
After reciting certain preliminary actions taken, the resolution further stated:
“Whereas, in the interest of all parties concerned, the Urban Renewal Agency desires to make known its tentative designation of a Redeveloper for the Site and its acceptance of the appropriate Redevelopment Proposal even though further negotiations must be conducted and completed, additional official actions taken, and appropriate procedures complied with before a formal Contract of Sale can be executed with the Redeveloper for sale and redevelopment of the Site.
“Now, Therefore, Be It Resolved by the Board of Commissioners of the Urban Renewal Agency of the Wichita, Kansas Metropolitan Area as follows:
“1. That Weil and Associates be and are hereby tentatively designated as Redeveloper for the Site, subject to all laws, rules, regulations and requirements pertaining to disposition of land in Urban Renewal Projects.
“2. That negotiations be entered into between the Agency and such Re-developer as to contract provisions effecting sale and redevelopment of the Site, and that an appropriate contract be returned to this Body for consideration.
“3. That the Chairman be and is hereby directed, pursuant to K. S. A. 17-4750 (h) of the Kansas Urban Renewal Law, to immediately file an appropriate notice with the Board of City Commissioners of the City of Wichita, Kansas evidencing the Agency’s intention to accept such Redevelopment Proposal, submitted by Weil and Associates on or after August 25, 1966.
“4. That this tentative designation of Weil and Associates as Redeveloper for the Site is conditioned upon said Redeveloper providing, for the benefit of the Urban Renewal Agency, the sum of $50,000 as evidence of the Redeveloper’s willingness, ability and intention to proceed with the redevelopment as herein contemplated, such amount to be provided not later than July 19, 1966, with interest earnings thereon, if any, to accrue to the benefit of the Redeveloper; provided that said sum shall remain on deposit and be made available as earnest money to guarantee full and timely performance by the Redeveloper of the Contract in the event of the execution thereof.
“5. That this tentative designation of the Redeveloper is conditioned upon the Redeveloper and the Agency executing the appropriate Contract referred to above in Section 2, not later than October 13, 1966, but shall further cease and determine should either of the following occur prior to said date:
“a. The Agency and the Redeveloper fail to agree as to any provision proposed to be included in Purchase Contract, including any required changes in the Redeveloper’s Proposal.
“b. The Redeveloper shall fail to execute the Contract of Sale, including payment of good faith deposit, within ten (10) days after submission by the Agency of said Contract to the Redeveloper for execution.
“6. Notwithstanding any provision hereof to the contrary, it is the expressed intention hereof that in any event the Agency shall not by reason hereof or otherwise be deemed to be liable to Redeveloper, or any other person, firm or association concerned by reason of Redeveloper’s proceeding hereunder in planning, developing, or in otherwise determining the feasibility of said Site development and that agency shall at all times have the absolute right without penalty or liability whatsoever and without notice of any kind to rescind its designation hereof and thereupon any and all alleged rights or interest whatever of Weil and Associates in and to said Site shall cease and determine.”
Plaintiff’s petition then alleges it performed every requirement in said resolution including the making of the $50,000 good faith deposit, and was at all times ready, willing and able to execute and perform under the standard form of contract used by defendants. One of the other bidders, Garvey Center, Inc., withdrew its bid by letter of July 13, 1966. By letter dated September 6, 1966, defendants sent plaintiff a copy of a proposed disposition contract for review and suggestions as to contents. This letter confirmed a previous telephone conversation regarding the eventual vacation of Wichita street between Douglas avenue and First street, stating defendants had a contractual agreement with the city regarding vacation of the street, which contract defendants believed was enforceable. The letter continued:
“Accordingly, we are ready to contract with you for the sale of the land on the basis that the street will be closed. In the event that a problem develops and the Agency could not deliver the land as per the agreement, this would come under Section 8 of Part I of the Contract, paragraph (/) and would be the responsibility of the Urban Renewal Agency.
“I assume that your designer will be in town and available this week, as we discussed. Hopefully, the necessary Site Plan, etc., can be decided upon so that the other aspects of this Contract, i. e., that which you are contractually obligated to construct, may be drawn up so that a completed Contract Document can be submitted for approval to our Board and to the necessary Federal offices by the First of October and the Contract can be executed on October 13, 1966, (per the direction of the Board).
Section 8, Part 1, paragraph (†) of the proposed agreement provided:
“Section 702 Termination By Redeveloper Prior to Conveyance is hereby modified to read as follows:
“The Agency does not tender conveyance of the property, or possession thereof, in the manner and condition, and by the date, provided in the agreement and any such failure shall not be cured within thirty (30) days after the date of written demand by the Redeveloper, then the agreement shall, at the option of the Redeveloper, be terminated by written notice thereof to the Agency, and, except with respect to the return of the Good Faith Deposit, neither the Agency nor the Redeveloper shall have any further rights against or liability to the other under the Agreement.”
Under date December 9, 1966, defendants wrote plaintiff the following letter:
“Subject: Execution of Contract, Civic Center
“You will recall that, on July 8, 1966, the Urban Renewal Agency adopted a Resolution tentatively designating Weil and Associates as Redeveloper for the Civic Center site north of Douglas Avenue. You will further recall that this Resolution was contingent upon the Agency and the Redeveloper being able to specifically negotiate contract terms, including any required changes in the Redeveloper’s proposal, and further that the purchase Contract be executed not later than October 13, 1966.
“However, because of questions raised in connection with the proposed vacation of Wichita Street, the Wichita City Commission requested that we not execute such Contract on October 13, 1966, as planned. Shortly thereafter, the City Commission directed that we proceed with execution of the Contract, notwithstanding the Wichita Street question, since this problem is covered by appropriate contingencies in the Contract. Accordingly, the Board of Commissioners of this Agency has unanimously determined that we should proceed with execution of the Contract immediately.
“Since October 13, a further problem has arisen. This relates to required setbacks on Douglas Avenue. As we have previously explained to you, any amendment to the Urban Renewal Plan is subject to approval of all parties affected thereby. This specifically includes the First National Bank, the designated Developer for the tract at the northeast corner of Douglas and Water. The Bank has generally complied with the requirements of the original Urban Renewal Plan and, in the process, leaves a setback of 35 feet from Douglas Avenue. Accordingly, they violently object to your proposal of building all the way to the property line at Douglas and Water. In addition, the Board of Commissioners of this Agency has determined that, in any event, at least a token setback must be provided at Douglas Avenue in the overall interest of the Civic Center Urban Renewal Plan. Accordingly, the Board has unanimously determined that any amended Urban Renewal Plan will require a setback of not less than 15 feet at Douglas and Water. Furthermore, the original sign restriction will be retained whereas ‘signs affixed to a building wall shall not extend more than 12 inches from the building wall’. We believe that these requirements are quite reasonable and throughly justified in terms of attaining the objectives of the original Urban Renewal Plan, which was the basis on which these competitive redevelopment proposals were received.
“Accordingly, we should establish an early time of mutual convenience for execution of the Contract, in accordance with the draft previously discussed and as modified by the foregoing Urban Renewal Plan requirements. We believe that there is no reason that such contract execution can not be accomplished no later than December 30, 1966. We would suggest that contract execution should occur at our next regular meeting on December 22, 1966. Please advise as to whether such time is satisfactory.
“It is essential that the contract be executed without further delay. Accordingly, if we are unable to satisfactorily conclude our negotiations and execute such Contract by December 30, 1966, this Agency will take action to rescind its tentative designation of Weil and Associates as Redeveloper for the Civic Center tract under discussion.”
Ry letter of December 19, 1966, defendants mailed plaintiff another form of disposition contract. This contract included changes for the setback and sign requirements mentioned in the third paragraph of the December 9 letter. The letter made no mention of the vacation of Wichita street. It concluded with the assumption defendants would be hearing soon as to the date the contract could be executed. Plaintiff responded by its letter of December 28, 1966, as follows:
“Your letter of December 9, 1966, arrived in my absence from the city. Time has not permitted Ben Weil, Bruce Quantrell and I to jointly formulate a reply. We have not had an opportunity for the three of us to have a personal conference. However, we have discussed this matter over the telephone.
“On October 13, we were ready to pay our $50,000.00 good faith deposit and formalize the contract to purchase the 318 X 600 feet of land under the terms of our proposal, which had been accepted by the Urban Renewal Agency. The Agency was not quite ready at that time, and desired a delay.
“The Agency informed us that the Wichita Street matter would be resolved in two weeks, and then we could proceed.
“Our next communication from the Agency was your letter of the 9th.
“I am sure you are aware of the great amount of time and expense we have incurred based upon the acceptance of our bid. The $50,000.00 C. D. we have at the local bank under the terms of your acceptance of our proposal is just a small portion of our performance already.
“We agreed to and changed our plans to meet the suggestions of the agency as to coverage and set-back. Now you say either sign a ‘contract’ by December 31 or you’re going to rescind your agreement.
“Until a basis for definite delivery of the whole parcel, or a reasonable price adjustment in event of a portion of the street is not delivered, as agreed upon, it is difficult to comprehend how we can be expected to sign such a unilateral document as recently presented.
“We are willing to formalize our agreement. We are willing and intend to pay the $1,0.00,000.00 for the 318 x 600 feet, under the terms of our proposal.
“We suggest that after the holidays a meeting be arranged between your Board and our group for a man-to-man review. Only by this method can we arrive at any proper understanding. We will wish to have our designer and architect attend. If you will suggest two or three alternate dates this will facilitate a time mutually convenient whereby all interested parties to our contract may be in attendance.
“Sincerely yours,
“William L. Fry (signed)
“William L. Fry.”
Plaintiff then sent defendants its January 6, 1967, letter which read:
“In our conference of January 4, we informed you that we would recommend to Mr. Weil that the contract submitted by the agency be executed if amended in two particulars:
“(1) There needs to be a provision setting a reasonable time for the agency to put itself in a position to deliver the full 318' x 600'. We discussed some three (3) months or so. At any rate, sufficient time for the city to effectuate abandonment of Wichita Street. If this wasn’t done in that said period of time, we would have the right to draw down the $50,000.00 ‘good faith deposit,’ or,
“(2) We have the option to purchase such property of the 318' x 600' as the agency is able to deliver. The price to be set by a reappraisal of the amount of land capable of being conveyed by your original appraisal, such reappraisal of the smaller portion by an appraisal as of the same date as of the original appraisal of the whole. The purchase price to be an amount determined by the ratio of the million dollar price for the whole as that bears to the original appraisal and the reappraisal of the smaller tract.
“You indicated that you thought these modifications were reasonable; and in your telephone call with Mr. DesMareau you stated that he thought likewise.
“We have now had an opportunity to talk to Mr. Weil by telephone, or rather Mr. Quantrell has; and Mr. Weil agrees to the execution of an amended contract as above set forth.
“Since you state that in your opinion a letter from the Board separate from the formal contract would not be binding, then we must insist these terms be formalized.
“You are aware, of course, that we have agreed to the modification of our plan in a manner meeting the desire of Mr. DesMareau and apparently the Board. We are most anxious to proceed with this development in order to authorize our architect to proceed and in order to negotiate with possible tenants. We must know what we are getting.
“If you have any suggestions, do not hesitate to call me. We will send copies of this letter to the Board members in order that they might see that good business demands the agreement have some aspects of bilateral nature in regard to the rights and obligations in such a contract.
“Yours very truly,
“William L. Fry (signed)
“William L. Fry.”
By letter of January 17, 1967, defendants advised plaintiff as follows:
“We wish to advise you that, in Special Meeting on January 16, 1967, the Board of Commissioners of this Agency formally adopted a Resolution terminating its tentative designation of Weil and Associates as Redeveloper for the Civic Center block north of Douglas and west of Water. A copy of the Resolution is attached.
“In addition, we enclose a copy of our letter to the Stockyards National Bank disclaiming any further interest on our part on your $50,000 surety deposit.
“We are genuinely sorry that we were unable to mutually agree upon appropriate contract terms, and that you did not elect to execute the Contract offered by us within the prescribed time.”
Plaintiffs petition then continues:
“XI.
“Despite the above and foregoing transactions, and despite the formal withdrawal by Garvey Center, Inc., of their bid, and without following any method of competitive bidding, without any proper notice to plaintiff or to the public, and contrary to the laws of Kansas and of the United States under the pertinenf federal statutes involving this transaction, defendant agency has attempted to contract with Garvey Center, Inc. for sale of the land involved, under terms contrary to law, in direct violation thereof, and contrary to and violative of the contract to sell the land to plaintiff.
“XII.
“Defendant agency wilfully and wrongfully failed, neglected and refused to require the abandonment of streets and alleys as they represented to plaintiff they had the power, right and obligation to do; and, in fact entered into an illegal, wrongful and unlawful agreement or attempted, though illegal arrangement or writing in an attempt to dispose of the land to Garvey Center, Inc. and plaintiff is informed has now actually delivered some form of deed or conveyance of title to said Garvey Center, Inc. which is all contrary to law, void and should be set aside and held for naught.
“XIII.
“Plaintiff relied on defendant’s representations that it could sell and land described in ‘Exhibit A’ free and clear of any easements, and particularly free and clear of Wichita Street. In reliance upon all the representations plaintiff paid the $50,000.00 down payment, and partially performed the contract; but was prevented from going forward by the unlawful acts of defendants. Plaintiff alleges that defendants unlawfully, wrongfully, arbitrarily, capriciously without just cause, violated the contract to sell said land to plaintiff.
“XIV.
“Said land is very unique and cannot be duplicated. Plaintiff is entitled to specific performance of said contract, but specific performance has been rendered practically impossible by virtue of the acts of defendants.
“Plaintiff has been damaged in the sum of One Million ($1,000,000.00) Dollars as a result of the wrongs of defendants aforesaid.”
As indicated, in sustaining the motion to dismiss the trial court specifically found no contract existed between the parties.
Upon appeal plaintiff principally contends the trial court erred in dismissing the action in that the petition showed the existence of a contract between the parties. It asserts the petition contained “a short and plain statement of the claim showing that the pleader is entitled to relief”, as provided by K. S. A. 60-208 (a), which is all that is required. The argument is, as stated in its brief, “all terms of the contract were agreed upon and merely the clerical act of formalizing these terms remained”. Plaintiff insists its petition clearly pleaded the existence of a contract between the parties, as well as breach thereof and resulting damage.
In Robertson v. McCune, 205 Kan. 696, 472 P. 2d 215, we considered the scope of a motion to dismiss and said:
“When a motion to dismiss under K. S. A. 60-212 ib) (6) . . . raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff’s petition. The motion in such case may be treated as the modem equivalent of a demurrer.” (p. 700.)
Obviously, disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.
The thrust of the foregoing is the court must accept the plaintiff’s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself (see 5 Wright & Miller, Federal Practice and Procedure, § 1357).
Plaintiff here filed more than a simple “barebone” notice-type pleading. Rs petition was detailed and specific as to events. All transactions and dealings between the parties were either evidenced or confirmed by writings, which were pleaded. Although the parties disagree upon interpretation, no dispute appears from the record as to what transpired throughout the entire negotiations between the parties.
It is elemental that in order for parties to form a binding contract, there must be a meeting of the minds as to all essential terms thereof (Topeka Savings Association v. Beck, 199 Kan. 272, 428 P. 2d 779). Moreover, (with possible exceptions not here applicable) an agreement to make a contract in the future is not binding unless all the terms and conditions are agreed upon and nothing is left to future negotiation (Railroad Co. v. Gorman, 79 Kan. 643, 100 Pac. 647).
Such being the law, we are unable to see, under the facts of this case, the existence of a contract. We have set forth much of the writings passing between the parties. In those, as well as in others we have omitted, is the definite expression that all the terms of the final contract were not agreed upon but. remained subject to negotiation and that a written formal instrument embodying any final agreement was contemplated. Plaintiff’s petition is replete with this. We mention a few. The initial “prospectus” pointed out amendments to the entire urban renewal plan might be made in order to achieve the desired objectives. Negotiation was clearly indicated in case new or amended proposals came into being. One item of information sought by defendants in its April 18th letter was the earliest date upon which plaintiff would be prepared to execute a legally binding contract for the site purchase and construction of improvements, without reservation or contingency. Plaintiff’s response to this was: “At such time as the Agency can fully deliver land for development”. Defendants’ July 8th resolution selecting plaintiff as the developer repeatedly stated such designation was tentative; it specifically stated “further negotiations must be conducted and completed, additional official actions taken, and appropriate procedures complied with before a formal Contract of Sale can be executed”; it directed that negotiations be entered into as to the contract provisions effecting the sale; it provided the $50,000 deposit should remain on deposit as earnest money to guarantee performance of the contract in the event of execution thereof; it stated the tentative designation was conditioned upon the execution of an appropriate contract within stated time limits and that such designation should cease if the parties failed to agree as to any provision proposed to be included in the contract or if plaintiff failed to make timely execution of the contract; additionally the resolution provided defendants would not be liable to plaintiff by reason of plaintiff’s proceeding in planning and determining feasibility of the development and finally that defendants at all times had the right to rescind the designation at any time without penalty or liability. Later correspondence between the parties evinced the same understanding.
As indicated, disagreement arose respecting three items: Width of setback of buildings from the street, sign restrictions and the vacation of Wichita street, the east half of which was initially contemplated as being within the tract to be sold. Negotiations between the parties evidently resulted in agreement upon the first two items. Vacation of the street remained in controversy, either over the amount of land to be delivered, or, if a lesser amount were delivered than initially contemplated, then price. Plaintiff throughout recognized this lack of agreement. In its December 28th letter it stated it could not sign the contract presented unless the whole parcel was delivered or a reasonable price adjustment made in lieu thereof. In its January 6th letter it asserted a right to withdraw its good faith deposit if there was no provision for a timely abandonment of Wichita street. (It had this right under the so-called “escape” clause, Section 8, Part I, paragraph [¶] of the proposed contract). The initial proposal offered only a lump sum consideration for the entire tract mentioned.
Undoubtedly execution of a binding contract was expected, but the intention of the parties seems clear: They negotiated with the definite understanding the terms of any contract were not fully agreed upon; a written formal agreement was contemplated and no valid, enforceable contract was to exist until the execution of such an instrument. The intention of the parties is controlling. In such case, where a written agreement was never executed, a binding contract never came into existence, and we so hold, as did the trial court (see anno. 122 ALR 1217, 1232, 165 ALR 756, 759, 764). Plaintiff’s position that a contract existed is not strengthened by the fact it made expenditure of time and money — these were simply normal business expenses incurred on the expectancy of ultimate success.
Plaintiff also complains in its brief the trial court overlooked two other possible theories available for it to obtain relief, “These being the administrative law theory predicated upon the position that the agency acted arbitrarily and capriciously, and in so doing was guilty of abuse of administrative discretion. The other theory being fraud”. Plaintiff fails to elaborate this basis for possible relief. We have quoted the latter part of plaintiff’s petition containing the matter referred to. As we read paragraphs XI, XII and XIII of the petition any statements arbitrary or capricious conduct, or other so-called wrongdoing, were simply descriptive of the alleged breach of contract for which plaintiff sought recovery. Here, again, existence of a binding contract is presupposed and is the basis of the claim for relief.
We find no mention of fraud in the petition nor any compliance therein with K. S. A. 60-209 (b) which requires that in all averments of fraud the circumstances constituting the fraud shall be stated with particularity. Nor does the record reveal plaintiff raised the matter before the trial court so as to avoid the consequence of its failure to plead properly the issue of fraud.
Plaintiff argues defendants wrongfully failed to accomplish the abandonment of Wichita street; however, it makes no contention an urban renewal agency has the power to vacate municipal streets or to compel their vacation and we are aware of none. Plaintiff can scarcely take advantage of any overextension on the part of defendants based on lack of authority to act. The rule is one who makes a contract with a municipal corporation is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract. The municipal corporation cannot in any manner bind itself by any contract which is beyond the scope of its powers, and all persons contracting with the corporation are deemed to know its limitations in this respect (10 McQuillin, Municipal Corporations, 1966, § 29.04). We have always followed this salutary rule (City of Leavenworth v. Rankin, 2 Kan. 357; Roberts v. St. Marys, 78 Kan. 707, 98 Pac. 211; State, ex rel., v. City of Coffeyville, 127 Kan. 663, 274 Pac. 258).
Finally, plaintiff complains the trial court’s ruling was prematurely rendered prior to completion of discovery thereby depriving it of that right. In its brief plaintiff argues it should have the right to amend its petition and through further discovery “elect as to what theory it could prove or which theory is most provable”. K. S. A. 60-212 (b) (6) authorizes the treatment of the motion to dismiss as one for summary judgment where matters outside the pleading are presented to and not excluded by the court, and it further grants all parties the opportunity to present all material made pertinent to such a motion. The difficulty with plaintiff’s present position is, the trial court’s order of dismissal specifically informed plaintiff of the reason for the dismissal yet plaintiff at no time sought either to present additional factual data to the court or to amend its petition. Indeed it seems fairly apparent from the voluminous nature of the petition with its fifteen exhibits that plaintiff did embody all factual data pertinent to its claim in the pleading and that plaintiff elected to stand on the pleading. Nor has plaintiff made clear to this court just what additional facts it might present which would be of sufficient benefit to avoid dismissal. This belated complaint does not warrant disturbance of the order appealed from.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal arises out of eminent domain proceedings commenced in the district court of Doniphan County. The condemnor, The Elwood-Gladden Drainage District, is a levee and drainage district which constructed an agricultural levee to protect lands lying along the west bank of the Missouri River in Doniphan County.
The appellants, Andrew Staudenmaier and his mother Mrs. Anna Staudenmaier, are the owners of two separate tracts of land identified in the eminent domain proceedings as tracts 17 and 21. Being dissatisfied with the award of the appraisers appointed by the district court, and on June 11, 1965, they duly perfected two separate appeals to the district court for trial de novo on the question of damages, and demanded trial by jury in each case. The facts and issues in both appeals being the same, the district court ordered the appeals consolidated for purposes of trial as to just compensation.
On October 11, 1968, a pretrial conference was held on the consolidated appeals by the district court in chambers, with counsel for the parties and the court reporter present. The appellee drainage district orally raised the issue of settlement of the landowners’ claims of damage and sought a determination of that issue. The issue of settlement was defined by counsel for the parties in chambers, and thereafter the district court conducted a trial on the issue of settlement in the courtroom. The record shows that “both parties announcing ready for trial, the cause proceeds to the Court, sitting without a jury.” Statements by counsel were made, each side introduced evidence, cross-examined witnesses, and counsel announced they had nothing further to offer. Oral argument to the district •court was waived, and the court announced, “I will go over these notes and I will decide this within the next couple of days and if I decide the appeal has not been settled, then I will set it down for a pre-trial within a few days so it will not delay trial.”
On October 16, 1968, the district court made findings of fact and conclusions of law that the cases had been settled by the parties, and entered its order dismissing each landowner’s appeal. The findings of fact and conclusions of law in both appeals read:
“The Court finds that at the beginning of the pre-trial conference the question was raised by the Elwood-Gladden Drainage District that these cases had been settled and these appeals should be dismissed.
“Evidence was introduced on this question and the Court finds Mr. Davis, an engineer for the Corps of Engineers asked the attorney for the landowner if he could have permission to talk to the landowner in regard to the reason for his appeal. The attorney gave Mr. Davis this permission.
“Mr. Davis approached the landowner and asked him what would be necessary to satisfy him, so that his appeal would be dismissed. The landowner suggested several changes in the plans. He requested two additional ramps, a change in the borrow pit, he requested that an approach that was built by the contractor to be used in the construction of the levee be left. Ordinarily this approach would have been removed.
“Mr. Davis asked the landowner if these requests were complied with would his appeals then be dismissed and he stated they would.
“The plans were revised by the Corps of Engineers to satisfy the landowner’s request. Tubes were purchased by the Drainage District; additional land was purchased by the Drainage District upon a nearby hill for a borrow pit.
“After this work was completed Mr. Davis asked the landowner if he was now satisfied and he said that he was, and Mr. Davis asked him if the appeals would be dismissed and the objections to the Commissioners report and he stated that the appeals would be dismissed and the objections to the Commissioners report.
“Mr. Davis asked him if he should advise his attorney what the landowner said, and he said I wish you would on your way through town.
“Mr. Davis did stop at the office of the attorney for the landowner and advised him of the conversation he had with the landowner.
“The Court finds that the settlement and agreement in these two appeals were entered into and was consummated and the appeals in these two cases ■are hereby dismissed.”
The appellant-landowners filed a motion to set aside and modify the findings of fact, or in the alternative, to grant them a new trial. The motion was overruled, and this appeal followed.
The appellants first contend the district court erred in finding there had been a settlement of the appeals when the issue of settlement was not specifically raised or brought before the court by any proper pleading. We think no error was committed. The .appeals were perfected pursuant to K. S. A. 26-508. The only issue to be determined was that of just compensation to be paid for the land or right taken and other damages. In City of Wellington v. Miller, 200 Kan. 651, 438 P. 2d 53, we said:
“. . . The provisions of K. S. A. 26-508, providing that the appeal shall be ‘tried as any other civil action,’ applies to the presentation of the facts and not to the formation of the pleadings. The eminent domain statute forms the issue. The only issue to be determined shall be that of just compensation for the land or right taken and other damages, and the appeal brings the issue of damages to all interests in the tract before the court for trial de novo. (K. S. A. 26-508.) The statute takes the place of pleadings.” (1. c. 652.)
Assuming, as the appellants argue, but in no sense deciding, that the issue of settlement was a new issue other than the assessment of damages which must be properly pleaded, they made no objection to the absence of pleadings and proceeded to outline and define the issue of settlement in chambers. When trial on that issue commenced in the courtroom, they made no objection to the absence of pleadings, but proceeded to trial on the merits and introduced evidence addressed to the question of settlement. Under such circumstances, we must give effect to the settled rule that when •the parties with the assent of the court, unite in trying a case on the theory that a particular matter was within the issues, the contention cannot subsequently be made that the issue was not available because not pleaded. (59 A. L. R. 2d Anno: pp. 238, 250, 41 Am. Jur., Pleading, § 393, p. 563.) We conclude the district court had jurisdiction to try the issue of settlement defined by the parties and raised by the evidence to which there was no objection. (Bowen, Administrator v. Lewis, 198 Kan. 605, 612, 426 P. 2d 238.)
The appellants next contend the issue of settlement was an ultimate issue in the appeals pending in the district court and that it was error for the court to decide that issue when the appellants had requested trial by a jury on all issues.
Reduced to its simplest terms, the question presented is: Should the appellants be granted a new trial so that the issue of settlement, determined adversely to them by the district court after a full trial, may now be redetermined by a jury?
The transcript of the proceedings had in the district court has been filed with the clerk of this court and that transcript, as well as the record on appeal, has been carefully studied. Factors to be considered as to whether the evidence introduced before the district court should be redetermined by a jury, include their original request for a jury trial on the issue of adequacy of compensation. Other and more important factors include the appellants’ notice of approximately one year that the appeals had been settled by agreement; their letting the case proceed to trial by the court upon the issue of settlement; their submitting the question of settlement to the court without asking for a jury; their appearing at the trial before the court in the absence of a jury without objection; the introduction of evidence, including their evidence, and their failure to make any demand for jury until the motion for a new trial. The authorities hold that such conduct is at least a waiver of jury trial by implied consent. The appellants may not complain of rulings or matters to which they have consented, or take advantage of error upon appellate review which they invited, or in which they participated. (47 Am. Jur. 2d, Jury, § 62, p. 680, § 81, p. 696, § 84, pp. 698, 699; 30 C. J. S., Eminent Domain, § 281 c, pp. 36, 37, § 361, pp. 336, 337, §372 [5], p. 407.)
In addition, the record shows the appellants, if not expressly at least by implication, orally stipulated in open court to proceed to trial on the issue of settlement and dismissal of their appeals by the court sitting without a jury (K. S. A. 60-239 [a] [1]), notwithstand ing the fact they previously demanded trial by a jury on all issues. In Cunningham v. City of Iola, 86 Kan. 86, 119 Pac. 317, the appellants made no objection to trial by the court and made no demand for a jury, but after a full trial an exception was taken to the judgment. It was held the appellants waived the right to a jury and could not on appeal be heard to complain. In the opinion it was said:
“The complaint that a counterclaim was considered and passed upon without the intervention of a jury, and in an injunction suit, is fully answered by the fact that no objection or request for a jury appears to have been made. There was an exception to the judgment, but this was too late ... It was expressly decided in The State v. Cutler, 13 Kan. 131, that where the parties try an action before a judge at chambers without any objection or exception to the action of a judge in trying the case without a jury, they will be held to have waived a jury trial. The general rule is that the waiver may be by any conduct or acquiescence inconsistent with an intention to insist on a jury trial. (24 Cyc. 154.) The plaintiffs are presumed to have known their rights, and having failed to assert them at the proper time they cannot be heard to do so now.” (1. c. 92.)
In Udgaard v. Schindler, 75 N. D. 625, 31 N. W. 2d 776, the defendants raised the issue of a jury trial for the first time upon a motion for a new trial, and it was held they could not voluntarily submit the issues of the case to a court without a jury, and hold in reserve their claim of a right to a jury trial in the event the decision should go against them.
As indicated, when the pretrial conference commenced, the issue of settlement of the appeals was raised. That would have been an appropriate time for the appellants to request that pleadings be filed and to insist that the issue be submitted to a jury. Instead, they were present personally and accompanied by witness — apparently prepared for trial — and took part in a contested trial to the court on the question of settlement, all without any objection or demand for jury. After the evidence was in, they waived argument and the court announced it would decide the matter in a few days. When the appellants received an adverse decision, they demanded a jury trial and requested that pleadings be filed. If the matter had merit prior to trial and an adverse judgment, it has no merit on appellate review. See Conner v. Hammer, 201 Kan. 22, 439 P. 2d 116.
The appellants argue there was no substantial evidence to sustain the district court’s finding that settlement of the cases had been entered into by the parties. The point is not well taken. The transcript and the record disclose ample evidence to sustain the finding there had been a settlement of the cases, and the appellants agreed to the dismissal of their appeals.
The evidence of the drainage district consisted chiefly of the testimony of Sidney Davis, a civilian employee of the Corps of Engineers, and Bearl Webb, a construction representative of the Corps. Davis testified concerning negotiations he had with Andrew Staudenmaier, and Webb testified concerning Staudenmaier’s. satisfaction with the completion of the project. Davis testified he contacted counsel for the appellants and secured his consent fi> talk to Staudenmaier about proposed changes in the project necessary to satisfy the appellants. He also contacted counsel for the drainage district and the board about the matter.
Davis conferred with Staudenmaier three different times; the first time in August, 1965. He reported their conversations to Staudenmaier’s counsel as he went through Troy. In their first conversation, Staudenmaier advised Davis he would be interested in talking about the levee area. Davis asked him specifically what would have to be done to make the project acceptable to him. He stated the borrow area would have to be reduced and moved toward the river, and that additional levee crossings would have to be provided for access. Davis stated the Corps would study the matter and he would confer with Staudenmaier later.
The Corps determined the borrow area on Staudenmaiers’ property could be reduced, but to compensate for the reduction, it would be necessary for the drainage district board to secure a hillside borrow which would have to be purchased by the board. Thereafter, Davis conferred with Staudenmaier and advised him' the borrow area could be reduced and moved riverward, also' that two additional ramps over the levee would be constructed on the appellants’ land. Davis testified on direct examination as-follows:
“Q. And again, did Mr. Staudenmaier indicate to you this was satisfactory and his appeal would be dismissed and the objections to the commissioners report as you stated?
A. Yes, he did and on the last visit I asked if I should advise his attorney and he said, ‘I wish you would,’ and on the way through town I did at that time advise Mr. Van Bebber of the conversation I had with Mr. Staudenmaier.
“Q. Did you also advise the Drainage District?
“A. Yes, I did, and advised them of the exact terms of the settlement on the basis of the map, and Mr. Staudenmaier did not want any reduction allowed by the Commissioners, even though the settlement was made on less acreage than originally condemned.”
At the trial, the district court asked two questions of Mr. Davis: “Was there some hill-side land purchased and used for borrow pits?” and, “Was that done because of the release of the borrow pit from Mr. Staudenmaier’s land?” Both questions received affirmative answers. The evidence showed the drainage district paid $2,500 for the hillside borrow area and that it fully complied with the terms of the settlement agreement. The record clearly shows the appellants accepted the terms of the settlement and that they were carried out to Mr. Staudenmaier’s satisfaction in all respects. In Connor v. Hammer, supra, it was said:
“The law favors the compromise and settlement of disputes and when parties, in the absence of any element of fraud or bad faith, enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate it. . . .” (1. c. 24.)
Other points raised by the appellants have been fully considered and suffice it to say the record reflects a fair and equitable settlement was knowingly and understandingly entered into by the parties. The changes to be made were fully completed to the satisfaction of the appellants. It is to be regreted that the terms of the settlement were not reduced to writing by counsel — had this been done, obviously this litigation would not have occurred. Be that as it may, the absence of such a written stipulation does not lessen the legal requisites of the district court’s finding based upon substantial evidence.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Michael Allen Hale, was convicted of burglary in the third degree and larceny in connection therewith. Evidence of one prior conviction was introduced and Mr. Hale was sentenced to serve not less than two nor more than ten years on the burglary charge and a like term of from two to ten years for larceny. The two sentences were adjudged to run concurrently.
The evidence disclosed that the defendant broke into a farm home, unoccupied at the moment, by removing the pane of glass from a window, and that a female traveling companion, Judy K. Austin, along with her two and a half year old child entered the house with him. After a sojourn of some two or three days, during which the members of this intimate group subsisted on food they found in the home, the defendant and his protégés left the premises taking with them various articles of property to which they had no vestige of right or title.
In this appeal the following claims of error have been advanced and will be considered in order: (1) The court erred in refusing defendant’s motion for continuance; (2) the court erred in overruling objections to questions asked of defendant on cross-examination; and (3) the sentences pronounced under the Habitual Criminal Act are invalid.
On the morning of trial the defendant’s counsel orally requested a continuance so that he might receive, and have analyzed, some pills being sent him through the mail by Mr. Hale’s mother which were the same land Hale had been taking for an alleged brain injury suffered by him at birth. At the same time counsel advised the court that the defense would be that of involuntary intoxication induced by the prescribed medication and that an analysis was necessary in order to evaluate the medicine and its effect upon the defendant.
After hearing arguments from both sides the court denied the request for continuance with these remarks:
“The motion will be overruled. Now, counsel still has an opportunity to ascertain by telephone or some other way, if there is any evidence you can produce, you may renew your motion and the Court will consider it, but based on such purely unsubstantiated contentions the Court does not feel that we can delay this case for that reason. The motion will be overruled.”
It is well recognized that the granting of a continuance in a criminal case lies within the sound judicial discretion of the trial court and that its ruling thereon will not be disturbed in the absence of an affirmative showing that its discretion has been abused to the extent that the defendant’s rights have been prejudiced. (State v. Hill, 145 Kan. 19, 64 P. 2d 71; State v. Dickson, 198 Kan. 219, 424 P. 2d 274; State v. Weigand, 204 Kan. 666, 670, 466 P. 2d 331.)
We note from the record that the offenses with which the defendant was charged occurred the middle part of May 1969; that the information was filed in district court on June 30th; and that counsel was appointed on either September 4 or 8, 1969. No satisfactory reason appears of record to explain the defendant’s delay in asking for the continuance, nor is the motion, being oral, supported by affidavit. (See, K. S. A. 60-240 (c); State v. Collins, 79 Kan. 411, 99 Pac. 817.)
Of greater significance, however, is the fact that defense counsel apparently took no steps to have the pills analyzed even after he received them, which was just two days after trial was concluded. In the defendant’s motion for new trial, filed October 10, there is an allegation of newly discovered evidence consisting of samples of the medicine which defendant allegedly was taking and which, by then, was in the possession of defendant’s attorney. When the motion for new trial was argued on October 23, defense counsel offered a bottle of pills in evidence but added that he “had no idea what the nature of the drug might be.”
This sort of approach was patently insufficient to justify the granting of a new trial. In the absence both of a chemical analysis of the medicine and of probative evidence concerning its probable effect upon the human senses, the proffered pills could not, in and of themselves, be said to constitute new evidence likely to change the result of the trial. In State v. Nordmark, 84 Kan. 628, 114 Pac. 1068, this court said:
“. . . Unless the evidence is so material that it would be likely to produce a different result the court is not warranted in setting aside the verdict. . . .” (p. 634.)
After defense counsel received the pills in question on October 6, 1969, it lay within the defendant’s power to have them analyzed. In view of the defendant’s failure to have such an analysis made and to offer the same in support of his motion, together with evidence of the probable effect of the pills when ingested, we cannot say that the trial court abused its discretion in denying the request for continuance. The situation strongly resembles that which came before this court in State v. Hill, supra, where a continuance had been asked to enable the defendant to investigate the nature of the evidence concerning which a long array of witnesses (most being unknown to defendant) might possibly testify. On page 22 of its opinion the court said:
". . . On the motion for a new trial defendant made no showing that if he had been given more time to prepare for trial he could have shown that some of the witnesses against him were not worthy of credence, or that he could have adduced evidence to contradict their testimony. It must therefore be held that overruling the request for a continuance did not constitute prejudicial error. (Citing cases.)”
The defendant’s second claim of error relates to certain questions asked of him on cross-examination which, it is argued, violated his constitutional privilege against self-incrimination and resulted in prejudicial error. Two of the questions complained of alluded to an alleged theft of a car by Mr. Hale. Upon objections being made that the defendant’s answers might tend to incriminate him the county attorney at once withdrew the questions and the trial court ordered them stricken. In this posture, error cannot be predicated on these twin incidents.
Questions were also put to Hale regarding preparations he allegedly had made to set fire to the house in which the trio lived after they abandoned it. These questions were propounded, we must assume, because of testimony given by Judy Austin that her knight-errant had made preparations for arson before leaving their place of haven. In a somewhat similar vein Hale was questioned about a shotgun found in his possession at the time of his arrest and which, it developed, had been stolen from a neighboring house.
Objections were interposed to these questions on the ground that the answers might tend to incriminate or degrade the defendant, and these claims have been renewed on appeal. In our judgment the objections were not valid and the court did not err in rejecting them.
We believe the law to be that when the defendant voluntarily takes the stand in a criminal prosecution he thereby waives his privilege against self incrimination as to all matters pertinent to the issues on trial. (Fitzpatrick v. United States, 178 U. S. 304, 315, 316, 44 L. Ed. 1078, 20 S. Ct. 944, 949; United States v. Doremars, 414 F. 2d 252; Johnson v. United States, 318 U. S. 189, 87 L. Ed. 704, 63 S. Ct. 549; People v. Roger Johnson, 382 Mich. 632, 172 N. W. 2d 369.)
In Raffel v. United States, 271 U. S. 494, 70 L. Ed. 1054, 46 S. Ct. 566, the rule is phrased by the United States Supreme Court:
“. . . When he [defendant] takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue. . . . His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge, may he the basis of adverse inference, and the jury may be so instructed. [Citation.] His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” (p. 497.)
This language was quoted with approval in the recent case of State v. Schroeder, 201 Kan. 811, 821, 443 P. 2d 284. See, also, State v. Jackson, 201 Kan. 795, 443 P. 2d 279, and State v. Aldridge, 204 Kan. 599, 603, 464 P. 2d 8.
In our opinion the questions asked of the defendant were pertinent upon the central issue being litigated — the guilt or innocence of the defendant. The theft of the shotgun from another home in the neighborhood tends to establish the character of Mr. Hale’s sojourn in that area and was admissible under K. S. A. 60-455, for the purpose of showing intent, motive and method of operation. (State v. Holsey, 204 Kan. 407, 464 P. 2d 12, State v. Kowalec, 205 Kan. 57, 468 P. 2d 221.)
Likewise, the evidence relating to the defendant’s plans and preparations to destroy his place of refuge by setting it on fire may properly be considered as part and parcel of his general scheme and as falling within the res gestae. The fashioning of an incendiary device, as testified to by his erstwhile friend, Judy, plus his actions in strewing clothing and heating elements about the house may logically be said to negative an innocent occupancy of the building. Such elaborate preparations for the destruction of the house would seem more consistent with an intention to cover up or conceal all traces of the burglary and resulting theft.
The defendant’s final claim of error relates to the sentences imposed. As we have said before, the defendant was sentenced as an habitual criminal with one prior conviction, to serve terms of not less than two nor more than ten years on each charge — burglary and larceny. The tenor of his complaint is that the two year minimum set by the court in each sentence is not authorized under the statute, but that the legal sentence for each of the two offenses can be only for a term of “not to exceed ten years.” We see merit in this contention.
The statutory penalty for burglary in the third degree, at the time this defendant was sentenced, was “not exceeding five years” (K. S. A. 21-523), while a similar punishment of “not exceeding five years” was provided by statute (K. S. A. 21-524) for larceny committed during the burglary. K. S. A. 21-107a, the Habitual Criminal Act effective when these sentences were pronounced, provides that every person convicted a second time of felony (who in certain elite circles is familiarly known as a “two-time loser”) should be confined not less than double the penalty of the second conviction.
Neither party to this appeal has cited authority concerning the point now presented, either pro or con, nor has our limited research revealed any guiding precedent. However the language of the statute seems clear enough: Upon a second conviction the statutory penalty provided therefor is to be doubled. Construing the statute strictly, as is required by our many past decisions (see cases in 5 Hatchers Kansas Digest, [Rev. Ed.] Statutes, §95), we are obliged to say that both sentences should have been only for terms of “not to exceed ten years”, and that only so much of each sentence as provides for imprisonment for “not to exceed ten years” can be approved as valid.
In summary we hold (1) the trial court did not err in denying a continuance or in overruling objections to questions propounded to the defendant on cross-examination; (2) it was error for the trial court, in sentencing the defendant, to set mínimums of “not less than two years”; and (3) the sentences are hereby corrected by striking the purported minimum terms set out in each of the sentences, thus causing each sentence to be “for a term of not to exceed ten years.”
The trial court is directed to enter the corrected sentences upon its records in this case. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein the defendant was convicted on two counts of robbery in the first degree under K. S. A. 21-527, and was sentenced to a term of not less than ten nor more than twenty-five years at hard labor in the state penitentiary on each count, the sentences to run consecutively.
The appellant contends the trial court erred (a) in failing to suppress evidence concerning his identification at a pretrial police line-up; and (b) in failing to grant a new trial on the ground he did not have an impartial jury.
The appellant herein, Marvin Clarence Coleman (also known as Jack L. Miller), was charged in two counts of first degree robbery arising from the following facts:
On the 16th day of January, 1968, a man wearing a tan colored trench coat walked into the Allis Hotel liquor store in Wichita, Kansas, between 10:15 and 10:30 p. m. He held his hand in his pocket and raised it up and indicated to the clerk, Bernice Beasley, that it was a gun and demanded money. She gave him $210 and he fled, but before leaving he told her to ‘Wait five minutes before you use the phone. I will be across the street and I can see you, and I will shoot you from there.” When the man left the clerk called the police.
On the 20th day of January, 1968, a man wearing a similar trench coat entered the same liquor store about 6:20 p. m., and in the same manner demanded the money of the clerk, Susie Calvert. She gave him $77 and he turned and left.
Mrs. Calvert observed the man go north. She ran into the street shouting that she had been robbed and pointing at the man who had just robbed her. A colored employee of the Allis Hotel, Roosevelt McCormick, was leaving the lobby of the hotel when he heard the screaming of Mrs. Calvert and her cries for help.
At that time the man in the trench coat was very close to Mr. McCormick. McCormick and Ronald Regan, a man on the street, followed the robber north at a discreet distance. Both McCormick and Regan watched the robber remove his trench coat and place it in a recessed stairway between the Allis Hotel and another building. The robber then went east with McCormick and Regan still in pursuit. Meanwhile, Mrs. Calvert had called the police.
While Regan and McCormick were following the robber in an easterly direction, two officers of the Wichita police department, who were in the vicinity and aware of the robbery, stopped the robber and attempted to question him, but the robber continued to walk. After some resistance he was placed under arrest and $77 in currency was taken from one of his pockets.
He was then taken to the Wichita police department where within a few hours a line-up was conducted, at which time Bernice Beasley, Susie Calvert and Roosevelt McCormick all identified him as the man who committed the robberies.
Prior to the trial of the case, counsel for the appellant moved the court for an order to suppress the evidence obtained from the police line-up held shortly after the appellant’s arrest. The motion was denied.
The appellant contends the suggestive influences present when the police line-up was conducted for identification purposes failed to meet constitutional safeguards, citing United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.
At the hearing on the motion conducted by the trial court out of the presence of the jury the testimony of various witnesses was taken, including that of the appellant. This hearing disclosed the following:
Don Myers, a detective on the vice squad of the Wichita police department for about fifteen years, was on duty the 20th day of January, 1968, when the appellant was arrested. At that time the appellant identified himself as Jack L. Miller. Officer Myers was conducting an investigation relative to the two robberies of the Allis Hotel liquor store and was in charge of the line-up at the Wichita police department. Prior to conducting the line-up the officer procured a waiver from the appellant wherein he waived his right to have counsel present at the line-up. The waiver was signed by Detective Barry Costello and by Officer Maninger. It also bore the signature of Mr. Jack L. Miller.
Officer Myers testified that all signatures to the waiver were affixed in his presence and that none of the officers threatened, coerced, promised or in any way forced the appellant, either physically or mentally, to sign the waiver.
At the time the other officers were signing the waiver Officer Myers was placing a call to the county attorney’s office requesting the presence of Mr. Issinghoff, a deputy county attorney, during the time the line-up was conducted. Mr. Issinghoff honored the request and was present at the line-up.
Five persons were in the line-up, including the appellant. All except the appellant were police officers because there were no other prisoners in the police jail at the time. The five persons all had similar general physical characteristics as to size, weight and color of skin (white); none of them wore a tie; they wore shirts and trousers, except the appellant wore a dark brown jacket. None of the persons in the line-up was dressed in the same type clothing. The tan trench coat worn by the robber was recovered by the officers making the arrest, but it was not worn by any of the persons in the line-up or shown in any way to the witnesses at the line-up.
Photographs of the entire line-up taken at the time the witnesses observed the suspects were used by counsel for the appellant in cross-examination.
The appellant was kept in the vice office until the line-up was conducted, and none of the witnesses called to observe the line-up had seen the appellant in the custody of any officer prior to the line-up; no photographs of the appellant were available and none was shown to the witnesses prior to their identification; and the appellant was not booked prior to the line-up.
None of the witnesses called to observe the line-up personally knew any of the officers in the line-up. It was disclosed the appellant had a little blood on his face, but this did not show in tire photographs taken of the line-up. Before the line-up the appellant was given an opportunity to wash and clean up but he refused.
It was also disclosed the appellant had approximately one day’s growth on his beard, while the other persons in the line-up were clean shaven.
The witnesses called to observe the line-up were instructed prior thereto not to make any audible sound or to say anything until the line-up was over. They were instructed to talk only to the officer conducting the line-up. The witnesses were all in the same room when the line-up was conducted, but they were separated and not sitting close to one another.
At the trial three identification witnesses were called on behalf of the state. They positively identified the appellant.
Bernice Beasley in her report to the police on the night of the first robbery, January 16, 1968, described the robber as between 30 and 35 years of age. She made positive identification of him in the courtroom, and in describing what happened at the line-up, said:
“A. Well, they brought in five or six men and lined them up under the lights, and I knew the minute he walked in the door that he was the one.
“Q. Do you recall anything about the other five or six persons in the line-up?
“A. Very little. I mean, once I saw him, I knew he was the one.”
Susie Calvert testified that when she was robbed as clerk of the liquor store in question on the night of January 20, 1968:
“. . . I sort of badgered with him just a little bit before I gave him the money. He kept saying, 1 don’t want to hurt you.’ When he would do this and try to get me to hurry, he would squint and go like that at me. And this was the thing I remembered about him.
“Q. How long was he in the liquor store?
“A. Possibly five minutes.”
Mrs. Calvert also remembered the appellant’s hair. She said:
“. . . His hair was rather long at the time, not the beatle type, long enough just to be full and brushed back and the front back.”
Roosevelt McCormick identified the appellant as “The same man that I had been trailing.”
At the trial counsel for the appellant did not explore the circumstances of the line-up identification when he cross-examined the two liquor store clerks and Roosevelt McCormick. Instead he cross-examined the two clerks as to their identification of the appellant at the preliminary hearing. Furthermore, we find nothing in the record showing that the appellant made an in-court objection to the identification testimony of the three witnesses during the trial. (State v. Holsey, 204 Kan. 407, 410, 464 P. 2d 12.)
In challenging the line-up the appellant contends:
“1. That there is evidence in the record that the technique used in the line-up was improper in that it was suggestive.
“2. That the waiver to right of counsel at the line-up was improper in that it was not freely and intelligently given.”
In United States v. Wade, supra, after the accused had been indicted and arrested for robbery of a federally insured bank, and counsel had been appointed to represent him, an F. B. I. agent, without notice to the accused’s counsel, arranged to have two bank employees observe a line-up of the accused, and five or six other prisoners. In the opinion the court said:
“Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] . . . as of the trial itself.’ Powell v. Alabama, 287 U. S. 45, 57. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an ‘intelligent waiver.’ See Carnley v. Cochran, 369 U. S. 506. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. . . .” (pp. 236, 237.)
The appellants assertion that the waiver he gave to the police officers on the night in question was not freely and voluntarily given is based upon the contention that he was intoxicated. This is his primary concern on appeal. During the examination of the appellant in support of his motion to suppress, he was asked if he had been drinking. He replied that he had but “I wasn’t so far gone that I didn’t realize what I was doing, but I was drinking.”
The trial court, after hearing all the evidence presented on the motion to suppress, made the following finding:
“. . . the Court will enter a finding that right to counsel was intelligently waived by this Defendant. By his own testimony, I think his exact words were that T had been drinking, but I was not so far gone that I didn’t know what I was doing;’ and that the waiver was executed without any threats or coercion or any promise made to him to secure such.”
Here the trial court’s finding that the appellant knew what he was doing when he signed the waiver is supported by substantial evidence and must be upheld. (State v. Shaw, 195 Kan. 677, 678, 408 P. 2d 650.) Under our interpretation of Wade, the appellant made an intelligent waiver of his right to have counsel present at the line-up. In Wade the accused was already indicted and had counsel when the line-up was conducted, but his counsel was not notified. Here the appellant had neither retained counsel nor appointed counsel at the time the line-up was conducted and no charges had been filed, but he executed an intelligent waiver of his right to have counsel present, which the trial court on all the evidence found to have been freely given.
Assuming the Wade and Gilbert cases are applicable to a line-up confrontation at the investigatory stage of the case, as here (but see State v. Griffin, 205 Kan. 370, 374, 469 P. 2d 417), the appellant’s intelligent waiver of counsel at such confrontation does not disclose a situation falling within their ambit. No constitutional right having been infringed by the absence of counsel at the line-up, in-court identifications which may have been based upon such line-up confrontation are admissible in evidence.
The appellant’s suggestion, that the technique used in the line-up was improper in that it was suggestive, is not substantiated either by the facts presented to the trial court or the argument which he presents on appeal. The situation closely parallels the line-up discussed in State v. Griffin, supra. There after considerable discussion of the facts this court said:
“Under the circumstances shown to exist, we believe the record clearly evidences a conscientious effort on the part of the police officers to afford due process of law and to protect the constitutional right of defendant. Even though the need for early identification [was] clearly indicated, the police took the time and trouble to arrange a lineup, rather than to pursue the less dependable method of showing suspects singly to persons for identification.
“There is nothing in this record concerning the lineup confrontation that indicates anything unnecessarily suggestive or conducive to the irreparable mistaken identification warned against in Stovall v. Denno, supra [388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967].” (p. 375.)
The prejudice to an accused in a criminal case from an improperly conducted line-up was expressed by the Supreme Court in United States v. Wade, supra, as follows:
“The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification. . . .” (pp. 234, 235.)
The appellant directs our attention to the fact that there was blood on the appellant’s face or nose when he appeared in the line-up and none on the others in the line-up; that the men in the line-up did not have on similar clothing to the appellant; and that the officers were clean shaven and the appellant had at least a day’s growth of beard. It is argued the cumulative effect of these discrepancies were such as to make the appellant obviously distinctive from the other men in the line-up.
The appellant cannot be heard to assert the fact there was blood on his face because he refused to wash the blood from his face when requested prior to the line-up.
In the Wade and Gilbert cases the Supreme Court of the United States was striking at the secrecy of a line-up confrontation which made it impossible for the accused’s counsel to reconstruct and ferret out suggestive influences in die identification process of an accused.
The trial court here was aware of all the circumstances attendant upon the line-up. Photographs of the line-up were examined by counsel for the appellant, but he declined to pursue the examination of the identification witnesses on cross-examination concerning the points which he now asserts as suggestive influences. He made no objection to the in-court identification testimony. The record presented by the appellant fails to disclose that the line-up procedure was either suggestive or that it improperly influenced any identification witness who testified at the trial.
The facts gleaned from the record clearly indicate the police officers who conducted the line-up herein made a conscientious effort to protect the constitutional rights of the appellant. Under the facts and circumstances presented by the record herein, we cannot say the trial court erred in failing to suppress evidence concerning the appellant’s identification at the police line-up.
The appellant next contends he was denied a trial by an impartial jury.
This charge stems from the conduct of Mack Brooks, one of the jurors. The facts are that Bob Decker, an inmate of the Sedgwick county jail, was short of funds for cigarettes. He had requested his brother to bring money to him. His brother was unable to deliver the money and requested Mack Brooks, a friend, to take $20 to Mr. Decker. This occurred sometime prior to the trial when both Decker and the appellant were inmates at the Sedgwick county jail. When Brooks delivered the money he was told by Decker to deposit $10 at the desk to his account and $10 to the account of Marvin Coleman, from whom Decker had borrowed some money. Brooks was fully repaid the $20 by Decker’s brother for this courtesy.
Brooks dismissed the incident from his mind. He had never known Coleman and had actually forgotten, when questioned on voir dire examination, that the appellant was the same person as the one for whom he had deposited $10 in the Sedgwick county jail.
During the course of the trial Decker, who was still in the county jail, placed a call to the home of Brooks requesting to see him. When Brooks returned the call he was requested by Decker to come to the jail to see him. Decker then informed Brooks he was on Coleman’s jury, and that Coleman was going to use the matter if he was found guilty.
Thereupon Brooks, not knowing what to do, went to the sheriff of Sedgwick County and informed him of the facts. The matter did not arise until it was presented on the motion for a new trial. Juror Brooks and the jury foreman were summoned to testify.
Their testimony was that the incident did not affect the verdict of the jury in any way. Brooks testified the matter did not influence his judgment either for or against the appellant, and the foreman of the jury testified there were no irregularities whatever in the jury room concerning the matter.
The Sixth Amendment to the United States Constitution requires that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The amendment prescribed no specific test. “In essence, the right to jury trial guarantees to the criminally accused a fair tidal by a panel of impartial, Indifferent’ jurors.” (Irvin v. Dowd, 366 U. S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) It is generally held that an impartial juror is one who is free from bias. (Durham v. State, 182 Tenn. 577, 188 S. W. 2d 555.) "The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law.” (United States v. Wood, 299 U. S. 123, 133, 81 L. Ed. 78, 57 S. Ct. 177.)
While the foregoing Federal Supreme Court cases have undertaken to define bias as contemplated under the Sixth Amendment which guarantees the accused in a criminal case a fair trial by an impartial jury, there is nothing in the record here showing bias on the part of Juror Brooks which prevented him from serving as an impartial juror. Therefore, these cases, upon which the appellant relies, have no application. (See § 10, Bill of Rights of the Constitution of the State of Kansas.)
In State v. Dearman, 203 Kan. 94, 453 P. 2d 7, cert. denied 396 U. S. 895, 24 L. Ed. 2d 173, 90 S. Ct. 194, this court said:
“. . . A trial court’s decision as to the qualification of a juror will not be disturbed on appeal, unless disqualification appears as a matter of law or there has been an abuse of discretion. . . .” (p. 98.)
On the record here presented we cannot say the trial court abused the exercise of its power of discretion in denying the appellant’s motion for a new trial.
The judgment of the lower court is affirmed. | [
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Per Curiam:
This controversy arises over the custody of a child. B. L. Swarens, while residing in Oklahoma, lost his wife. She left an infant daughter, about one year of age, whose name is Opal and who is the child in controversy. The father of Opal, B. L. Swarens, took the child to his parents, at Nickerson, Kan., and left her with them. The child is now about eight years of age, a bright, beautiful girl. The child’s father remarried about five years after the death of the mother of Opal. For over three years before the commencement of this action he had an established home with his present wife, on a farm near Nickerson, and is financially in comfortable circumstances. He has no child other than Opal. He and his present ■wife demanded the custody of the child, but the grand parents, plaintiffs in error in case No. 16,019, refused to surrender her to them.
On March 23, 1908, the father commenced this action of habeas corpus to recover the custody of his -child. The action was begun in the probate court of Reno county. That court awarded the child to her father, who took immediate possession under such order. The grandparents prosecuted error to the district •court, where the judgment of the probate court was affirmed. The case was then brought to this court by petition in error. Pending this proceeding, an appli■cation was made to this court in the name of Opal Swarens, asking that she be returned to the custody of her grandparents until the final determination of the •controversy. This application was denied, and by •agreement both cases were assigned for hearing together. They have been so submitted, and will be so •considered.
From the evidence it appears that the father of Opal is a well-to-do farmer; he is an educated man, and has no immoral habits. His present wife is also well edu-' cated, and of good character. They have no children, and both desire Opal to live with them. Opal has lived with her grandparents since she was one year old, and has become very much • attached to them. They are also very much attached to her. The father has not heen especially devoted to his daughter. His conduct toward her has been as though he anticipated a family from his second marriage, and felt that in such event he might deem it best to leave Opal with her grandparents indefinitely, and in that case it would be best for her if their relations were not too close and affectionate ; but, having been disappointed in this expectation, he now desires to have her with him. This-may ■not he the true explanation of his conduct, but, whether it is or not, his apparent want of demonstrative affection does not affect his rights as parent. There is no reason to doubt that the child would have a good home- and be well cared for at either place.
As a mere question of sentiment, it may seem hard to sever the ties of affection which have grown up between the child and her grandparents and place her with a stepmother who is a comparative stranger to her; but courts can not be guided by such considerations. The law regards the father, where, as in this-case, the mother is not living, as the rightful custodian, of his child as against the claims of all others. This right might, of course, be forfeited by conduct of the-father showing him to be manifestly unfit to have the-custody and care of his child. Courts, in the interest of minor children, may take them from their parents and place them elsewhere, even in the custody of' strangers; but in the exercise of this extraordinary power the rights of the parent must be recognized and. protected. It can not be assumed, without clear and' satisfactory proof, that a father is destitute of ordinary parental affection and wholly indifferent to the welfare-of his only child. There is nothing in the evidence presented here which indicates that Opal will not receive-advantages in her father’s home equal to or better than those enjoyed by children generally. The home furnished by her grandparents is in every way desirable, and in some respects, perhaps, better than can now be-given by her father; but what the future may have in store for her at either place we can not know. A child’ may not be taken from its parent merely because a home superior in some particulars is offered to it by another.
It has not been shown here that the moral or physical welfare of this child will be injured by remaining with her father, and we therefore affirm the judgmentof the district court and deny the application made in. the name of Opal Swarens. | [
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Per Curiam:
The petitioner in this case is a codefendant with the petitioner in the case of In re Schneck, ante, p. 207, and is charged with the same offense and the facts are identical. The petition is denied on the authority of that case. | [
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The opinion of the court was delivered by
Smith, J.:
Twenty-six assignments of error are made, Nos. 1, 2 and 3 of which are objections to the-jurisdiction of the probate judge to make the order which he granted. Section 239 of the civil code was. amended by chapter 281 of the Laws of 1901 (Gen.. Stat. 1901, §4686), and by the amendment probate-judges were devested of the power to allow temporary injunctions, and were authorized to issue restraining-orders only upon certain contingencies. This is now the limit of the jurisdiction of a probate judge in this regard. “Temporary injunction” and “restraining order” are often used synonymously. Our statute and the better usage limits the meaning of “restraining order” to such an order as is operative only until a. hearing can be had upon an application for an injunction, and of “temporary injunction” to an order operative usually until the final hearing of the case in which it is issued. (Civ. Code, §241; 8 Words & Ph. Jud. Def. 6902; 7 Words & Ph. Jud. Def. 6183; 16 A. & E. Encycl. of L. 345-349.)
The restraint which the order purports to impose,, and not the name given to it, determines its true name- and character. The order of the probate court enjoined the appellant until the further order of the district court or the judge thereof in the premises. It required no revocation, but expired upon the making of an order by the district court or judge. It was-simply a restraining order, and within the jurisdiction, of the probate judge.
The fourth objection is that the evidence before the-probate judge was insufficient to justify the issuance-of the order. As the affidavits were verified only upon information and belief, the allowance of the order thereon was probably erroneous, but, the court having jurisdiction, its order was not void. (Rowe v. Palmer, 29 Kan. 337; 16 A. & E. Encycl. of L. 438.)
Objections numbered 5 to 20, inclusive, are presented as one, the principal question raised being the right to a jury trial upon demand therefor. The various propositions presented have been determined in this court adversely to the contention of appellant. (The State v. Thomas, 74 Kan. 360, 86 Pac. 499, and cases there cited.) We adhere to the conclusion therein set forth.
The proper manner for parties and their counselors to test the validity of an order of court is not to defy the order, but to move, in the court which issued it or in some court having supervisory jurisdiction, to have it set aside. The appellant in this case was fortunate in the leniency of the court.
The appellant does not appear to have especial interest in the question whether the school fund or the county treasurer is to be enriched by the fine imposed, and it is not for our consideration here.
We have examined all the other questions presented and find no prejudicial error. The judgment is affirmed. | [
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The opinion of the court was delivered by
PORTER, J.:
Plaintiff sued to recover the value of her interest in certain real estate. The cause was tried to the court, without a jury, and judgment given for defendant. Plaintiff brings error.
In March, 1893, ten persons joined in the purchase of certain real estate in Texas, consisting of timber lands, each person agreeing to pay the sum of $945. At the same time they formed a partnership, known as the Newton & McPherson Timber and Lumber Company, for the purpose of manufacturing lumber, posts, and ties, but the business for which the partnership was formed was never carried on. The title to the real estate was taken in the name of W. J. Puett, in trust for the company, and he was elected secretary .and treasurer. In May, 1893, G. W. Branine, one of the ten, sold his interest in the land to the plaintiif. From that date her name appeared upon the books of the company, and she paid from time to time her proportionate share of the taxes. She made the purchase through W. J. Puett, the trustee. In December, 1898, Puett sold his interest to C. H. Way, who was one of the original parties, and at the same time executed a deed conveying the real estate to him, as trustee. This conveyance was made at a meeting of all the persons interested, except the plaintiff, who knew nothing about the transaction until long afterward. On the first day of March, 1904, C. H. Way, having purchased all the interests except that of the plaintiff, sold and conveyed the land without her knowledge or consent.
The main contention is that the plaintiff had no right to buy an interest in the partnership without the consent of all the other partners, and such seems to be the theory upon which the judgment was rendered. To this we can not agree. The interest of each partner in the partnership property is his share of the surplus after payment of all partnership debts and settlement of all accounts between himself and his partners. (Sanborn v. Royce, 132 Mass. 594; Nicoll v. Mumford, 4 Johns. Ch. [N. Y.] 522.) A partner may dispose of his interest in the partnership to a third person. The only limitation on this right is that he can not by such transfer introduce the purchaser into the firm without the consent of the other partners. (22 A. & E. Encycl. of L. 104, 105, and cases cited.) In equity the purchaser acquires the right to call for an accounting and settlement. (Bank v. Carrollton Railroad, 78 U. S. 624, 20 L. Ed. 82.)
Where there is any matter in doubt it is proper to consider the course of conduct for .a considerable period as indicating the true construction of the partnership agreement. (22 A. & E. Encycl. of L. 113.) In this case the parties called themselves partners, and a partnership was formed for the purpose of carrying on a. certain business, but no attempt was made to conduct any business. All that was done was to purchase the real estate in the name of a trustee, who held it in trust for the partnership. It appears from the evidence that in the numerous conveyances which were made between the different partners the interest conveyed was usually described as a certain interest in this particular real estate. The defendant purchased, the interest of all the others, but there is no evidence to show that before doing so he procured or attempted to procure the consent of any of the other partners. While it is true that the interest which partners have in the real estate owned by the firm is peculiar to itself, and is said not to partake commonly of the characteristics of estates in common or in joint tenancy, yet in view of the construction placed upon the articles of agreement by the partners in this transaction, and the absence of anything in the agreement to the contrary, we must hold that the persons held the title to the real estate as tenants in common. One tenant in common may sell his interest in real estate at any time without the consent of his cotenants.
When the defendant took the conveyance to himself as trustee and purchased the interests of the others he had constructive, if not actual, notice that the plaintiff had an interest therein. Her name was on the books kept by the former trustee, which disclosed the names of all the parties interested in the company and the amounts each one had paid. When he accepted the trusteeship he was entitled to the possession of the books. There is some evidence that he received the books on the first day of February, 1904, and that he sold the land a month later. But in any event he had constructive notice of her interest.
For these reasons the judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff recovered damages suffered on account of the death of her husband, Warren A. Burks, occasioned by the negligence' of the defendant. At the time he was injured the deceased was engaged in an attempt to make a coupling of freight-cars. On the trial of the action it became material whether the coupling device of one of the cars was defective, and whether the defendant had notice of the defect.
Previous to the time the case was called for trial the plaintiff served upon the defendant a notice demanding an inspection and copy, or permission to take a copy, of the report of car inspector L. H. Klein, or any other car inspector or person employed by the defendant, relating to inspections of the car in question made shortly before and shortly after the date of the casualty. The defendant made no response, and the plaintiff filed an unverified motion for an order requiring compliance with the demand. The record of the proceedings at the hearing of this motion recites that the plaintiff introduced in evidence the demand :for an inspection and copy of the documents referred to, and that the court, having heard the motion and demand and proof of service and having duly inspected the same, and having heard the argument of counsel and having been duly advised, made an order in terms as prayed for. This order was duly excepted to, and was ignored.
At the trial the plaintiff offered in evidence her affidavit stating that reports of the character described in the notice, motion and order had been made to the defendant, and stating what they contained. She •averred that the defendant’s inspectors made reports, both before and after the accident, showing that the coupler in question was defective. The offer was made in lieu of the reports themselves. The defendant objected, challenging the existence of the documents described, asserting that no foundation had been laid for the introduction of the affidavit, and maintaining that its contents were secondary and hearsay evidence only. The court met the objection in the following manner:
“My idea is this: I think, taking the proceedings that have heretofore been had, the application made to the court for permission to take a copy of this report, and the order that was made by the court, and the affidavit now filed by the plaintiff, that this is at least prima facie evidence there was such a report, but the defendant says there was n’t any. Now, then, I will give the defendant an opportunity to show there was, no such report, if the defendant wishes to do so.”
The defendant elected to rely upon the legal questions presented, the affidavit was read to the jury, and the court instructed the jury that they were at liberty to presume that reports had been made as stated in the affidavit, and were at liberty -to consider such alleged reports in connection with all the other evidence in the cause in determining what the condition of the coupler was when Burks was killed. Exceptions by the defendant were duly saved.
Error is assigned upon the order requiring the defendant to permit an inspection and copy of the alleged reports, upon the admitting in evidence of the plaintiff’s affidavit relating to such reports, and upon the instruction to the jury regarding them. The statute involved is section 368 of the code of civil procedure,, which reads as follows:
“Either party or his attorney may demand of the adverse party an inspection and copy, or permission to, take a copy of a book, paper or document in his posséssion or under his control, containing evidence relating-to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper or document with sufficient particularity to enable the other party to distinguish it; and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may in their discretion order the adverse party to give to the other, within a specified time, an inspection and copy or permission to take a copy of such book, paper or document; and on failure to comply with such order the court may exclude the paper or document from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness.”
The order in question is clearly reviewable under section 542 of the civil code, permitting the reversal, vacation or modification of intermediate orders involving the merits of an action or some part thereof. It is the manifest intention of the statute to reach the merits of the action. Its language so indicates, and its provisions are so framed. A party might altogether fail on the merits if he were denied the benefit of the order provided for, and his adversary might be able to trace defeat on the merits entirely to an affidavit admitted in evidence because of non-compliance with the order, or to the exclusion of documents which he desired to offer but which he had declined to allow to be inspected and copied. _ The order, however, is of a purely intermediate character. Its consequences can not be observed until they are registered in the result of the trial on the merits, and hence it is not reviewable until after judgment.
The procedure to obtain the order is by motion and notice, after demand and non-compliance. No provision is made for the framing of issues on the motion. The adverse party is not called upon to show cause why the order should not be made, but the party applying must establish his right to it before the order may lawfully be granted.
To entitle a party to the order there must be in. existence a book, paper or document to be inspected and copied, and this book, paper or document must be in the possession or under the control of the adverse party. These facts are conditions precedent, and neither of them can be taken for granted. The circumstance that a demand has been made and ignored does not prove or tend to prove that they exist. The circumstance that a motion has been made asserting their existence does not afford any evidence of the truth of the assertion. The facts must be proved in some juridical way before the court is authorized to proceed, and the burden is upon the applicant to make the proof. The adverse party need not move until something has been presented which he needs to combat.
In most jurisdictions either statutes or rules of court provide for a verified application or for an affidavit to accompany the motion; in others rules derived from the old chancery practice relating to discovery exist. No rule of procedure has fallen under the observation of the court sanctioning the granting of an order without any showing other thaff the naked assertion of an unverified motion. It has been held that the inviolable right to be secure against unreasonable searches is involved. The right to immunity from the production of incriminating evidence and the right to protect privileged documents from disclosure may be jeopardized, and in many other respects the remedy is of such gravity and importance that it can not be administered .in any other than a judicial way. It is not necessary that the facts alluded to shall be established beyond all controversy, and in many instances slight evidence may suffice, but their existence must fairly and reasonably be made to appear by some legally recognized method, in the absence of an admission dispensing with proof.
These propositions are not contested by the plaintiff. Her position seems to be that when the court made the order it was judicially determined that the desired documents were in existence and in the defendant’s possession or control, and hence that an incontestable foundation was laid for the introduction of the affidavit. The difficulty with this argument is that it does not meet the challenge of the first assignment of error. In legal effect it was judicially determined when the order was made that the documents in question were in existence and in the defendant’s possession, but that determination was not made according to law. The record conclusively proves that the motion was unverified, that no affidavit was filed in support of it, that the only evidence introduced was the demand and proof of service, and that the court acted upon an inspection of the papers merely. Indeed, it is not disputed that no evidence was offered upon which to base an adjudication of fact, and, the record having been made up to cover the question, it can not be aided by presumption. It is only in respect to subjects concerning which the record is silent that presumptions may be indulged to support a judgment or order.
The court at the trial fully appreciated the necessity for proof of the facts in controversy before the affidavit could be admitted, and that no such proof existed until the affidavit came in, but its effort then to solve the situation was nugatory. The plaintiff was not making an application for a new order, and was not offering the affidavit in support of the order already made. She was demanding that the affidavit be received because an order theretofore lawfully made had been disobeyed. The defendant was not asking for a further hearing, but was contending that facts essential to the validity of the order were missing. No doubt a party may absolve himself at the trial on the merits by showing pertinent facts disabling him from comply- ' ing with a valid order, but the time to try the fundamental facts upon which an order must be based is when the motion is heard. Orderly procedure requires that the progress of the trial on the merits should not be interrupted by what may be a long-drawn-out and fiercely contested preliminary matter. It may be of the utmost importance to one or both of the parties, that the hearing upon the right to an inspection should not be delayed until the trial is on. But, beyond this,, there should be no order until the indispensable requisites prescribed by the statute are established, and an. order granted without authority can not be validated by a subsequent showing of sufficient grounds for it.
It is said that the granting of the order rested in the. discretion of the court, and that the exercise of such discretion is not reviewable except in a clear case of abuse. The opportunity for the exercise of discretion, does not arise until there is a field for its operation. The court has no discretion to order an inspection of a. document of whose existence and locality it is ignorant.
The South Carolina code is substantially the same as. that of this state. In the case of Jenkins v. Bennett, 40 S. C. 393, 18 S. E. 929, the notice of the hearing of a motion for an order of inspection stated that the motion would be based upon the pleadings in the action and the accompanying affidavit of the plaintiff. Th& affidavit referred to certain plans and specifications- and to a contract which it was said “contain evidence relating to the merits of the above-named action.” (Page 399.) On appeal an order based on this showing-was reversed, the court saying:
“We think it clear that before this somewhat extraordinary power should be exercised the moving party should show, at least prima facie, such- fact or facts as-would enable the court to exercise its discretion as to whether such a power as is invoked should be exercised. Now, in this case no facts of any kind are stated in the affidavit upon which the motion was based. The-bald statement that the papers desired to be inspected ‘contain evidence relating to the merits of the action’' is nothing more than an expression of the plaintiff’s opinion, and can not be regarded as a statement of any fact. ... It seems to us that the order was erroneously granted, and should, therefore, be reversed; not because the circuit judge erred in the exercise of his discretion, but because the moving papers showed. no facts upon which his discretion could be exercised.” (Pages 400, 401.)
The existence of facts essential to its validity not having been established by affidavit of the plaintiff or otherwise, the order granting the right to inspect and take copies was erroneous. Being erroneous, it furnished no foundation for the admission of the affidavit in evidence. The affidavit having been admitted because of non-compliance with the order, and having contained matter of the utmost importance in the determination of vital questions in the case, the error was prejudicial.
Aside from the relation of the affidavit to the order, objection was made to the'-contents of the affidavit because they were hearsay, and the point was specifically made that if the original inspector’s reports were offered they would be hearsay. The question is whether these agent’s reports are admissions of the defendant company as to the defective condition of the coupling apparatus. The rule of law is correctly formulated, so far as public corporations are concerned, by Judge Dillon:
“An admission by a corporation of a fact or of a liability, duly and properly made, is, of course, evidence against it. But a municipal corporation, by accepting —that is, receiving — the report of a committee of inquiry, does not admit the truth of the facts stated therein; and such a report, though accepted by a vote of the corporation, is not admissible in evidence against it.” (1 Dill. Mun. Corp. [original section 242], 4th ed., § 305.)
The same doctrine governs in the case of a private corporation, and is stated in the second edition of Abbott’s Trial Evidence, at page 64, as follows:
“An official statement or report received by the corporation or board from one acting as officer, and accepted and adopted by them, is competent evidence against the corporation, and those bound by its acts, without further proof of the appointment of the officer; but a report to a corporation or board is not made ad missible in evidence against it by the mere fact that it was received and ‘accepted’ by it, except for the purpose of charging it with notice of the contents.”
It can make no difference in the application of the rule whether the investigation and report are made before an accident has occurred, with a view of making repairs if necessary, improving the equipment or service or preventing accident, or whether they occur after an accident, with a view of ascertaining the circumstances or cause. The commission of the inspector is the simple obtaining of information upon which the company may act, and when he makes a report of what he has observed the corporation does not speak through him as in cases where a principal sends his agent out to transact his business with the public, so that whatever the agent may say or do in the prosecution of the enterprise while he has it in charge is the speech and act of the principal. The report is only a recital of the inspector’s observation, and does not commit the company to its truth until it is taken up and adopted as the position of the company by some one having authority to bind it in such matters. In litigation between the company and a third person the inspector is a competent witness as to what he saw, but the existence of the state or condition in controversy can not be proved against the company by his mere declaration concerning it.
Suppose that several officials having authority, but acting independently, should cause a bridge or building or piece of track or machinery to be inspected by different subordinates, and that the reports should disagree; suppose an accident should occur in the operation of a train, that the rules should require every employee connected with the train to investigate and report the physical facts, and that the reports should disagree: What is the truth, and which of these reports, made by agents designated for the purpose, and who therefore act “in the line of duty,” are admissions by the com pany of the state of facts narrated? Considerations, like these led Mr. Chief Justice Bleckley, distinguished alike for his keen penetration and sound judgment, to. say:
“It surely can not be sound law to hold that by collecting information, whether under general rules ofspecial orders, and whether from its own officers, agents and employees or others, a corporation acquires, and takes such information at the peril of having it treated as its own admissions, should litigation subsequently arise touching the subject-matter. As well' might it be considered that any and every suitor who-sends out agents to discover witnesses and collect .facts touching his rights or duties regarding a pending or prospective lawsuit is to be met at the trial with the. communications made by or to such agents, as admissions made by himself.” (Carroll v. The East Tennessee, Virginia and Georgia Railway Co., and viceversa, 82 Ga. 452, 475, 10 S. E. 163, 6 L. R. A. 214.)
While investigating the condition of its own property and affairs, taking the reports and opinions of its employees upon the subject, and considering what course it ought to pursue, the corporation holds no relation to the general public which enables third persons to seize upon some intermediate step or statement in the proceeding apparently to his advantage and say that a final admission has been made at that point. But let it be conceded that the inspection of coupling appliances on the cars of its trains is a branch of a railway company’s business which brings its inspectors in contact with the public, and what is the result? It is elementary law that to bind his principal the declarations of an agent must be contemporaneous with the event in question, must be made in the transaction of the business committed to his charge and as a part of it, and must be calculated to unfold its nature and to illustrate and explain its character so that acts and declarations combine and harmonize to form one transaction. During ah inspection only those declarations could bind the company which would illustrate, explain and character ize the work of making the inspection. After an inspection has been completed a narration of the things impressed upon the inspector’s senses would fill none of the requirements of an admission; and, the function of binding the company by admissions not having been delegated to the inspector, the making of the report itself, considered as a part of his business, could not include such a consequence.
The following cases contain discussions of the principles involved which support these views: Carroll v. East Tennessee, Virginia and Georgia Railway Co., and vice versa, 82 Ga. 452, 10 S. E. 163, 6 L. R. A. 214; Powell v. Northern Pacific Railroad Co., 46 Minn. 249, 48 N. W. 907; North Hudson County Railway Co. v. May, 48 N. J. Law, 401, 5 Atl. 276; Insurance Company v. Mahone, 88 U. S. 152, 22 L. Ed. 593; Wabash R. R. Co. v. Farrell, 79 Ill. App. 508; The C., C., C. & St. L. Ry. Co. v. Ullom, Adm’x, 20 Ohio C. C. 512; Doyle v. St. Paul, Minneapolis & Manitoba Ry. Co., 42 Minn. 79, 43 N. W. 787; Verry v. The B., C. R. & M. R. Co., 47 Iowa, 549, 551; Reem v. St. Paul City Ry. Co., 77 Minn. 503, 80 N. W. 638, 778; Wellington v. Boston & Maine Railroad, 158 Mass. 185, 33 N. E. 393; Bessemer Coal, Iron & Land Co. v. Doak (Ala.), 44 South. 627, 12 L. R. A., n. s., 389.
The case of Vicksburg, &c., Railroad Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257, might seem on first impression to be an opposing authority, but it probably does no more than carry out the doctrine expressed in the quotation from Abbott’s Trial Evidence, supra, that when a report has been adopted and promulgated as that of the corporation it is admissible in evidence against it. In that case the superintendent of a railroad, who doubtless was regarded as an agent with power to know and declare the condition of the road, had made printed reports to the board of directors, which were admitted in evidence in a personal- injury case. The court devoted a single sentence to the subject, which reads thus:
“The reports made by the superintendent to the board of directors in the course of his official duty were competent evidence, as against the corporation, of the condition of the road.” (Page 553.)
The decision in the case of Va-Carolina Chem. Co. v. Knight, 106 Va. 674, 56 S. E. 725, is sustainable upon the same theory, although such may not have been the court’s view. In that case it appeared that it was the practice of the defendant’s superintendent to make an immediate report in case of an accident to an employee, and to send it to the main office, which then forwarded the report to an insurance company that had undertaken to indemnify the defendant against loss. That course having been pursued, the document was admitted in evidence as an admission of the defendant that the party injured was an employee.
The following cases reach conclusions different from those expressed above: Texas & Pacific Ry. Co. v. Lester, 75 Tex. 56, 12 S. W. 995; Lipscomb v. Railroad Co., 65 S. C. 148, 43 S. E. 388; Lynchburg Telephone Co. v. Booker, 103 Va. 594, 50 S. E. 148; Krogg v. The Atlanta and West Point Railroad et al., and vice versa, 77 Ga. 202, 2 Am. St. Rep. 77.
In some jurisdictions the position is taken that reports of the kind in question are confidential communications, and that such communications are not admissions, the rule of privilege being applied. (Ex Parte Schoepf, 74 Ohio St. 1, 16, 77 N. E. 280; Cully v. Northern Pac. R. Co., 35 Wash. 241, 77 Pac. 202; In re Devala Provident Gold Mining Company, L. R. 22 Ch. Div. [Eng.] 593.) Under the statute of this state defining what are privileged communications, such reports in the hands of the company would not be privileged. What their status might be if in the hands of the company’s attorneys need not be discussed.
The court is of the opinion the inspector’s reports. offered in evidence through the medium of the plaintiff’s affidavit were inadmissible to prove the condition of the coupling appliance to which they referred.
The plaintiff has made no contest and has cited no authorities upon the subject just discussed, but has chosen to rely entirely upon the proposition that the reports in controversy established notice to the defendant of the defective condition of the coupling device. The proposition is too broad. Such reports, when duly received according to some regulation or customary practice, are notice to the company of their contents. Whether they afford notice of the defective condition of a coupler depends upon whether defects in the coupler are proved, and the proof must be by evidence other than the reports themselves. However, the judgment can not be saved on the point urged, because the court specifically instructed the jury, as before noted, that the reports might be considered in determining the condition of the coupler when Burks, was killed.
Since the case must be reversed, some further observations upon the procedure involved are necessary. The plaintiff argues that she needed to see the inspector’s reports in order to determine who should be subpcened' as witnesses to show the defective condition of the coupler. An order of inspection can not be granted for any such purpose. The only right to be conserved is that of a party to have the evidence which is contained in a document in the hands of his adversary.
The motion for the order should contain all the facts entitling the applicant to the relief desired. It is not enough that according to a 'priori reasoning the desired documents should be in the opponent’s possession. It is not enough to say that the documents referred to contain evidence relating to the merits. The facts-should be stated with reference to every essential matter. The determination of the question of materiality at the hearing on the motion need not be absolute, and is not conclusive, but the court should be enabled to see for itself that a fair case of materiality is presented.
In this case the affidavit of the plaintiff contained a .large number of statements in no way descriptive of the documents in controversy, some of which were .highly prejudicial to the defendant. Nothing should be read to the jury except the allegations-showing the character of the documents which have not been produced in obedience to the order — that is, the statements which take the place of the documents themselves.
If an order of inspection has been wrongfully disobeyed, and an affidavit has been received in lieu of the documents, the adverse party is then concluded. He has no right to cross-examine the affiant upon the •statements contained in the affidavit.
The judgment of the district court is reversed, and ■the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
The facts being agreed upon and in writing, this court is in the same position to weigh and interpret them as was the court below. Whether the money was paid under a mistake of fact is practically conceded to be the controlling question.
To entitle the plaintiff to recover, we shall assume, in accordance with the contention of the defendant, that the mistake must have been at the time of the payment mutual, and the alleged mistaken fact material. What, then, was the situation at the time of the payment? The money had been lost. Diligent efforts were made by both parties to discover what became of it, which resulted in tracing it to the hands of'the plaintiff’s son. He could not account for it, and no further trace of it could be found. Before reaching Emporia, where an investigation was made by defendant’s representative and another man who accompanied him, the plaintiff was informed “that it was evident that one of two men had the money.” After making the investigation they informed the plaintiff and his son “that they were unable to find out anything concerning the loss” and demanded payment of the amount lost from the plaintiff’s son. Then the plaintiff, according to the agreed statement of facts, “believing the fact to be that, after said' W. H. Lowe had received the package at Emporia, he had dropped the same before reaching the defendant’s office at the depot in Emporia, and further believing that some one had picked the same up and carried it away,” paid the amount of the loss to the defendant.
When the defendant’s agent under these circumstances demanded payment of the loss from the plaintiff’s son and received the payment from the plaintiff we think the defendant should not be heard to say that it did not believe that the plaintiff’s son had lost or appropriated the money. Both parties, then, believed a material fact to exist which did not exist, and which alone led to the payment of the money.
That another stole. the money after the plaintiff’s son had “safely conveyed it to defendant’s office at the. depot in Emporia, Kan., 'and there placed it with other packages,” is not material except to show the mistake by reason of which the plaintiff paid the money. There is no recital in the statement of facts, and there is no presumption, that the failure of W. H. Lowe to take a receipt for the package induced Davis to steal the package. It is true the rule of the company required W. H. Lowe to take a receipt for each article of express which came into his possession as agent of the defendant when he parted with such possession. His failure to do so was negligence, and for such negligence he was responsible to the company for such damages as could be reasonably anticipated to flow therefrom. We can not. say, however, that when he safely deposited the package in the defendant’s office with other packages, presumably of like character, it was reasonably to be anticipated that some other employee of. the company would steal the package. If not, .there was no consideration for the payment. The theft was the proximate and independent cause of the loss; the negligence was not'. The payment was made and received under the belief that W. H. Lowe, and not another, had lost or appropriated the package.
The defendant bases its defense practically upon the proposition “that the money was lost, and lost by reason of the carelessness and neglect of duty on the part of W. H. Lowe.” We do not think this conclusion follows from the facts.
There is much discussion and citation of authorities in the briefs as to what must be the nature of the mistake of fact to entitle a party to recover. A succinct definition, which-we think correct, is given in volume 27 of the Cyclopedia of Law and Procedure, at page 809:
“A mistake which takes place when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist; one not caused by the neglect of a legal duty on the part of the person making the mistake; an unconscious ignorance or forgetfulness of a fact past or present material to the contract ; a mistake not caused by the neglect of a legal duty on the part of the person making the mistake and consisting in an unconscious ignorance or forgetfulness of a fact past or present material to the contract or belief in the present existence of a thing material to the con tract which does not exist or in the past existence of a thing which has not existed.”
It is a general rule that money paid under a mistake of fact, where the party seeking to recover was not intentionally ignorant nor grossly negligent in failing to discover the facts, can be recovered. Money paid by an express company on a claim for the loss of goods, under the mistaken belief that it had received them for shipment, may be recovered. (J. S. Hulse Hardware Co. v. American Express Co., 65 Ill. App. 596.) Plaintiff’s recovery of a bank-book could not be defeated on the principle of voluntary payment where, her son having accidentally set fire to defendant’s property, she transferred the book to the defendant, not willingly, but because of some supposed legal liability on account of the son’s act, defendant having no right or pretense of right, but merely having asked plaintiff if she could not make him some recompense for the loss, and having asked her to sign a writing transferring the book. (Bishop v. Corning, 37 N. Y. Supr. Ct., App. Div., 345, 57 N. Y. Supp. 697.)
“Money paid under a mistake of fact may be recovered. The fact that the person making the payment has the means of knowledge at hand and overlooks the same by an inadvertence is immaterial if the party receiving the same is not entitled to it.” (Girard Trust Co. v. Harrington, Appellant, 23 Pa. Super. Ct. 615, syllabus.)
(See, also, City of Covington v. Powell, 59 Ky. 266; City of Louisville v. Henning & Speed, 64 Ky. 381; Pearson v. Lord, 6 Mass. *82; Lazell v. Miller, 15 Mass. 207; Guild v. Baldridge, 32 Tenn. 295; Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L. R. A. 469.)
It is contended that the payment in question was a voluntary one and can not be recovered, and among other authorities cited to support this proposition are the following: Phillips v. Jefferson Co., 5 Kan. 412, Wabaunsee Co. v. Walker, 8 Kan. 431, Irwin v. Thomas, 12 Kan. 93, K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kan. 587, Sapp v. Comm’rs of Brown Co., 20 Kan. 243, and Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431. We have examined all these cases and find that they are really authorities against the proposition contended for. The decisions in each case are based upon the proposition that the plaintiff with full knowledge of the facts voluntarily made the payment.
In the case at bar the plaintiff made every reasonable effort to ascertain what became of the lost package of money, without success. The facts which came to his knowledge from investigation evidently led him to believe, and he paid the money believing, that his son had lost the package by dropping it. This was not true. It was lost by being stolen by another employee from a place in the defendant’s office where the plaintiff’s son had safely deposited it. This we think is a clear mistake of fact. A fact was believed to exist which did not exist, and a fact existed which was not known; otherwise the money would not have been paid, it is safe to infer. Under the real facts neither the plaintiff nor his son were under a duty to pay the loss, and the defendant had no right to retain the money after it was paid. The company was indemnified against loss from the misfeasance of Davis as well as of young Lowe.
It is contended that the language incorporated with the receipt which the defendant executed and delivered to the plaintiff became a contract when accepted, and determined the conditions only upon the occurrence of which the defendant was bound to return the money or any part thereof. Some courts hold that equity refuses to enforce contracts made under a mistake of fact against one injured thereby, where no wrong is done to the other party. The repayment of the money puts the defendant in the same position that it was in before payment.
The judgment is reversed and the case is remanded, with instructions to render judgment for the plaintiff. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action by Henry to recover damages for injury to household goods in the great flood of 1903, at Kansas City, Mo. Judgment was for the plaintiff, and the railway company brings proceedings in error.
The petition in the case alleges simply that plaintiff delivered the goods to the defendant at Topeka, Kan., to be safely conveyed to Kansas City, Mo., and there to be safely delivered, for hire, to the plaintiff; that the defendant did not safely and securely carry, nor safely deliver, the same to the plaintiff at Kansas City; and that on account of the conduct of the defendant the property was wholly lost to the plaintiff, to his damage in the sum of $2220.73. In its answer the defendant admitted the receipt of the goods oh the 27th day of May, 1903, and alleged that it immediately transported the same to Kansas City, Mo., where the same arrived on the 28th day of May; that it immediately notified the plaintiff in the usual and customary manner of the arrival of the goods, but that the plaintiff failed and neglected to call for and remove the goods from the defendant’s freight-house at Kansas City, Mo., until affter the 31st day of May, 1903; that on the 31st day of May there was an unprecedented flood, whereby the tracks, freight-house and other property of the defendant were submerged and flooded with water, and the property of the plaintiff in the possession of the defendant was damaged; and that all the damage done to the property of the plaintiff was through the act of God, and was in no manner caused by any negligence on the part of the defendant, its officers, agents or servants. The reply was a general denial.
The undisputed- facts other than shown by the findings copied below are that the goods arrived at Kansas City, Mo., on the night of the 28th of May, and were unloaded into the defendant’s freight-house in the fore noon of the next day. During the afternoon of 'die-day the goods were unloaded the defendant notified the plaintiff by postal cards, one addressed to his residence and one to his office, of the arrival of the goods. The plaintiff received these notices about noon of the 30th of May, and almost immediately secured a dray and. went to the defendant’s freight office and called for the . delivery of his goods. An employee of the defendant at its freight-depot informed the plaintiff that it was. a holiday and they could not deliver the goods that day, and that the cashier was not at the office. On the following day, May 31, there was an overflow of the Kaw river, and the water rose rapidly in and around the defendant’s freight-depot and the goods could not be delivered for about seven days thereafter. The plaintiff received the goods under protest on the 9th day of June following, or at least notified the officers of the-defendant that he did not waive his claim for damages, in taking the goods. The findings of the jury on questions of fact in dispute are as follow:
“(16) Ques. Was May 30, 1903, a legal holiday-under the statutes of Missouri ? Ans. Yes.
“(17) Q. Was the local freight-office of the defendant at Kansas City closed for business with the public at noon on May 30, 1903, for the balance of the day?” A. No.
“(18) Q. Did the cashier, Storey, work at his office at the local freight-depot of the defendant during the entire day of May 30, 1903, excepting during lunch time? A. Yes.
“(19) Q. Was the assistant cashier, Morrison, at his office at the local freight-depot of the defendant at Kansas City, Mo., on May 30, 1903, up to about one o’clock in the afternoon of that day? A. Yes.
“(20) Q. Was the delivery clerk, Jewell, at the freight-house of' the defendant at Kansas City, Mo., up to about noon of May 30, 1903? A. Yes.
“(21) Q. Was his assistant, Jackson, at the freight-house of the defendant at Kansas City, Mo., during the whole day of May 30, 1903? A. Yes.”
“(24) Q. Was there a flood at Kansas City, Mo., • covering the bottoms between the bluffs on either side of the Kaw, or Kansas, river on May 31, 1903, and for several days thereafter ? A. Yes.
“(25) Q. If you answer the last above question in the affirmative, please state if the flood was occasioned by the Kaw, or Kansas, river overflowing its banks and spreading over the entire bottoms between said Ttjlufís -A. Ycs
“(26) Q. On May 31, 1903, and for several days thereafter, was that portion of the bottoms upon which the local freight-depot of the defendant was located submerged with water by reason of such flood? A. Yes.
“(27) Q. If you answer the last above question in the affirmative, please state the depth of the water at or near the location of the local freight-depot of the defendant at Kansas City, Mo. A. About ten feet.
“(28) Q. How deep was the water during said flood in the local freight-depot of the defendant at Kansas City, Mo.? A. Evidence was it was six feet and eight inches.
“(29) Q. Was the shipment in question in the freight-house of the defendant at Kansas City, Mo., during the flood above referred to ? A. Yes.
“(30) Q. If you answer the last above question in the affirmative, please state for how many days the shipment in question was submerged in water. A. About seven days.
“(31) Q. Was the flood of May 31, 1903, and for several days thereafter, an extraordinary and unprecedented flood? A. Yes.
“(32) Q. During May 31, 1903, did the water rise rapidly in the vicinity of the freight-depot of the defendant at Kansas City, Mo.? A. Yes.
“(33) Q. Was the flood of May 31, 1903, and for several days thereafter, at Kansas City, Mo., greater than any flood which had occurred within the past fifty years ? A. Evidence showed it was.
“ (34) Q. After it was discovered that the water was overflowing the bottoms and rising around the freight-house of the defendant at Kansas City, Mo., was it practicable or possible to remove the accumulated freight from the freight-depot of the defendant at Kansas City, Mo.? A. No.
“(35) Q. Was the damage to the shipment of the plaintiff in question caused by the flood in question? A. No; it was caused by the defendant’s re'fusal to deliver goods in question to plaintiff when he demanded them.
“ (36) Q. Did the flood in question extend from bluff to bluff in the Kaw, or Kansas, river bottoms in Kansas City, Kan., and Kansas City, Mo., on May 31, 1903, and for several days thereafter? A. Yes.”
We regard it as immaterial whether May 30, 1903, was a legal holiday in the state of Missouri, as no such issue was presented by the pleadings and the jury found that the defendant’s freight-office was open for business on the afternoon of that day. There was no evidence, however, that the defendant on that day or at any time denied the plaintiff’s right to the goods, but it was shown that the clerk to whom the application therefor was made simply postponed the time of delivery. The petition does not set forth a cause of action for conversion, and, if it did, the evidence would not support such a claim. (3 Hutch. Car., 3d ed., § 1372; 28 A. & E. Encycl. of L. 708, 709.)
The principal question in the case, then, is whether the defendant, having negligently and without proper-cause failed to deliver the goods when demanded, is responsible for the damage which resulted to the goods; in other words, What was the proximate cause of the •loss? In fáiling to deliver his goods to the plaintiff when demanded the defendant was guilty of negligence, and the well-recognized rule is that for the negligent, failure of a party to perform a duty imposed by his contract he is liable in damages to the other party for such loss as at the time of the omission would probably, or should reasonably, be expected to flow therefrom, and no other. If one owing a duty neglect to-perform it, and a cause which could not have been reasonably apprehended intervene, and loss result, the-latter cause, and not the omission of duty, is the proximate cause of the loss. If the plaintiff had not shipped the goods from Topeka the loss could not have oc~ curred, nor couM it have occurred if the defendant had delivered the goods when demanded; but nearer than these causes, proximately, the flood caused the damage. Elaborate quotations and an exhaustive discussion of' this subject is to be found in Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A., n. s., 658, and the conclusion above stated is fully sustained.
There was no evidence that at the time the defendant refused to deliver the goods the flood of the following day should have been apprehended from facts known to the defendant, or from facts generally known which, the defendant, in the exercise of ordinary prudence, considering the business in which it was engaged, should have known. The defendant complains of the following instruction given by the court:
“The court instructs the jury that damage is said to-be caused by an act of God when it results immediately from a natural cause, without the intervention of man, and could not have been prevented by the exercise of prudence,, diligence and care by the party charged with the liability; and the defendant so charged with the liability, if he invokes the act of God as a defense, has the burden of proof upon him to show, not only that the act of God was the cause but that it was the entire cause of the damage, because it is only when the act of God is the entire cause of damage or loss, and said damage or loss could not have been prevented by the-exercise of prudence, diligence and care by defendant, that the said defendant can avoid liability.”
The language of this instruction is sustained in many decisions and text-books, and is a correct statement of the law when the negligence and the act of God concur in point of time. It is, however, incorrect and misleading in this case, because at the time the defendant negligently omitted to deliver the goods the evidence fails to show that it had any reasonable grounds to apprehend the calamity which overtook defendant and the plaintiff’s goods. The jury’s finding that the negli gence of the defendant, and not the flood, caused the ■damage naturally flowed from this erroneous instruction.
The judgment is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Graves, J.:
Appellant insists that' the trial court committed material and prejudicial error in giving the foregoing instructions. The special vice of instruction No. 10 is its last sentence, which reads: “Proof of an unjustifiable killing is sufficient evidence of malice.” Objection is made to several clauses of instruction No. 11, the principal one being where the court says: “A killing with malice can not be manslaughter.” Several other similar expressions, however, occur in the instruction. It is contended that these instructions, taken together, precluded the jury from finding a verdict of manslaughter in any degree. If “proof of an unjustifiable killing is sufficient evidence of malice,” then, unless the defendant can be acquitted on the ground that the homicide was justifiable, he must be found guilty of murder, because “a killing with malice can not be manslaughter,” and malice exists where the killing can not be justified. We agree with the appellant. The circumstances here shown make the question of malice material and important. The provocation given immediately preceding the fatal shot was serious, and under the law given in instruction No. 11 the jury might well have found that the shooting was done under the influence of passion, rather than malice, if this question had not been taken from them by instruction No. 10. The question of malice in such a case is one of fact, and should be submitted to the jury. Had it been so submitted, the jury would have been amply justified in finding the defendant guilty of manslaughter instead of murder.
Many cases hold that where it is shown that a homicide is committed with a deadly weapon, and no other facts appear, the law will presume malice, and the court may so declare, but the rule is generally held to be otherwise where all the circumstances surrounding the killing are shown, and especially where, as in this case, the killing follows immediately after the accused has received a brutal and violent assault. The authorities are collected upon this subject in volume 21 of the Cyclopedia of Law and Procedure, at page 877.
Instruction No. 20 does not seem subject to serious criticism. When instructions numbered 21 and 22 are read in connection therewith, the law seems to be very fully and clearly stated. In fact, the instructions, taken as a whole, seem to be full, fair, and ably prepared; but the words to which objection is made are too important and serious to be overlooked. We think the appellant is entitled to a new trial.
The judgment is reversed, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Burch, J.:
The only meritorious question presented is whether the declarations of Blackwelder in disparagement of his right, while he still claimed an interest in the property in controversy, were admissible against his assignee. The plaintiff in error makes all the arguments for the exclusion of ordinary hearsay testimony. They do not apply to admissions of this character. The cases are cited which reject such evidence. The weight of reason and of authority is in favor of its admission. The history of the development of the rule and all the vicissitudes, confusions and qualifications surmounted in its final recognition and statement, together with illustrative cases, are set forth in volume 2 of Wigmore on Evidence, sections 1080 et seq., and 1458 et seq., and volume 3 of the same work, section 1780. The subject .need not be gone over again here.
It is claimed that limitations have been placed upon the rule by expressions used in previous decisions of this court. A careful reading of the opinions in the cases cited shows that nothing of the kind was intended or resulted. Thus, in Scheble v. Jordan, 30 Kan. 353, 1 Pac. 121, the excluded declaration was made after transfer of title. In Osborne v. Osborne, 33 Kan. 257, 6 Pac. 271, the statements were not against the interest of the party making them. In Crawford v. Crawford, 60 Kan. 126, 55 Pac. 842, the statements were not against interest, and were mainly mere narrations of ■past occurrences.
In Sumner v. Cook, 12 Kan. 162, the syllabus reads:
“To make a declaration of one from whom a party obtains title to property admissible in evidence against the latter, it must have been made during the time the .Interest in the property was vested in the person making the declaration.”
Whenever possession is an issue the statements of a ■predecessor in title limiting or qualifying his possession can not be used in evidence against one who claims to succeed him in right, unless made while possession ■continued in the party making the statements; but generally declarations against his interest, made by the vendor of real or personal property while by hypothesis title was vested in him, are admissible in evidence against his vendee.
A cause of action was stated against all defendants. The pleadings were broad enough to admit the evidence offered. It rested with Kitchell to plead and prove that he purchased without notice, if he desired to rely upon that defense. Beyond this the court need not inquire into the ultimate rights of the parties.
Other matters argued are unsubstantial. The order «of the district court granting a new trial is affirmed. | [
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Per Curiam:
The plaintiff sued to recover his commission as a real-estate agent employed to find a purchaser for the defendant’s land. The court instructed the jury to return a verdict for the defendant, and the plaintiff prosecutes error. The abstract is barren of any evidence even tending to show that the plaintiff found a purchaser who had the financial ability to buy. Therefore, he failed to make out the case. Each party asked for a peremptory instruction in his favor. Since there was no evidence of a fact indispensable to the plaintiff’s right to recover, the direction of a verdict for the defendant was proper.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Harold Dean Scruggs was convicted by a jury of the offenses of robbery in the first degree and larceny of an automobile. Consecutive statutory sentences were imposed. Mr. Scruggs now appeals.
The alleged robbery occurred at a Quick Shop food store and the auto larceny at the Jim Clark Motor Company, both in Topeka.
Appellant attacks the sufficiency of the evidence to sustain the verdict as to both counts. His principal challenge on the larceny charge is a lack of showing of ownership of the stolen automobile. He relies heavily on the fact no certificate of title for it was produced at trial. The contention borders on the frivolous. We will not detail the evidence except to say ownership of the car in the motor company was shown by the oral testimony of one of its salesmen and its sales manager, as alleged in the information. On Monday morning January 20, 1969, the vehicle was missing from the sales lot where it was supposed to be. Consent to its removal was never given. On the previous Saturday afternoon the particular vehicle had been demonstrated to appellant by a company salesman, and appellant had, under a fictitious name, bargained for its purchase and caused the sales manager to prepare a sales contract for it. Appellant had left with a promise to return when he could make the necessary financial arrangements to complete the transaction. The state’s evidence showed appellant was in possession of the car immediately before and following the January 19th robbery, driving it through several states and in Mexico until March 19, 1969, when he was apprehended in it in Lompoc, California. He had changed the license plates several times; however, the automobile was identified by its serial number as the vehicle missing from the motor company. Meanwhile, the company had surrendered its certificate of title for the vehicle to its insurer in order to recover on the loss. Ownership and lack of consent to the taking were definitely shown.
The state’s evidence showed the following as to the robbery. On January 19, 1969, at a few minutes before the 11:00 p. m. closing hour two men entered the Quick Shop food store at 3339 Adams where a store employee and her husband were present. One of the two men produced a pistol and announced a “stickup”. The husband was told to put his hands on the counter and not to move. One of the bandits ripped out the telephone while the other compelled the employee to put the contents of the cash register into a grocery sack. After telling the employee and her husband to lay on the floor for fifteen minutes the bandits fled with the money. The employee and her husband positively identified appellant as one of the culprits. (It appears the other robber was subsequently killed in an attempted robbery in the state of Washington.)
Additionally, an accomplice, the wife of the other bandit, was granted immunity and testified as a prosecution witness. Her testimony was that on the night in question appellant, while driving the automobile stolen from the Jim Clark company, picked up her husband and herself; their plans were to go either to Canada or California; about 11:00 p. m. appellant drove the car past the Quick Shop store in question and parked it near a church about a block back of the store; appellant and her husband departed toward the store, ostensibly for cigarettes; in a few minutes they returned, running, laughing and talking about the lady being scared and telling her husband not to do anything; the two had a paper sack when they returned; the three immediately drove to Kansas City. The witness also related their subsequent travels in the stolen automobile. Appellant relies on evidence he produced in an effort to impeach this witness; however, evaluation of all the testimony was purely jury work. The prosecution’s evidence amply supported the verdict of guilt as to each count.
Appellant complains that the trial court, without request from anyone, gave the so-called deadlocked jury instruction prior to any deadlock by the jury. The challenged instruction, given at the close of the evidence along with the court’s other instructions, was as follows:
“This case has been exhaustively and carefully tried by both sides and has been submitted to you for decision and verdict. Although under the law a verdict must be unanimous and should be based upon the honest judgment and conviction of each individual juror, and not upon mere acquiescence for the sake of expediency, it is still necessary that you examine the matters submitted to you with the proper regard for, and deference to, the opinion of each other.
“There is no reason to think that a jury better qualified than you would be chosen in the future to try this case. Therefore, each of you should listen to the arguments of the others with an open-mindedness characteristic of a disposition to be convinced by them; if you differ in your views of the evidence, you should all be led by such differences of opinion to scrutinize the evidence more closely and to re-examine more closely the grounds of your opinion.
“In conferring you should lay aside all mere pride of opinion and you should bear in mind that the jury room is no place for espousing and maintaining, in a spirit of controversy, either side of a cause. The aim to be kept in view is the truth as it appears from the evidence, which evidence you must consider with the instructions.”
Its similarity to PIK Instruction 10.20, entitled “Deadlocked Jury”, is readily apparent. Our long-standing concern about the possible coercive impact from the use of such an instruction under certain circumstances (2 Hatcher’s Kansas Digest, rev. ed., Criminal Law, § 160; 4 West’s Kansas Digest, Criminal Law, § 865) eventually culminated in our suggestion in State v. Oswald, 197 Kan. 251, 417 P. 2d 261, that:
“. . . this instruction quite properly could have been given at the time of the original charge. If so given all question with regard to the coercive effect of the same would be removed. The practice of lecturing a jury in a criminal case after it has reported a failure to agree is not to be commended and under circumstances differing from the present case might well be held coercive and erroneous as invading the province of the jury.” (p. 261.)
Obviously when such an instruction is given prior to the commencement of deliberations the inherent danger of coercion is dis sipated, it being addressed not to a minority after a deadlock has been reached but to all jurors alike at the outset. All are charged to consult with one another. No burden of reexamination of view is placed upon a minority. It is appropriate for a trial court to instruct a jury initially as to the nature of its duties in the course of its deliberations. We think that is all the court did here. The instruction given was modified from that found in PIK by eliminating reference to expense of trial and it contains nothing that could be construed as a mandate that a decision be reached. Appellant argues the instruction encourages a juror to abandon his own honest judgment in deference to the opinion of another. We cannot so construe it. It specifically states the verdict “should be based upon the honest judgment and conviction of each individual juror, and not upon mere acquiescence for the sake of expediency”. We approve the instruction (see ABA Standards Relating to Trial by Jury, § 5.4 (a); also Instruction 8.11 of Jury Instructions and Forms For Federal Criminal Cases, 27 FRD 97-98).
Finally, appellant argues he was prevented from having a fair trial because of the actions of a witness in calling to the attention of a juror the fact he was a witness in the case. The matter was fully explored by the trial court upon hearing of appellant’s motion for new trial. Appellant, the witness and the juror testified. The witness* a former bondsman for appellant, was subpoenaed by appellant but apparently did not testify at trial. Appellant’s version was he observed the prospective witness speaking to a juror during a recess but could hear no conversation; he observed the juror wink at the witness and later, when the verdict of guilty was returned, the juror gave him, the appellant, “a real, real, vicious, dirty look”. According to the juror and the witness nothing inappropriate occurred between them; they were acquainted with each other by sight as the witness lived near the parents of the juror’s wife; they had no conversation as to the merits of the case; the witness asked the juror if he was still in the business of hauling hay; in response to a question by the juror as to why he was present at the trial, he replied he was a witness; he talked to appellant immediately after speaking with the juror; facial communications were denied.
Implicit in the trial court’s denial of motion for new trial was a finding of no prejudice to appellant in the contact. Nothing in the record justifies disturbing that finding.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal by five electric public utilities seeking to overturn a Judgment of the district court sustaining an order of the State Corporation Commission (the commission) granting an enlargement of the certificate of authority held by Sunflower Electric Cooperative, Inc. (Sunflower).
In 1958 Sunflower was granted a limited certificate of convenience and authority to transact the business of an electric public utility for the generation and sale of electric energy at wholesale for resale to four consumer cooperatives located in northwest Kansas. These consumer cooperatives are Great Plains Electric Cooperative, Inc., at Colby, Kansas, The Northwest Kansas Electric Cooperative, Inc., at Bird City, Kansas, Norton-Decatur Cooperative Electric Company, Inc., at Norton, Kansas and The Western Cooperative Electric Association, Inc., at WaKeeney, Kansas. They will be referred to as the northern cooperatives. Sunflower was organized by and for the benefit of these four northern consumer cooperatives which it serves with an electric power generating plant at Hill City, Kansas. Construction of the Hill City plant was financed with funds obtained through the Rural Electrification Administration. The plant is operated and maintained under a contract with the Central Kansas Power Company, one of the appellants herein. The contract provides for delivery of the power generated over the Central Kansas Power Company transmission system to delivery points serving the four northern cooperatives.
By 1968, when Sunflower filed the present application for an enlargement of its certificate, Sunflower had extended its sphere of influence to four additional electric consumer cooperatives located in southwest Kansas. These participating members of Sunflower are Wheatland Electric Cooperative, Inc. (Wheatland), located at Scott City, Kansas; Lane-Scott Electric Cooperative, Inc., located at Dighton, Kansas; Victory Electric Cooperative Assn, Inc., located at Dodge City, Kansas and Pioneer Cooperative Association, Inc., located at Ulysses, Kansas. Some of these consumer cooperatives are generating and transmitting electrical power to their members from small power plants owned by them or operated on contract, over transmission systems serving their consumer members.
If the enlarged certificate of convenience and authority is approved Sunflower will take advantage of a $14,000,000 loan available through the Rural Electrification Administration to finance construction of a 94 megawatt electric power plant and related facilities near Garden City, Kansas. The plant will supply wholesale electric power to the four southern cooperatives and to the northern cooperative located at WaKeeney, Kansas. Wheatland, one of Sun ■flower’s southern member cooperatives, has been generating most of its electric power. It has been operating an additional municipal plant for Garden City, Kansas, under a contract. Wheatland is scheduled to assist in the construction and, when the plant is completed, it will operate the 94 megawatt electric power generating plant to be owned by Sunflower at Garden City.
The demand for electric energy upon the eight consumer cooperatives has exceeded their generating capabilities and their present contracted power supplies. The four northern cooperatives have purchased this excess electric power from the Central Kansas Power Company of Hays, Kansas. The southern cooperatives have purchased their excess electric power through Wheatland from the Central Telephone and Utilities Corporation of Great Bend, Kansas.
Central Kansas Power Company and Central Telephone and Utilities Corporation are investor owned utility companies holding overlapping certificates of authority with several of the consumer cooperatives in this area. These two investor owned utility companies purchase their excess electric power from other investor owned utility companies operating further east in Kansas, such as The Kansas Power and Light Company, Empire District Electric Company and Kansas Gas and Electric Company. Together these five investor owned utility companies opposed the application of Sunflower before the commission and carried the commission’s order to the district court for review. They are the appellants herein.
The record, compiled at the hearing before the commission and now before us for review, consists of three volumes containing over 900 pages of exhibits and testimony. The record discloses a power struggle between the electric cooperatives and the investor owned electric utilities spanning a ten year period. Neither the commission nor the courts are concerned in this case with settlement of private controversy apart from the public interest in dependable electric power. The above summary of background material is only a thin backdrop against which the questions raised on appeal can be discussed.
The appellants contend the order of the commission fails to contain essential findings necessary to support the action of the commission. (See Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572 and Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660.) In addition appellants contend that the evidence is wholly insufficient to support the necessary findings, therefore the order is unreasonable and should be set aside.
The order of the commission covers fourteen pages of the record. It is not necessary to set out the entire order. The order follows the form prescribed by the commission in its rules of practice and procedure and contains a summary of the allegations and contentions of the applicant, a summary of the evidence of the applicant, a summary of the evidence of a staff engineer of the commission, a summary of the evidence of the intervenors (appellants herein) together with findings of fact, conclusions of law and the order granting the application.
The findings of fact contain much of the background material previously related in this opinion and describe in detail the electric generating plant and the two electric transmission lines authorized. Copies of twenty-two contracts between the various cooperatives or between the cooperatives and their fuel and excess power suppliers, were attached to the application and are approved for filing by the order of the commission.
Findings 5, 6 and 7, over which much of the controversy centers, read as follows:
“5. There has been a constant growth pattern for demand of electric energy in the area served by Applicant’s participating members and there is need for an additional source of power to serve the area in which said members distribute electric power; that the economic growth of at least portions of the area proposed to be served by Applicant’s generating plan has been deterred by unavailability of sufficient amounts of economical electrical power; that the three major power systems in the area could reduce their bulk power supply costs by a significant amount through increased coordination of planning and operating activities including the establishment of reserve capacity for the area as a whole and by the installation of larger and more efficient generating units. Increased coordination would also provide more rehable service; that Applicant’s plan is an inter-system arrangement to obtain the substantial benefits resulting from planning, construction, and operation of a bulk power supply. Specific advantages include the pooling of generation and transmission facilities and for the common good of all of the pool members. Participation in the installation of larger and more economic units would result in lower power costs which can be obtained by cooperation and by dealing for blocks of power. The Applicant’s plan provides for central dispatching to be performed by Wheatland Electric Cooperative, which will help assure that the most economical source of supply is used at all times. It provides an organization also for the future planning of power supply for Applicant’s members on a coordinated basis; that the construction of a generating unit in the Garden City, Kansas area is in the public interest and will promote public convenience and necessity and that there is a need for the electric generation, transmission and related facilities proposed to be constructed by Sunflower; that the construction of such electric facilities will not duplicate any facilities of any other electric public utility.
“6. That it is in the public interest and that public convenience and necessity will be promoted by the granting to Applicant the certificate sought by its amended application, thereby enabling Applicant to perform and fulfill the contracts with its participating members as hereinafter designated subject to the limitations and restrictions specified herein.
“7. That in order to provide the area with a reliable bulk power supply capable of fully exploiting the generating unit and economic changes of power it is in the public interest and that public convenience and necessity will be promoted by authorizing Sunflower to operate and maintain, and to construct the electric transmission lines and related facilities sought by the amended application for the purpose of furnishing electric power and energy at wholesale for resale to any of its eight present participating members named hereinbefore; that the EL application filed by Sunflower simultaneously with its application herein for approval of the construction of certain proposed electric transmission lines and other facilities which Sunflower proposes to construct at the present time should be numbered EL Application No. 6643, and should be approved.”
Conclusion of law number one reads:
“1. That it is in the public interest and the public convenience and necessity will be promoted by granting to Applicant a limited certificate of convenience and necessity in accordance with the provisions of K. S. A. 66-131, to construct the generating transmission and related facilities described in paragraph 4 of Finding of Fact hereof and to generally transact the business of an electric public utility for the generation, transmission and sale of electric energy at wholesale for resale to Great Plains Electric Cooperative, Inc., Northwest Kansas Electric Cooperative Association, Inc., Norton-Decatur Cooperative Electric Company, Inc., Western Cooperative Electric Association, Inc., Wheatland Electric Cooperative, Inc., Lane-Scott Electric Cooperative, Inc., Victory Electric Cooperative Association, Inc., Pioneer Cooperative Association, Inc., in and only in the certificated areas of these eight cooperatives located in the State of Kansas; that it is in the public interest and the public convenience and necessity will be served and promoted by the approval of the EL application referred to herein and by the approval of each of the agreements described in paragraph 9 of the Findings and Facts herein and die authorization of each of the parties to each of such agreements to perform the objectives provided for in such agreements and tíiat the Applicant should have the right to engage in the planning and the making of such study as the Applicant may consider necessary or appropriate with respect to its system.”
These quoted portions of the commission s order should be all that is essential to understand and discuss the contentions of the appellants. In order to put this appeal in perspective it might be well to review first some of the statutory and case law which governs the judicial review of an administrative order.
The state corporation commission is an administrative agency and its authority and jurisdiction to supervise and control the public utilities in this state is conferred by statute. (See K. S. A. 66-101 and Cities Service Gas Co. v. State Corporation Commission, 197 Kan. 338, 416 P. 2d 736.) Orders of the commission are subject to review by the district court (K. S. A. 66-118c.) and on appeal by the supreme court (K. S. A. 66-118d). The statutory limits of the power of review are set forth in K. S. A. 66-118d as follows:
“. . . Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the original order . . . inquired into and determined, and the district court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable. ...”
The statute ends with the following sentence:
“. . . No court of this state shall have power to set aside, modify or vacate any order or decision of the commission, except as herein provided.”
The need for supervision and control of electric public utilities was recognized by the legislature and by statute the legislature authorized a considerable degree of discretion to be exercised in the public interest. The discretionary authority was delegated to the commission, not to the courts. The power of review does not give the courts authority to substitute their judgment for that of the commission. In reviewing the commission’s order the facts that are considered and the relative weight to be given them in making a decision are matters left to the commission’s discretion unless the commission has acted unlawfully or arbitrarily without supporting evidence. (Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, Syl. § 6, 386 P. 2d 266.) If the order of the commission is based upon substantial and competent evidence the order will generally be considered reasonable.
It may be said that an order of the commission is unreasonable if under all the circumstances it is arbitrary, and unjust. These questions must be determined by the trier of the facts, the commission. It is only when such determination by the trier of the facts is so wide of the mark as to be outside the realm of fair debate that the courts may nullify it. The same is true regarding the informed conclusions of fact made by the commission. (Atchison, T. & S. F. Rly. Co. v. State Corporation Comm., 182 Kan. 603, 322 P. 2d 715.)
The questions to be resolved by the reviewing court are whether the commission has the power to make the order, whether the procedural safeguards are followed and whether there is substantial and competent evidence to support the order. The reviewing court should not inject its own views into a review of the order. The wisdom, propriety or expediency in making such an order are not considerations for the court. (Colorado Interstate Gas Co. v. State Corporation Comm., supra.)
In the present case no serious question has been raised by the appellants concerning the power of the commission to make the order. The questions raised as to procedural safeguards relate to the form and content of the commission’s order and are closely associated with the question of the sufficiency of the evidence to support the order. These will be discussed together.
What are some of the considerations which should enter into determination of what constitutes substantial and competent evidence to support an order granting an enlarged certificate of convenience and authority?
The statute, K. S. A. 1969 Supp. 66-131, provides in part:
“No . . . public utility . . . shall transact business in the state of Kansas until it shall have obtained a certificate from the corporation commission that public convenience will be promoted by the transaction of said business and permitting said applicants to transact the business of a . . . public utility in this state: . .
In the present case questions are raised by the action of the commission in enlarging a certificate, not by the granting of an initial certificate to a public utility.
The commission is generally charged with the supervision and control of public utilities, subject only to statutory exceptions, and an applicant for a certificate must show that public convenience and necessity will be promoted by authorization of the plan for the electric facilities envisioned in the application. Public convenience means the convenience of the public, not the convenience of particular individuals. (Missouri Pacific Rld. Co. v. State Corporation Commission, 192 Kan. 575, 389 P. 2d 813.) Public necessity does not necessarily mean there must be a showing of absolute need. As used, the word “necessity” means a public need without which the public is inconvenienced to the extent of being handicapped. In Atchison, T. & S. F. Rly. Co. v. Public Service Comm., 130 Kan. 777, 288 Pac. 755, it was held:
“The public convenience and necessity or lack thereof is best established by proof of the conditions existing in the territory to be served, and it is the province of the public service commission to draw its own conclusions and form its opinion from the proof of the conditions in the territory. . . .” (Syl. ¶2.)
The statutes authorizing the commission to supervise and control corporate action in the utility field have been generally understood as an expression of the legislature’s administrative policy designed to protect against ruinous competition, to promote adequate and efficient service and to limit the waste attendant on unnecessary duplication of facilities designed for the same purpose in the same area.
In Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097, the above policy was recognized and it was said:
“. . . In determining whether such certificate of convenience should be granted [1] the public convenience ought to be the commission’s primary concern, [2] the interest of public utility companies already serving the territory secondary; and [3] the desires and solicitations of the applicant a relatively minor consideration.” (p. 466.)
It is in this frame of reference that we examine the contents and reasonableness of the commission’s order.
The commission found there was a constant growth pattern of demand for electric energy in the area served by applicant’s participating members. The finding is supported by adequate evidence and is not disputed. The commission found there is a present need for an additional source of power to serve the area in which the western Kansas consumer cooperatives distribute electric power. (There was testimony that several manufacturing plants were unable to obtain electric power for operation of their plants at a cost which was economically feasible.) Appellants attack the findings on the ground they are not basic findings of fact.
In Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572, it was pointed out the commission is not required to state its findings with such minute particularity as would amount to a summation of all the evidence. In view of the 900 page record in this case the reason is obvious. However, the commission does have the responsibility of expressing the basic facts on which it relies. These facts when found and expressed should be adequate to advise the parties, as well as the courts, of the stan dards applied which governed its determination and persuaded it to arrive at its decision. (Kansas Transport Co., Inc. v. State Corporation Commission, 202 Kan. 103, 446 P. 2d 766.)
In addition to the constant growth pattern of demand for electric energy in this area and the finding of a need for an additional source of power to serve the area, the commission set forth the following standards which it applied and which persuaded it to arrive at its decision. Economic growth in portions of this area had been deterred by lack of economical electric power. The plan of applicant could reduce the bulk power supply costs to the consumer cooperatives. The plan could increase coordination among the consumer cooperatives and provide more reliable service to their customers. Specific advantages to these member cooperatives were recognized from pooling facilities and from central dispatching by Wheatland. The commission found the plan provided an organization for future planning of the common power supply and that the construction of the generating unit in the Garden City area was in the public interest in that it would provide the public in that area with needed electric power. Finally the commission found the plan would not duplicate any facilities of any other electric public utility.
We believe that these basic findings are adequate as to form and content to advise the parties, as well as the courts, of the standards applied which governed the commission s determination and persuaded it to arrive at its decision.
Appellants further attack these findings on the ground they are not supported by the testimony. The testimony elicited from the applicant’s witnesses was in direct conflict with the testimony given by the opponents of the plan. Testifying for the applicant were the managers and presidents of the various southern consumer cooperatives and a consulting engineer hired by the applicant to compile the power cost study supporting the plan. In opposition we have the testimony of the presidents of four of the investor owned utilities and of two consulting engineers hired by them. The subjects explored by both sides covered a wide area. These subjects included all matters listed in finding number five of the commission’s order. Special emphasis was directed toward the adequacy of the present sources of electric power, the economic feasibility of the plan and the amount of reduction in power costs to be anticipated under this plan. There was a wide variance in the testimony. For instance, the engineer for the cooperatives testified to a possible saving based upon his power cost study of nearly $8,000,000. On the other hand, the engineers for the opponents testified to a possible increase in power costs by using this same power cost study and discounting various items used by the author in the study.
Nothing can be gained by making a comparison of conflicting testimony. The commission is the trier of the facts. The commission had the expertise through its staff to sift and evaluate this conflicting testimony. It is apparent from the record that all matters bearing upon the plan of Sunflower were thoroughly explored and considered by the commission. We cannot substitute our judgment for that of the commission.
Under the plan approved Sunflower cannot make direct sales to ultimate customers. It may only sell at wholesale to its present participating member cooperatives who resell to the ultimate consumer. Neither Sunflower nor the consumer cooperatives have been granted additional territory. Although it is true the territories of Central Kansas Power Company and of Central Telephone & Utilities Corporation overlap in some areas with these western Kansas cooperatives, this overlapping existed prior to the present application.
The question, therefore, is not one of certifying territory. It is one of administrative policy. Where should the electric energy necessary to supply the demand in the area served by these consumer cooperatives be generated? The investor owned utilities say they can and will furnish adequate economical electric power from large generating plants in eastern Kansas by installing a power loop in the western Kansas area. The electric consumer cooperatives in western Kansas say adequate economical electric power should be furnished locally by installing a large generating plant in the area to be served. The commission is in a better position to evaluate and weigh the factors necessary to reach a proper decision on these questions in the public interest. This they have done.
Several other points raised by the appellants deserve comment.
Some of the appellants, who were intervenors in the hearing before the commission, assert it was error for the commission to refuse their motion for continuance. They insist they needed more time to prepare their defense to the application and to evaluate the power cost study promulgated by fire chief witness for the cooperatives.
Rule 82-1-226 of the rules of practice and procedures of the state corporation commission of Kansas, authorized by K. S. A. 66-106, provides that continuances, extensions of time and adjournments may be requested, and that such requests may be granted or denied by the commission in its discretion. The quality and quantity of the cross-examination of the witnesses for applicant as well as the effectiveness of appellants’ own witnesses disprove any prejudicial error. No abuse of discretion has been shown.
Appellants complain because the commission by its order approved various agreements between the cooperatives. These agreements were attached to the application. Appellants insist the agreements are illegal and should not have been used to support the application. The parties to these agreements did not attack or disaffirm them. K. S. A. 66-108 requires contracts between utilities pertaining to any and all services to be rendered by such public utilities to be filed with the commission. Filing alone is required by the statute. The commission is not the forum to judge the validity or legality of agreements entered into between these cooperatives. In Cities Service Gas Co. v. State Corporation Commission, 197 Kan. 338, 416 P. 2d 736, the rule was succinctly stated:
“. . . The corporation commission provides no forum for the litigation of purely private rights and liabilities.” (p. 342)
Appellants contend they have expended large sums of money in the construction of electric transmission systems to serve this area, and we agree. They further contend that the commission’s order discriminates against the rights of the appellants and takes or destroys their property without just compensation in violation of the constitution of Kansas and of the United States.
Before answering this contention it should be noted that no existing contracts are affected by the order. Any contracts to purchase electric power from the investor owned utilities remain in full force and effect. The rights of the appellants in and to their entire physical facilities remain unchanged. There will be no duplication or overlapping of territories or facilities which did not exist prior to the present order. The loss of revenues from open sales of energy in excess of contracted amounts may result, but this is not a loss of any present property right. The losses will result, if at all, from competition made possible by increasing the generating capabilities of Sunflower.
The function of the commission is administrative in character and the review procedures provided by the statutes are necessarily limited in scope. In determining whether the certificate of authority should be granted the primary concern of the commission, public convenience and necessity, should not be allowed to expand into judicial areas of concern, such as a claim of confiscation of property or of impairment of vested rights. The rule was expressed in Kansas Gas & Electric Co. v. Public Service Co., supra:
“. . . In the granting or withholding of certificates of convenience no justiciable question touching confiscation of property or impairment of vested rights can well arise. . . .” (122 Kan. 462 at p. 468).
We have carefully examined all points raised by the appellants. What has been said disposes of the major points raised and other matters not mentioned are not considered to be determinative of the ultimate question, the reasonableness of the commission’s order.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This appeal is from an order of the trial court denying relief in a proceeding instituted pursuant to K. S. A. 60-1507.
On September 25, 1964, petitioner, William Russell Stewart, entered a plea of guilty to a charge of grand larceny of an automobile. He was sentenced to the Kansas Industrial Reformatory at Hutchinson for a term of not less than five nor more than fifteen years. On his application petitioner was granted probation by the sentencing court.
Under one of the terms of probation, petitioner was allowed to go to the State of Missouri where his probation would be supervised by a Missouri Probation Officer in accordance with the Uni form Act for Out-of-State Parolee Supervision. (K. S. A. 62-2701 to 62-2703 [repealed, L. 1970, Ch. 129, § 22-4604], now K. S. A. 1970 Supp. 22-4101 to 22-4103.)
After an investigation, petitioner’s case was received for supervision by the Missouri Board of Probation and Parole on November 5, 1964.
On December 2, 1964, the Missouri Probation Officer, charged with the supervision of petitioner’s probation, filed a report with the Missouri Board of Probation and Parole. The report recited a number of events in which petitioner was alleged to have been involved and which took place during the month of November 1964. In conclusion the report stated:
“Subject has violated his probation by violation of Condition # 1. He has failed to avoid injurious and vicious habits of associating with undesirables, fighting, stealing, drinking intoxicating liquors and fleeing from an officer of the law.”
The Missouri probation officer recommended that petitioner’s probation be revoked because of the particular violation set out in the report.
On February 4, 1965, the probation officer’s report was approved by the Missouri Board of Probation and Parole and forwarded to Kansas by the Missouri Compact Administrator.
The county attorney prepared and filed a motion for a bench warrant with the report of the Missouri probation officer attached. A bench warrant was issued and petitioner was returned to Kansas.
Counsel was appointed to represent petitioner and after a hearing before the trial court petitioner’s probation was revoked on April 26,1965.
Petitioner made no attempt to appeal from the order of revocation, but commenced a chain of proceedings under 60-1507, supra, which eventally led to this appeal.
On August 20, 1965, petitioner filed his first motion pursuant to 60-1507. The record discloses a series of proceedings concerning petitioner’s first motion and three subsequent motions filed by him, the circumstances surrounding these extended proceedings are immaterial to the issues presented in this appeal.
It will suffice to say that on August 29, 1968, petitioner filed a fourth motion to vacate judgment and sentence pursuant to 60-1507, supra, which was overruled. Petitioner filed a notice of appeal on November 20, 1968. Present counsel was appointed for petitioner on November 21,1968.
On February 17, 1969, petitioner filed a motion asking leave to withdraw his notice of appeal, to amend his motion and for a rehearing on this fourth and last motion to vacate judgment and sentence. Petitioner’s motion was granted and a rehearing was had on June 16, 1969, at which time petitioner was represented by counsel. Petitioner’s motion was overruled and the appeal which is now before this court was finally perfected.
Petitioner makes two contentions in his appeal. First, that he was denied a constitutional right to have counsel at his preliminary hearing and, second, that the state failed to establish violation of the terms of his probation.
With respect to petitioner’s first contention, this court has repeatedly held that under Kansas procedure an indigent accused does not have a constitutional right to counsel at his preliminary hearing, and failure to provide counsel at such time is not error in the absence of a showing of prejudice to the substantial rights of accused. (Ray v. State, 202 Kan. 144, 446 P. 2d 762; Wheeler v. State, 202 Kan. 134, 446 P. 2d 777; State v. McCarther, 196 Kan. 665, 414 P. 2d 59; Cooper v. State, 196 Kan. 421, 411 P. 2d 652.)
In the instant case, the record discloses that when petitioner was before the magistrate his rights were fully explained to him but he did not request the appointment of counsel. There is no indication found in this record of prejudice to petitioner’s rights resulting from absence of counsel before the magistrate. Moreover on arraignment, when represented by counsel, petitioner entered a voluntary plea of guilty to the information. He cannot now object to the lack of or sufficiency of a preliminary hearing. (State v. McCarther, supra; Portis v. State, 195 Kan. 313, 403 P. 2d 959.)
In his brief on appeal petitioner cites the case of Arsenault v. Massachusetts, 393 U. S. 5, 21 L. Ed. 2d 5, 89 S. Ct. 35. In the Arsenault case defendant entered a plea of guilty at his preliminary examination. On arraignment defendant changed his plea to not guilty. Subsequently, evidence of his previous plea of guilty on preliminary examination was injected by the state in the jury trial. In the instant case, petitioner did not enter any plea, nor was he asked for a plea, he merely waived his preliminary hearing. Nothing relating to his preliminary hearing was used against petitioner at his arraignment and there was no jury trial in district court. Because of the clear factual distinction Arsenault is of no benefit to petitioner.
In his second contention on appeal petitioner claims that he is entitled to a review of the revocation of his probation by way of a motion under K. S. A. 60-1507.
In his attack on the order of revocation of probation, petitioner does not claim any infringement of his constitutional rights, nor does the record indicate any basis for such a claim. Petitioner merely asserts the state failed to establish a violation of probation.
Petitioner relies on State v. Nelson, 196 Kan. 592, 412 P. 2d 1018, wherein this court dealt with procedural standards, rules pertaining to the admissibility and sufficiency of evidence, and the exercise of judicial discretion in proceedings to revoke probation under K. S. A. 62-2244 [since repealed], now K. S. A. 1970 Supp. 22-3716. In his brief petitioner argues the state failed to produce sufficient competent evidence to establish a violation of probation in compliance with what he says is required by our opinion in the Nelson case.
Petitioner overlooks the fact that State v. Nelson, supra, was a direct appeal from a trial court’s order of revocation. Here petitioner attempts to collaterally attack the order by way of a motion to vacate sentence under 60-1507.
The scope of the remedy afforded by 60-1507 has been delineated by our Supreme Court Rule No. 121 (c) (203 Kan. xxxix, xl) and the many decisions of this court dealing with the statute and rule since 1964. See cases collected in Vols. 1-3 Hatcher’s Kansas Digest [Rev. Ed. Perm. Supp.], § 349K, subsection “Questions that may he raised”; 5 Vernons Kansas Statutes Annotated, Code of Civil Procedure, 1970 Pocket Parts, § 60-1507, pp. 32-44; Gard, Kansas Code of Civil Procedure, 1970 Cumulative Supp., § 60-1507, pp. 126-131. Perusal of the cases referred to discloses that this court has repeatedly held that a proceeding under K. S. A. 60-1507 is not to be substituted for a direct appeal.
Justiciable questions, which may be presented for determination under 60-1507, are set out in Ware v. State, 198 Kan. 523, 426 P. 2d 78, wherein we held:
“Only questions arising under the Constitution of the United States, oi the Constitution or laws of the state of Kansas, going to the jurisdiction of the district court to impose a lawful and proper sentence upon the petitioner, or which otherwise subject the sentence to collateral attack, may be raised in a proceeding commenced under K. S. A. 60-1507.” (Syl. f 1.)
The procedure provided by 60-1507, as implemented by Rule No. 121, was held to afford an adequate and effective post-conviction remedy when measured by federal constitutional requirements by the United States Court of Appeals in Kinnell v. Crouse, 384 F. 2d 811, (10th Cir. 1967). The court observed that the Kansas postconviction remedy is nearly identical to the federal remedy provided by 28 U. S. C. A. § 2255. Circuit Judge Hill speaking for the court said:
“It is elementary that neither habeas corpus nor § 2255 may be used as a substitute for direct appeals and may be used to collaterally attack a judgment of conviction only when the constitutional rights of the accused are in issue. The same is certainly true of the Kansas post conviction statute.” (p. 813.)
As previously noted, petitioner suggests no constitutional irregularities in the revocation proceedings; he merely seeks a review of the evidence. A proceeding to vacate sentence under 60-1507 is not intended to serve as a vehicle for the review of a collateral proceeding when proposed in the context presented here.
We hold that in the absence of irregularities of constitutional propositions, a proceeding to revoke probation pursuant to 62-2244, supra, is not reviewable by a motion to vacate, set aside or correct a sentence under 60-1507.
For the reasons stated we hold that the trial court did not err in denying the petitioner relief upon the grounds asserted in his motion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal involves the effectiveness of an endorsement to be attached to an insurance policy for the purpose of deleting an item of property from the insurance coverage.
The appeal was first heard in January, 1970, and on March 7, 1970, the opinion affirming the judgment in the lower court was filed. (Shunga Plaza, Inc. v. American Employers’ Ins. Co., 204 Kan. 790, 465 P. 2d 987.)
A rehearing was granted and the case was reargued at the October, 1970, session.
Upon further consideration of the case a majority of the court is now of the opinion that the former decision is incorrect and that the majority opinion, as filed, should be and is hereby withdrawn, vacated and set aside.
The result is that the dissenting opinion of the minority now becomes the controlling opinion of the majority and is hereby adopted as such. We would, however, add a few additional remarks.
We find no fault with the law as expressed in the first four paragraphs of the syllabus but we are now of the opinion that the law as stated in paragraph three has no application to the facts and circumstances of this case.
Although we will look to the former opinion for the facts without repeating them herein, it will be necessary that we set out the endorsement and the letter of transmittal in support of our limited presentation. In the language of the former opinion, an endorsement, standard in form, was mailed by Robert Gucker on behalf of the appellee to Robert J. Bernica, secretary of the appellant, Shunga Plaza, Inc., to be attached to the policy of insurance. The endorsement is too cumbersome to be presented in full. It was headed:
“Endorsement
(To be attached to policy)”
It stated:
“Attached to and forming of Policy No. [ A XX-XXXXX-XX ]
“Effective Date of Endorsement 2-23-66”
The endorsement gave the amount of the return premium — $20.00. The following was typed at the bottom of the printed form:
“In consideration of return premium of $20.00. It is understood and
agreed that item No. 1 is deleted from this policy.
Signed and accepted X_”
Written in the blank space following the X was:
“Shunga Plaza, Inc.
By: Robert J. Bernica”
The endorsement with copies were mailed to Robert J. Bernica with a letter of transmittal, which read:
“Please sign and return all copies where the X is indicated. Please be sure and sign Shunga Plaza, Inc., by you. Please find enclosed a stamped, self addressed envelope and return promptly.
“A check for the return premium will be sent to you when we receive confirmation from company.” (Emphasis supplied.)
In the former opinion we applied the rule that there is no basis for construction where the language of a contract is clear and unambiguous and where a contract is not ambiguous it is the function of a court to enforce it as made. This was the language contained in paragraph three of the syllabus in the former opinion which we now hold not to be applicable.
Although the endorsement does not state when the “return premium” of $20.00 would be paid, it cannot be said that the endorsement is incomplete or ambiguous as the law will imply payment within a reasonable time. (Leis v. Sinclair, 67 Kan. 748, 74 Pac. 261; 17A C. J. S., Contracts, § 482, p. 682.) However, the endorsement being silent as to the method, time and terms the “consideration of a return premium of $20.00” was to be paid, the letter transmitting the endorsement having definitely fixed the method, time and terms of the payment, the necessity for an implication is eliminated. The time and condition of payment becomes definitely fixed by the letter of transmittal.
The letter of transmittal makes it quite clear that the agent did not have authority to approve the endorsement but the approval must come from his company.
The letter stated that “a check for the return premium will be sent to you when we receive confirmation from company.” Confirmation of what? It had to mean either the confirmation of the endorsement or the “return premium” or both. If there was no confirmation by the company, the consideration mentioned in the endorsement failed. The check would not be mailed until there was confirmation by the company.
This court has never passed on the effect of a covering or transmittal letter. However, we see no reason why it should not have the same force and effect as any other annexed writing where it is bound to come to the attention of the party.
We find the following statement in Corpus Juris Secundum:
“Where a contract is made by correspondence, the intent of the parties is to be gathered from the whole thereof. So, where the parties by correspondence agree to a change in a prior written contract, the agreement will be gathered from the written contract and the correspondence considered as a whole.
“. . . Thus, a memorandum on a written contract qualifying or restraining its operation, or indorsed thereon contemporaneously with the execution of the instrument, forms a part of the contract and binds the parties to the same extent as though it had been embodied in the instrument.” (17A C. J. S., Contracts, § 298, p. 135.)
Again in 17A C. J. S., Contracts, § 299, p. 136, it is stated:
“Writings which are made a part of a contract by annexation or reference will be so construed; so, it is a general rule that where a contract refers to, and incorporates the provisions of, another instrument, they shall be construed together.
“Where, however, the reference to another writing is made for a particular and specified purpose, such other writing becomes a part of the contract only for such specified purpose and to the extent of die reference.”
The effect of two contemporaneous writings was considered in Rodriguez v. Secretary of Treasury of Puerto Rico, 276 F. 2d 344, where it was stated:
“. . . Where an offeror presents two contemporaneous writings, even though one is formal and complete on its face, and the other informal, the offer is both. The other party is free to reject both. But it cannot accept the one, and disregard the other. Bond v. Wiegardt, 1950, 36 Wash. 2d 41, 216 P. 2d 196; V-l Oil Co. v. Anchor Petroleum Co., 1959, 8 Utah 2d 349, 334 P. 2d 760. . . .” (p. 349.)
We find the rule stated where there are two contemporaneous writings but one is silent as to a particular provision:
“. . . Moreover it is a settled rule that documents executed at the same time, with one referring to the other, are to be construed as a single instrument. (Civ. Code, § 1642; 12 Cal. Jur. 2d, § 123, p. 333.) Of course, the express promise of the one instrument must prevail over the silence of the other. . . .” (Cheminol Corp. v. Ohlsson, 133 C. A. 2d 223, 228, 283 P. 2d 773.)
A covering or transmittal letter may have the effect of delaying or staying the operation of a contract and knowledge of its contents cannot be disclaimed.
In Gateway Company, Inc. v. Charlotte Theatres, Inc., 297 F. 2d 483, it was said:
“. . . But the covering letter creates a more serious problem. Valley could not disclaim knowledge of its contents. A covering letter may be part of the total agreement. Rodriguez v. Secretary of the Treasury of Puerto Rico, 1 Cir., 1960, 276 F. 2d 344. The advice of Wm. Randolph Hearst, ‘Throw [it] in the wastebasket. Every letter answers itself in a couple of weeks,’ Koenigsberg, King News, 273 (1941), is not a safe legal principle.” (p. 486. Emphasis supplied.)
We are inclined to believe that the “effective date” mentioned in the endorsement referred to the date as of which the endorsement would be effective after it was confirmed by the company. As there was no check received by the insured, and no notice of confirmation, the policy of insurance remained in full force and effect.
An insurance company cannot wait until a building is destroyed and then confirm an endorsement deleting the item of property from coverage under the policy.
The judgment of the district court is reversed with instructions to render judgment for the plaintiff in the amount due under the original insurance policy covering the building at 1122 Van Burén, Topeka, Kansas.
APPROVED BY THE COURT.
Price, C. J., dissenting. | [
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The opinion of the court was delivered by
Benson, J.:
The petitioner was sentenced upon his plea of guilty of maintaining a common nuisance in violation of an ordinance of the city of Wichita. The sentence, pronounced September 10, was as follows:
“It is therefore adjudged by the court that the defendant, George A. Murphy, pay unto the city of Wichita a fine in the sum of one hundred dollars, and that he be imprisoned in the city jail for the period of thirty days and until such fine and the costs of this action are paid.
“It is further ordered that the said defendant be allowed to go upon his own recognizance until order of commitment is issued herein. It is further adjudged by the court that the intoxicating liquors seized upon the search and seizure warrant issued herein and described in the return of said warrant as herein set out be forfeited, and such intoxicating liquors are hereby forfeited and ordered destroyed.”
On October 3 a commitment was issued, reciting the judgment and containing the following order:
“Now, therefore, this is to command you to take and commit the said defendant, George A. Murphy, to the city jail of said city of Wichita for such time as is by said judgment and sentence of the court ordered and decreed.”
The petitioner was released from custody on this writ of habeas corpus on October 4, upon bond, pending the hearing in this matter. He bases his right to a discharge from imprisonment upon the following grounds: (1) That the sentence was so indefinite as to be-void; (2) that imprisonment for thirty days from October 3 is not authorized by the judgment; and (3) that at the time the writ was returned, October 14, the period fixed for imprisonment had expired.
The statute governing procedure before justices in criminal trials provides that a judgment of conviction shall be executed by virtue of a warrant reciting the judgment and commanding the officer to execute it (Justices’ Crim. Code, § 19)., and this provision is made applicable to proceedings in the police court of cities of the first class (Gen. Stat. 1901, § 807). The commitment is the authority for holding the prisoner, and in the regular course of procedure precedes the imprisonment. The notation in the judgment, so far as it implied that such a commitment should be issued, only stated upon the docket what would have been implied had the statement been omitted. The provision that the defendant might go upon his recognizance until the commitment should be issued does not necessarily mean that he shall thus be released for an unreasonable time, or beyond the thirty days, só as to entail upon the defendant the hardships referred to in the opinion in In re Strickler, Petitioner, 51 Kan. 700, 33 Pac. 620. It was there said:
“It will be observed that the attempt to carry this sentence into effect was made after the expiration of ninety days from the date of the sentence, and the question here presented is whether the district court could lawfully sentence the defendant to imprisonment in the county jail, and then suspend its execution, to be enforced at some future time on the happening of a contingency named in the judgment.” (Page 701.)
In that case the petitioner was first committed to jail after the expiration of the time named in the sentence; here the commitment was issued and the petitioner imprisoned before the time prescribed in the sentence had expired. If that period began at the date of the sentence, as claimed, the effect of delay in issuing the commitment would be to shorten the term of actual confinement. The question whether the petitioner can be lawfully held beyond that time is not presented in this record, for he was not so held when this proceeding was begun. We conclude that the sentence was not Void, and that the police judge had not lost his authority to issue the writ at the time it was placed in the Lands of the officer. "
The claim that the petitioner can not be remanded because the return was made after thirty days from the date of the sentence had elapsed' can not be sanctioned. None of the time during which he was allowed his liberty pending this hearing can be considered as part of the period of confinement under the sentence.
The petitioner is remanded. | [
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The opinion of the court was delivered by
Mason, J.:
Charles Wortman was convicted upon a charge of stealing harness in the night-time, and appeals. The statute reads:
“Every person who shall be convicted of feloniously stealing, taking or carrying away ... in the night-time any domestic fowls, harness, or saddles, belonging to another, shall be deemed guilty of grand larceny.” (Laws 1903, ch. 218, § 1.)
In the information and evidence the stolen property was described as certain enumerated straps and buckles, referred to as pieces of harness, not including any bridle, collar or traces. The defendant insists that the offense created by the part of the statute here involved can only be coifimitted by taking a substantially complete harness, that is, all of the equipment used (or adapted for use) upon a single draft animal or upon a team — what is sometimes called a “set” of harness. We think, however, that the legislature employed the phrase “any . . . harness” as descriptive of the class of articles forming the gear by which a vehicle is drawn, as it might have covered all wearing apparel by the use of the phrase “any clothing.” The purpose. of the act was to give additional protection to certain' kinds of property by making the theft thereof at night a felony, regardless of value. The gravity of the offense is fixed by the hour of its commission and by the character of the thing taken — not by its quantity. To suppose that the nocturnal theft of material properly described as harness was not to be a felony unless enough were taken to make a complete assortment would be so inconsistent with the manifest intention of the new act that such a construction would only be justified if the language employed affirmatively so 'indicated — for instance, by denouncing in terms the theft of “a harness.”
The defendant also asserts that there was no evidence that the stolen property was taken in the nighttime. The owner testified that it was in its usual place after dark on March 19, 1907, and was missed about half past six or seven o’clock on the next morning. If anything further was necessary it was supplied by the statement of another witness that some kind of a disturbance was heard about the premises during the night. The time of the commission of an offense, when material, is ordinarily shown by circumstantial evidence. (6 Cyc. 243.)
Error is assigned on account of the failure of the court to give instructions as to where the line between day and night was to be drawn, and as to the state’s obligation to prove beyond reasonable doubt that the stolen property was taken at night. No specific instructions were asked, and, at least in the absence of such a request, there was no occasion of any mention of the first matter, and the second was sufficiently covered by the general charge.
The final complaint is based upon the giving of this instruction:
“Should you find from the evidence that the defendant voluntarily and deliberately confessed his guilt of the theft of the harness alleged to have been stolen in the information, such confession, if made under the circumstances I have indicated, furnishes evidence of the highest character against him. But it is for you to say, as a question of fact, whether or not the defendant voluntarily and deliberately confessed the taking of said harness, and if you should find from the evidence that the defendant made such confession you may properly consider the time, place and circumstances under which such confession was made, and all the attending circumstances, for the purpose of determining what weight you should give to such confession, in case you find a confession was in fact made, as above indicated in this instruction.”
There is no room for doubt that a confession delib- • erately and voluntarily made is in fact evidence of the highest character against the person making it. The expressions of opinion to the contrary are well explained by Professor Wigmore in a full discussion of the subject, the substance of which appears from these excerpts:
“There exists a decided conflict of opinion, at first sight inexplicable, as to the evidential value of confessions. ’On the one hand, we find writers and judges of wide experience affirming the slender value of confessions and urging the greatest caution in their use. . . . On the other hand, we find persons of equal authority offering [affirming] in equally positive and unqualified language, that confessions are the highest kind of evidence. There must be some key to this conflict. . . . The real explanation lies in the mixture of good and bad qualities likely to be present in all attempts to use confessions. We must separate (1) the confession as a proved fact, from (2) the process of proving an alleged confession. (1) Now, assuming the making of a confession to be a completely proved fact— its authenticity beyond question and conceded, then it is certainly true that we have before us the highest sort of evidence. The confession of a crime is usually as much against a man’s permanent interests as anything well can be; and, in Mr. Starkie’s phrase, no innocent man can be supposed ordinarily to be willing to risk life, liberty or property by a false confession. Assuming the confession as an undoubted fact, it carries a persuasion which nothing else does, because a fundamental instinct of human nature teaches each one of us its significance. (2) But how do we get to believe in the fact of a confession having been made ? Always and necessarily by somebody’s testimony. And what is our experience of that sort of testimony on which we are asked to believe that a confession was made? A varying and sometimes discouraging experience. Paid informers, treacherous associates, angry victims, and overzealous officers of the law — these are the persons through whom an alleged confession is often, perhaps oftenest, presented; and it is at this stage that our suspicions are aroused and our caution stimulated. . . . We are ready enough to trust the confession if there really was one, but we are going to doubt and suspect for a long time before we accept it as a fact. . . . This seems to be the simple explanation of the apparently contradictory views; if we distinguish the confession as evidence from the evidence of the confession, we find that few have ever really doubted that the first is in itself of the highest value, while the second is always to be suspected.” (1 Wig. Ev. § 866.)
But it is argued that to pick out any particular item, of evidence and characterize it as entitled to special consideration is to invade the province of the jury, and that such an instruction as that complained of is objec tionable on that account. Decisions in Texas and Mississippi go to that extent, but they are based upon statutes forbidding the trial court to express an opinion upon the weight of the evidence. (Morrison v. The State, 41 Tex. 516; Thompson v. State, 73 Miss. 584, 19 South. 204.) On the other hand it has been held that the giving of substantially such an instruction is not material error. (Welsh v. The State, 96 Ala. 92, 11 South. 450; Hester v. The State, 17 Ga. 146; State v. Brown, 48 Iowa, 382.) The case of Martin v. The Town of Algona, 40 Iowa, 390, is somewhat similar to the one last cited. It is criticised as going to the border line, but not disapproved, in State v. Willing, 129 Iowa, 72, 105 N. W. 355, where this language was used:
“The court, instructing the jury upon the matter of alleged admissions by the defendant, said to them that if such admissions were shown to have been understandingly made, and to have been correctly remembered by the witnesses, and substantially repeated by them on the witness-stand, they were ‘entitled to great weight.’ In so doing we think the court inadvertently trenched upon the domain of the jury. The admissibility in evidence of any given fact or circumstance having been determined by the court, it is for the jury alone to determine whether it shall be given great or little weight.” (Page 75.)
A statement made by the judge may be logically sound and yet tend unduly to influence the jury by giving too much prominence to some particular feature of the evidence. But we do not think that situation is presented here. What was said in the charge about the probative value of a voluntary confession was unquestionably true,, although the rule announced was perhaps one of common sense rather than of positive law — of persuasive rather than of compelling force. But the jury were explicitly told that it was for them to determine what weight should be given to the evidence on this subject. Plainly no substantial prejudice resulted to the defendant.
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Per Curiam:
Appellant was convicted of the larceny of a hog. It is conceded that there was no error in the court’s rulings or in the instructions, and the only ground urged for a reversal is that the evidence was insufficient to identify the property stolen or to connect the appellant with the offense. We have carefully examined the record, and in our opinion there was no lack of evidence to identify the butchered animal with the one stolen. While the evidence connecting the appellant with the crime was wholly circumstantial, we think it fully warranted the verdict of the jury and the judgment rendered thereon. The judgment is affirmed. | [
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Per Curiam:
The written agreement involved in these cases no more creates a trust than would a promissory note. There was no intention of a trust, no expression of a trust, no fiduciary or confidential relation between the parties, and no circumstances out of which a trust could have resulted or be implied. It is an ordinary express promise to do a specific thing, made by a man to his adversary. The authorities cited by the plaintiff are all distinguishable upon well-understood principles. After the agreement was made nothing occurred to change the relations of the parties. Simple non-fulfilment of the contract did not convert the promisor into a trustee. He merely continued to be liable in an action on the contract, and the promisee gained no rights by failing to sue. The subsequent letters did not change the legal relation of obligor and obligee in any particular. They tolled the statute of limitations, and that is all. There was no promise to make a will, and if the plaintiff relied upon the expressions used as a promise to that effect he merely deceived himself. The statute of limitations has run against the demand, and the demurrers to the petitions were rightfully sustained on that ground. Besides this, the very unusual and even extraordinary state of facts presented in these cases would lead the court to" invoke the doctrine of laches, if the situation of the parties was such that the statute of limitations did not properly bar recovery. The judgment in each case is affirmed.
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The opinion of the court was delivered by
Graves, J.:
This action was commenced in the district court of Allen county by Lucinda Baker to recover damages sustained by her when alighting from a street-car in the city of Iola. She recovered a judgment against the receiver of the Iola Electric Railroad Company, and he prosecutes error.
The first error assigned is that the district court did not acquire jurisdiction of the receiver, for the reason that he was not properly served with process. The summons issued was in due form; the return thereon reads:
“State of Kansas, Allen County, ss.:
“Received this writ this 30th day of October, 1905, and, as commanded therein, I served the same upon the following persons of the defendants, within named, by delivering to each of said defendants, personally, a true and certified copy of the within summons, with all the indorsements thereon, at the time following, to wit: Otto S. Heberling, who was at the time of such service-the general manager, and in control, of the Iola Electric Railroad and its property under said defendant O. J. Peterson, receiver of said railroad, said receiver, O. J. Peterson, not being found in my county, said Otto S. Heberling being then and there in charge- of the general office of such receivership, at Iola, in said county, and said Iola Electric Railroad being located wholly within said county.”
A motion to set aside this service was duly filed by the receiver, appearing specially therefor,, and was denied.
On March 3, 1887, congress provided that receivers-for corporations in actions pending in the federal courts could be sued in the state courts without first obtaining leave of the court wherein the receiver was. appointed. Sections 2 and 3 of the act read:
“That whenever in any cause pending in any court, of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in which such property shall be situated in the same manner the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall wilfully violate the provisions of this section shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine not exceeding $3000, or by imprisonment not exceeding one year, or by both such punishments, in the discretion of the court.
“That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice.”’ (24 U. S. Stat. at L., p. 554.)
These sections were reenacted as a part of chapter-866 of volume 25 of the United States Statutes at. Large, page 436, August 13, 1888. By this statute receivers were placed upon the same plane, with respect to the service of process, as the corporations whose-property they controlled. (Central Trust Co. of New York v. St. Louis, A. & T. Ry. Co., 40 Fed. 426; Eddy v. Lafayette, 163 U. S. 456, 16 Sup. Ct. 1082, 41 L. Ed. 225.) It follows that the district court acquired jurisdiction of the receiver if he was properly served under the laws of this state. The statute upon this subject is section 68 of the civil code, which reads:
“A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof.”
It seems that under this statute the return shows good service upon the receiver and the court was justified in denying the motion to set it aside. Service was made in Iola, Allen county, at the receiver’s general office in that county, by leaving a copy of the summons with the receiver’s general manager, who was then in charge of the office and in control of the electric railroad in the hands of the receiver. This was sufficient.
After the motion to set aside the service was denied a motion to dismiss was filed, based upon the ground that the receiver had been, since the' suit was commenced, discharged by the federal court which had appointed him, and that his powers thereby ceased. It appears from the action of the federal court in this matter, that the road was taken out of the hands of the receiver and restored to the company; that this case, with others then pending in the state courts against the receiver, was turned over to the company to defend; :and that the corporation was ordered to save the receiver harmless from any judgment which might be •entered against him in such cases, and, in case of failure to do so, the property was to be held responsible therefor. The order evidently contemplated a continuance of the suit in the name of the receiver. We are unable to say that the court erred in denying the motion to dismiss.
The court refused three instructions requested by the receiver. The first directed a verdict for the defendant. This was clearly incorrect and need not be considered further. The second one reads:
“If you believe from the evidence that the place where the car in question stopped just before plaintiff attempted to alight therefrom was not a regular stopping place, but a ‘call stop’ only, and that plaintiff did not inform the conductor or motor-man of said car that she wished to alight at said place, you would not be warranted in finding the defendant guilty of negligence in causing said car to be started ahead while plaintiff was attempting to^ alight therefrom, unless you further believe from the evidence that the conductor or motor man of said car saw or knew that she was intending or attempting to do so at the time said conductor signaled his motor-man to proceed with his car.”
This instruction was given in substance, but was modified by another which reads:
“If the conductor of the car on which the plaintiff was a passenger saw the plaintiff at the time she was alighting from the car or by the exercise of ordinary care in performing his duties as such conductor could have seen her, then it was his duty to hold his car until she had alighted; and under such circumstances, if he did signal the motor-man to start the car while the plaintiff was alighting, such act was negligence on his part.”
The instruction, as thus modified, applied directly to the facts of the case, and we can not say that the court erred in refusing to give the one requested, without modification. The third instruction requested reads:
“If you find from the evidence that at the time plaintiff was leaving the car and at the time she alighted therefrom said car was in motion, and that she took hold of the hand-rail at the rear of the vestibule, and at the time she alighted from the car she still retained hold of said hand-rail, and that, while so holding to said hand-rail, her face was toward the rear of the car, in a direction opposite from the conductor, and in such direction that she could not see the conductor or any signal which he gave, and, while she was in such position, with the car in motion, she did alight therefrom, and the jury believe that the position plaintiff then took and was then in had anything to do with or in any way contributed to plaintiff’s fall which she received at the time, then plaintiff can not recover in this action, and your verdict should be for the defendant.”
This instruction groups the facts in the case supposed to bear upon the question of contributory negligence. It is a form of instruction not to be encouraged. It is calculated to mislead the jury, and does not harmonize with the recognized distinction between the functions of the court and the jury in the determina tion of questions of fact. An instruction which gives the rules of law applicable to the facts shown in the case, leaving the jury to make the application, is preferable. The instruction given by the court upon this subject seems quite clear and fully covers the case. The materiality of the instruction requested was destroyed, however, by the special findings of the jury, as the facts stated therein were found not to have contributed to the injury. No error, therefore, can be predicated upon the action of the court.
Objection is made to an instruction given to the jury by the court which reads:
“You are further instructed that the plaintiff can not recover, notwithstanding there may have been negligence on the part of the defendant or his agents or employees which may have contributed to the accident, if she, by the want of ordinary care and prudence, as defined in these instructions, and by her own voluntary acts, so far herself contributed to the accident that but for this fact it would not have happened.”
The last clause of the closing sentence constitutes the objectionable feature. It is insisted that the law here stated relieves the plaintiff of responsibility for contributory negligence unless such negligence causes the injury, while the true rule is contended to be that negligence of the plaintiff, however slight or remote, if it contributes in any degree to the injury, will relieve the defendant of liability. The instruction given is sustained by an abundance of authority. In volume 7 of the American and English Encyclopaedia of Law, at page 373, .the author of the article on “Contributory Negligence” uses a similar expression in the definition of that phrase. (See, also, 1 Thomp., Com. Law of Neg., § 221.) The same rule has long been followed in this state. In the case of Pacific Rld. Co. v. Houts, 12 Kan. 328, the defendant requested the court to instruct the jury that if the plaintiff was guilty of negligence which contributed even in the slightest degree to the injury he could not recover. This was refused and the refusal assigned as error. Mr. Justice Brewer, in the opinion of the court, said that the instruction requested was manifestly incorrect and declined to consider it in detail. (See, also, U. P. R. W. Co. v. Rollins, 5 Kan. 167; Sawyer v. Sauer, 10 Kan. 466; W. & W. Rld. Co. v. Davis, 37 Kan. 743, 16 Pac. 78, 1 Am. St. Rep. 275; U. P. Rly. Co. v. Henry, 36 Kan. 565, 14 Pac. 1.) In the case of Railroad Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506, the court held:
“One who by his negligence has brought an injury upon himself can not recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such case is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such case is (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or (2) whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution that but for such negligence or want of care and caution on his part the misfortune would not have happened.
“In the former case, the plaintiff is entitled to recover. In the latter he is not.” (Page 442.)
It is needless to consider here whether the instruction is accurate in its statement of the law or not, as the findings of the jury show that plaintiff’s conduct did not contribute to the injury, either wholly or partially. The jury returned special findings of fact with their general verdict which read:
“(1) Ques. Where did the plaintiff get on defendant’s car from which she attempted to alight at the time she received the injuries complained of in this action? Ans. La Harpe.
“ (2) Q. Was Mr. Reaser the conductor of said car at the time of the alleged injuries to the plaintiff? A. Yes.
“ (3) Q. Was said car west bound at said time? A. Yes.
“(4) Q. Was the intersection of Washington and Madison avenues in Iola one of the regular stopping places of defendant’s cars, or a ‘call stop’ only? A. Call stop.
“(5) Q. What was the length of said car? A. Fifty-one feet.
“(6) Q. Was said car stopped as it approached, or was rounding the curve from, Madison avenue into Washington avenue in the city of Iola, and just before plaintiff attempted to alight therefrom? A. Stopped on curve.
“(7) Q. State how many passengers were aboard said car when it stopped, if it did stop. A. About six persons.
“(8) Q. If you answer question No. 6 affirmatively, state in what part of said car plaintiff was when it stopped and how far from the rear end thereof. A. Second seat from sand-box on north side of car.
“(9) Q. If you answer that said car stopped, state how long it remained standing there. A. From one to two minutes.
“ (10) Q. Did conductor Reaser leave said car at the time, or immediately after, it stopped, for the purpose of taking supper to the motor-man of the Bassett car standing on another track west of said car? A. Yes.
“(11) Q. If you answer the last preceding question affirmatively, state whether or not conductor Reaser, after delivering motor-man Forney’s supper, signaled or told the motor-man of his own car to move ahead; and, if so, was the signal obeyed? A. Yes.
“ (12) Q. If you find that conductor Reaser signaled his motor-man to proceed, state how far the conductor was from the side of his own car when he signaled his motor-man to proceed, if he did. A. From ten to fifteen feet.
“ (13) Q. What was the destination of the other passengers, aside from plaintiff, if any, who were aboard said car in question when it stopped, just before plaintiff attempted to alight therefrom, if it did? A. No evidence.
“(14) Q. How far away, and in what direction, from said last-mentioned car was motor-man Forney when conductor Reaser delivered his supper? A. About one hundred feet to the southwest.
“(15) Q. Did said plaintiff attempt to alight from said car in question while it was on said curve? A. Yes.
“(16) Q. If you find that conductor Reaser signaled his motor-man to proceed, state how far the conductor was from the front end, and toward the rear, of his. own car when he gave the signal. A. About seventeen, feet from front end.
“(17) Q. Did the other passengers, if any, on said car, as it approached Washington avenue, alight therefrom at or about the time it stopped and before the plaintiff attempted to alight? A. Yes.
“(18) Q. If you answer question No. 17 affirmatively, then state‘how many, and on which side of the car. A. About four or five, on south side.
“(19) Q. Where was plaintiff on said car in question when it first began to move in obedience to conductor Reaser’s signal, if he gave any? A. Plaintiff was on last step.
“(20) Q. Did conductor Reaser know that plaintiff was attempting to alight from said car when he signaled his motor-man to move his car ahead ? A. No.
“(21) Q. In attempting to alight from the car in. question did plaintiff take hold of the outside rear handrail? A. Yes.
“(22) Q. If you answer question No. 21 affirmatively, then state whether she continued to hold to the-hand-rail after alighting. A. No.
“(23) Q. Whereabouts on the car in question was-plaintiff when conductor Reaser signaled his motorman to proceed with his car, if he did? A. No evidence.
“ (24) Q. Did conductor Reaser look to see whether any passengers were alighting from said car at or just before signaling his motor-man to move said car ahead ?' A. Evidence not sufficient whether he did or did not look.
“ (25) Q. Did the motor-man of said car, at the time' or before he started it ahead in obedience to the conductor’s signal, if he did, know that plaintiff was about to alight therefrom ? A. No.
“(26) Q. On what part of said car was the motorman’s post of duty at said time? A. Front end.
“ (27) Q. Was the motor-man at his post of duty at said time? A. Yes.
“ (28) Q. If you find for the plaintiff, do you find for her on the ground that the motor-man of said car failed to observe that she was about to alight therefrom at the time he started his car ahead? A. No.
“(29) Q. Did conductor Reaser, after signaling his motor-man to move the car in question ahead, see plaintiff alighting therefrom before she fell to the pavement, if she did? A. He saw her as she was falling.
“(30) Q. If you answer question No. 29 affirmatively, state whether there was time to stop said car after he saw her and before she fell. A. No.
“(31) Q. Did the plaintiff at any time inform the conductor or motor-man of the car in question that she wanted to alight at the place where she attempted to do so?' A. No.
“(32) Q. Was the plaintiff, in attempting to alight from the car in question, getting off backward, or with her back toward the front and her face toward the rear of said car? A. Plaintiff’s back toward front end of car.
“(33) Q. If you answer question No. 32 affirmatively, state whether her acts in that respect were careless, and partially or wholly caused her to fall. A. No.'
“(34) Q. Was the plaintiff holding onto the handrail at the corner of the body of the car with her right hand while attempting to alight? A. No.
“(35) Q. Was plaintiff’s face, at the time she was on the steps of the car, just immediately before she alighted therefrom, toward the east or southeast? A. Yes.
“ (36) Q. Was plaintiff’s face, at the time she was on the steps of the car, just immediately before she alighted therefrom, in such position she could not see conductor Reaser ? A. Yes.
“(37) Q. At the time plaintiff attempted to alight from the car did she know that the car was then in motion? A. She did.
“(38) Q. At the time plaintiff attempted to alight from the car, did she know the conductor was not on the car? A. She knew he was not.
“(39) Q. When not engaged in collecting fares while the car is in motion where is the conductor’s place to stay on the car? A. Rear end.
“(40) Q. Did plaintiff give any signal or do anything to notify the motor-man she desired to alight, after the car started, at the place where she was injured? A. No.
“(41) Q. Did the plaintiff ask any one to signal the motor-man to stop the car just before she was injured? A. No.
“(42) Q. If you’answer question No. 35 in the af firmative, then did the position of plaintiff on the steps of the car, just prior to her alighting and when she attempted to alight, prevent plaintiff from being able to avoid the fall? A. No.”
The defendant requested the court to require the jury to answer findings numbered 23 and 24 more definitely, which was refused, and this is assigned as being erroneous. In view of the other findings of fact, numbers 23 and 24 do not seem to be very important. The physical fact, found by finding No. 19, that when the car began to move the plaintiff was “on the last step” indicates quite clearly that she was on the car engaged in the act of getting off, and was visible when the signal was given. Several passengers besides the plaintiff got off of the car at that place, which was sufficient to call the attention of the conductor to the fact that passengers were leaving the car. It was his duty, before causing the car to move, to know whether passengers were in a position to be hurt thereby or not. He should have been where he could see. A conductor may not say, “I did not, or could not, see when I caused the car to move.” It was his duty to see. The jury could not have answered these special questions so as to relieve the conductor from negligence: If he was where he could not see, it was negligence to be there; if where he could see, it was negligence not to know.
The plaintiff did not begin to alight while the car was in motion, for she was just in the act of stepping off when it began to move. It can not be said, therefore, that any answer to these questions which would have been justified by the evidence could have affected the question either of the negligence of the defendant or of the contributory negligence of the plaintiff.
. We are unable to find that the court committed material error in any of the matters presented, and the judgment is therefore affirmed. | [
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Per Curiam:
R. L. Comeaux entered into a contract with John H. West and D. C. Barnes to purchase a hotel property, for which he was to make payments in certain instalments at specified times. He obtained possession of the property, but failed to make the payments or to comply with the conditions of the purchase. West and Barnes began this proceeding to cancel the contract and to recover possession of the property, and they finally secured a judgment to that effect. It was decreed that if possession was not surrendered within three days execution should issue directing the sheriff to evict the defendants and put plaintiffs in possession of the property. Within a few days after the judgment was rendered the defendants surrendered the possession of the premises in accordance with the decree, but they are here insisting on a review of the judgment with which they have complied. The plaintiffs’ motion to dismiss the proceeding in error because of the voluntary surrender of the possession and the compliance with the judgment must be allowed; The recovery of possession, because of non-compliance with the contract which was canceled, was the important thing in litigation, and when the defendants voluntarily surrendered possession they necessarily waived the right to prosecute error. The fact -that the decree ordered restitution and that an execution for that purpose was authorized but had not been issued does not amount to duress nor avoid the effect of the waiver consequent upon the compliance with the judgment.
The proceeding is dismissed. | [
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The opinion of the court was delivered by
Porter, J.:
It is the contention of plaintiffs in error that the trust created by the deed is an executory one, and conveyed no present interest to the donees; that the latter took nothing by the deed until the death of Mrs. Miles and the conveyances by the trustee after her death; and that the conveyance was subject to revocation during her lifetime. For these reasons it is insisted that the trust is void. It is well settled that courts of equity will enforce a perfect or executed trust, though voluntary, but will lend no assistance in enforcing an agreement to create a trust which remains executory. The authorities cited with respect to gifts inter vivos and causa mortis, as well as those which define the necessary elements of a gift generally, have very little application to a trust deed. A gift to be executed requires delivery, while a voluntary trust is executed by declaration. The important difference is aptly stated in Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840, in the following language:
“The creation of a trust is but the gift of the equitable interest. But on account of the difference in the form and purposes of the two transactions, it necessarily follows that different acts are essential in the two cases. While delivery and a surrender of all present and future dominion over the property given is, absolutely necessary in a gift, these would be inconsistent with the very purposes of a trust.” (Page 150.)
An executory trust is said to be one where the beneficiary is not yet clothed with the equitable title but has a mere right to have some act done which will vest, in him such equitable title. (Nicoll v. Ogden et al., 29 Ill. 323, 81 Am. Dec. 311.) The instrument here in express terms conveys the property to a trustee with directions that the trustee shall, at the death of Mrs. Miles, convey the legal title to the beneficiaries, and it clothed the beneficiaries with the equitable title the moment it was executed and delivered.
“A trust is executed when no act is necessary to be done to give effect to it when the trust is fully and finally declared in the instrument creating it.” (3 Pom.. Eq. Jur. § 1001.)
In the same section it is said:
“When, by the terms of the trust as created, and for the purpose of carrying it into effect, the trustee is directed to do some act with the property, the trust is not thereby executory. . . . All trusts are in a senseexecutory, because a trust can not be executed except. by conveyance, and therefore there is something always to be done. But this is not the sense which a court of equity puts upon the term ‘executory trust.’ ”
Was it left either for the courts or the trustee to determine what Mrs. Miles’s intention was? Did she act as her own conveyancer or leave it for the courts or the trustee to become her conveyancer? These are the tests. The instrument expressly declares upon what terms and conditions the legal title to the trust estate has been conveyed; the final intention of the creator of the trust with respect thereto appears with absolute certainty, so that nothing remains to be done except that the trustee shall carry into effect her intention as declared.
The deed in question was not testamentary in its character. Plaintiffs in error rely upon Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, 26 Am. St. Rep. 86, and quote from the syllabus of that case as follows:
“It may be laid down as a general rule that a written instrument which discloses the intention of the maker respecting the posthumous destination of his property, and which is not to operate until after his death, is testamentary in its character, and not .a deed or contract, and may be revoked.”
It is difficult to see how the doctrine declared in that case can affect the question here. The language of the syllabus refers to the written instrument which was itself construed in Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177, and expressly held not to “contain any of the usual operative words of a conveyance, with the possible exception of this clause: ‘After the death of the said Henry Ricket of the first party, the right and title of the land in question shall vest in the said John Hazleton of the second party.’ ” (Page 326.) It was further said in the opinion that “that provision had no present operation, and could be revoked by the grantor at any time. It was «testamentary.” ■ (Page 326.) In the present case the operation of the con veyance was not deferred until after the death of Mrs. Miles. On the contrary, it operated at the moment of its execution and delivery, and conveyed the title of the real estate to the trustee in trust for the donees. It was only the-enjoyment of the property which was deferred until after her death.
In their briefs counsel speak of an “executed gift” or a “gift executed.” This instrument created an executed, or completed, trust, and from the time the deed was executed and delivered it became irrevocable. It conveyed the legal title to the property to the trustee and the equitable title in 'presentí to the beneficiaries.
“The mere fact that certain provisions in a deed.of trust are not to take effect until the grantor’s death' does not affect its character as creating an executed trust, and render it testamentary, where a present estate is transferred by it to the trustee.” (28 A. & E. Encycl. of L. 886, and cases cited.)
Nor does the fact that the donor retained a beneficial interest in the property during her life destroy its character as an executed trust. In Stone v. Hackett, Executor, & others, 78 Mass. 227, the income of the property was to be paid to the donor during his life, .and upon his death the principal was to be divided among certain charities. The trust was held valid. In Davis v. Ney, 125 Mass. 590, 28 Am. Rep. 272, a trust was upheld which allowed the donor to receive, not only the income, but such part of the principal as she might need during her life. In the case of In re Estate of Soulard, 141 Mo. 642, 663, 43 S. W. 617, 622, it was held that even the reservation of the right to direct the reinvestment of the fund was not inconsistent with a valid trust, because the reservation did not affect the title of the donees or devest them of their interest and was only a reasonable provision for the protection of the equitable rights of the donor. In the opinion it was said:
“The reservation was not of title, but of power cou pled with the trust, and is not inconsistent with the complete transfer of the title in presentí.” (Page 664.)
(To the same effect is Williams v. Evans, 154 Ill. 98, 39 N. E. 698.)
“The character of the trust as complete is not affected by the fact that the right of enjoyment is reserved to the settlor until a future period, as until his death, provided the intention to place the subject of the trust beyond his control is clearly manifested. But it is otherwise where title is not intended to pass until the settlor’s death.” (28 A. & E. Encycl. of L. 894, and cases cited in note 5.)
It is clear that none of the provisions of the deed shows an intention on the part of Mrs. Miles to retain any dominion or control over the property. All the legal title is conveyed to the trustee, and he is given absolute control over it. There is nothing inconsistent with an executed trust in the reservation of the income for her own use. The provision authorizing the trustee to sell and convey, if in his opinion the purposes of the trust will be better subserved by so doing, is coupled with a direction that, in case he does sell, the proceeds are to go to the beneficiaries named in lieu of the real estate.
it is seriously argued that we must refuse to enforce the express trust declared in the deed because incorporated into it is a provision that the trust was to cease at her death, and it is insisted that the moment she died all authority of the trustee was revoked. No court would be justified in adopting a construction so purely technical and so utterly at variance with the expressed intention of the donor. In the same sentence the deed declares that at her death the trustee shall execute and deliver to the beneficiaries quitclaim deeds of the real estate. The language of the provision reads:
“And said party of the first part hereby declares that upon her decease the said trust hereby created shall cease and determine, and said party of the second part shall then distribute and turn over said. estate, and execute and deliver quitclaim deeds of the aforesaid real estate, except under existing conditions hereinafter mentioned, with warranty against encumbrances by or through himself, as follows:”
It follows that the judgment must be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
It appears from an instruction that the-first cause of action was abandoned on the trial, and. the case was tried on the part of plaintiff for the recovery of commissions under the terms of the contract. On the part of the defendants it was contended that, about August 1, 1898, the written contract was abrogated, or was so modified that plaintiff was thereafter-to receive a commission only on such sales of flour as he actually made, and not- on sales made by the defendants, or others within the territory specified in the contract.. The letters of the manager of the mill company, introduced in evidence, show that the defendants accepted and filled orders for flour sent by plaintiff until about, the beginning of the year 1900. It was admitted that plaintiff had been paid $1306.03, and the court fairly submitted to the jury the claim that the contract had been modified by mutual consent. The evidence was. conflicting as to this proposition, and was partly letters exchanged between plaintiff and the defendants’ manager and partly oral conversations testified to by the manager. The letters were not conclusive of' these facts, and it was therefore within the province of the jury to determine them. The jury made no special findings of fact, but it is evident from the general verdict that they found these contested facts against the defendants. The facts inhering in the verdict,, which was approved by the court in denying the motion; for á new trial, can not be reconsidered here, unless, entirely unsupported by evidence.
No great injustice appears to have been done. The-contract appears to have been made for the purpose of' introducing the defendants’ flour in a large territory- where, at the time, they had only two customers. Yet by their admissions about 355 car-loads were sold in this territory within three years. If, as is to be inferred from the verdict, the written contract was neither canceled nor modified, plaintiff was entitled to his commission upon all sales made in the specified territory within the life of the contract, whether he had anything directly to do with any specific sale or not, provided, of course, he performed his part, of the contract.
The defendants’ objection to the introduction of any evidence, on the ground that it appeared on the face of the petition that the cause of action was barred by the statute of limitations, was not well taken. The second cause of action was upon the written contract, which upon its face was in effect three years from January 31, 1898, and the plaintiff had five years after the maturity of his claim thereunder to bring this action. The amended petition was filed in August, 1904, less than four years thereafter. Moreover, it has not been made apparent why the time of limitation should not be computed from the maturity of the cause of action to the commencement of the action, in 1902. By the demurrer to the evidence it was attempted to raise the same question, and the demurrer is bad for the same reason.
The defendants assign as error the refusal of the court to give their requested instructions numbered 2, 4 and 5. These instructions are based upon the theory that whenever the plaintiff was unable to represent the business of the defendants to their entire satisfaction, of which their say-so was final, their obligations under the contract, ipso facto, ceased. The purpose and purport of the contract is quite different. By- the terms of the contract plaintiff was employed, without salary and with no allowance for traveling or other expenses, for a definite term of three years, as a promoter of the defendants’ trade in flour, in an extensive territory where they had but two customers. If he failed to secure any business, he would lose both his- time and his expenses. If he succeeded in any degree, the measure of his success was the measure of his compensation — he would get a commission based on the amount of sales, by whomsoever actually made, in the territory during the term of employment. He might lose time and expenses in the fore part of the term and have a rich income in the latter part thereof. The defendants took no chances. If no trade was secured, the effort cost them nothing; and if plaintiff succeeded, they got what they desired at the expense of a small commission. In making the contract an attempt was made by a provision for arbitration to provide a method of discharging the plaintiff at the defendants’ option. The contract was drawn by the defendants’ manager, and the provision for arbitration, through ignorance of the necessary provision or other cause, was perhaps not sufficiently specific to become effective. The contract, however, viewed in connection with its purpose and the circumstances under which it was made, is sufficient to negative the construction put upon it by these requested instructions, viz., that the. defendants were released from the contract at any time they felt dissatisfied with plaintiff’s services or when they so informed him.
We have examined the other instructions requested and refused, and also the instructions given -by the court to which exceptions are taken, and we think there is no material error therein.
We find no uncontroverted evidence that the defendants ever informed plaintiff that he was discharged or that they considered the written contract no longer in force. They did inform him that his services were unsatisfactory to them, but thereafter continued to fill orders sent them by him, and to pay him a commission thereon in accordance with the terms of the contract. Nor do we find uncontroverted evidence that the written contract was modified by mutual consent. The con tract was either in force during the full three years specified therein or it was at some time before its expiration annulled or modified. The burden of proving annulment or modification was upon the defendants, and the jury were justified in finding, as they evidently did, that the contract remained in full force for the time specified. If so, plaintiff was entitled to a commission upon flour sold by the defendants in the territory specified in the contract during the three years.
The defendants in their brief say:
“The evidence showed that there was sold and shipped into the territory covered by the contract from January 31, 1898, to January 31, 1901, 251 cars of flour upon which Snively was paid no commission.”
It was admitted also that defendants had paid a commission on 104 car-loads, that each car of flour contained 125 barrels, and that each barrel contained 200 pounds. The commission on 251 cars at the stipulated rate, with interest thereon from January 31, 1901, to the date of the verdict, is the exact amount of the verdict and judgment. This disposes of the only additional question raised by the motion for a new trial, viz., that the verdict was excessive.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
An information was filed against Phil Keener, the police judge of the city of Scammon, a city of the second class, charging him with a violation of the prohibitory liquor law, in that he unlawfully ■neglected and refused to notify the county attorney of violations of the law within his knowledge and to furnish the names of the witnesses by whom such violations could be proved. The district court quashed the information, and’the state appeals. The question presented is the constitutionality of the statute under which the information was filed. It reads as follows:
“It shall be the duty of all sheriffs, deputy, sheriffs, •constables, mayors, marshals, police judges, and police ■officers of any city or town having notice or knowledge of any violation of the provisions of this act, to notify the county attorney of the fact of such violation, and to furnish him the names of any witnesses within his ^knowledge by whom such violation can be proven. If any such officer shall fail to comply with the provisions ■of this section, he shall upon conviction be fined in any sum not less than one hundred nor more than five hundred dollars; and such conviction shall -be a forfeiture of the office held by such person, and the court before whom such conviction' is had shall, in addition to the imposition of the fine aforesaid, order and adjudge the forfeiture of his said office. For a failure or neglect of •official duty in the enforcement of this act, any of the ■city or county officers herein referred to may be removed by civil action.” (Gen. Stat. 1901, § 2462.)
In support of the judgment of the district court it is argued that the doctrine of the separation of the departments of government into legislative, executive ánd judicial applies to the organization of cities of the second class; that the police judge of such a city is a judicial officer; that the duties required by the statute are non-judicial, and can not be forced upon him; and that he can not be punished or deprived of his office for failure to undertake them. This argument derives the power of the legislature to organize police courts and to provide for police judges from section 1 of article 3 of the constitution, which reads as follows:
“The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law.”
The section of the constitution quoted is not the true. source of the legislature’s authority over the establishing of municipal courts. Such authority comes with the grant to the house of representatives and senate of all the legislative power of the state (Const, art. 2, § 1), which includes power to provide for the organization and government of cities.
It is an elementary principle of constitutional law that restraints upon the power to organize and regulate municipal governments must be found in the constitution or none exists, and the manner in which such power is exercised rests entirely in the discretion of the legislature. (Cooley’s Const. Lim., 7th ed., 268.) The only limitations upon this power found in the constitution of this state are that the legislature may not confer corporate power by special act, and must provide for the organization of cities, towns and villages by general law. (Const, art. 12, §§ 1, 5.) There is, therefore, nothing to prevent the legislature from adopting any'form of government for the cities of the state which it may deem wisest. In framing municipal charters the legislature, itself a popular body, can scarcely escape the influence of the sentiments and settled habits, customs and practices of the American people; but the problems of modern city government are novel and perplexing, and so far as the constitution is concerned the legislature may vest all the executive, legislative and judicial power of a city in a single person or body of persons, if it should conclude that plan would best, promote the public welfare, or it may apportion the various functions among different officials according-to its own judgment of what the public good requires.. Mayors’ courts have been recognized by this court as. lawful under the territorial government (The State of Kansas v. Young and others, 3 Kan. 445), and under the present constitution (Prell v. McDonald, 7 Kan. 426, 12 Am. Rep. 423).
The principle involved has its foundation in the character and objects of municipal government, which are essentially local. True the government of a city is a matter which in a very important sense concerns the entire state, but the people of that city are the-persons primarily affected, and their peculiar local needs and interests are ordinarily disconnected in legal thought from the needs and interests of the people of the whole state, taken collectively.
It is a settled rule of constitutional interpretation that the grant of legislative power to the legislature excludes all other bodies from the exercise of that power. The grant to cities of legislative power respecting their local affairs, to be exercised by means of ordinances,, does not contravene this rule, because the regulation of those affairs is not regarded as a part of the state’s business.
“It has already been seen that the legislature can not delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition., to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the state.” (Cooley’s Const. Lim., 7th ed., 264.)
Manifestly local courts erected to enforce local legislation and to carry out schemes of local government are to be regarded in the same manner! They are not a part of the state judicial system. The grant of judicial power in article 3 of the constitution is quite analogous in this regard to the grant of legislative power in article 2. Judicial power proper was there referred to, and the courts inferior to the supreme court which the legislature is authorized to establish are state courts partaking of this power and forming a constituent part of the state judicial system. To those courts the constitutional doctrine of the separation of powers applies, subject to the limitations which have been found to be necessary and unavoidable in the practical working out of our scheme of government. But a police court, organized for purposes of local municipal judicature, is not a repository of the judicial power referred to in the constitution any more than a city council is a lawmaking body in the sense of the constitution. The reasoning of Mr. Chief Justice Crozier in the case of The State of Kansas v. Young and others, 3 Kan. 445, supports this view. He said:
'“But it is said that the enforcement of city ordinances is a judicial power, and that by the twenty-seventh section of the organic act the judicial power of the territory was vested exclusively in a supreme court, district. courts, • probate courts and justices of the peace. It is true that the administration of municipal ordinances is the exercise of a sort of judicial power, but it is no part of the judicial power contemplated by the section referred to. That section refers to the enforcement of the laws of the territory at large, and to that only. The courts therein named were to have the exclusive cognizance of all subjects arising directly under the laws of the legislature, or at common law, and in chancery; but it was not intended that in them alone could power to enforce city ordinances be deposited. Nor is the creation of municipal courts for the enforcement of municipal regulations inconsistent with this section, because the exercise of such power on the part of the legislature is not only not conferring judicial power within the meaning of this section, but is exercising authority over a rightful subject of legislation within the meaning of section 24.” (Page 448.)
It may be true that the legislature has created city courts which are also state courts, but the court in. question is not one of them, and their status need not now be discussed. From what has been said it follows that the legislature had the right to impose upon the defendant the duties prescribed by the statute quoted, and the information was wrongfully quashed.
The defendant is much exercised over what his attitude might be if a complaint under a city ordinance were lodged with him for a violation of the liquor law which he had reported to the county attorney. It is sufficient to say that his conduct should be the same as in. any other case in which he knows all the facts.
The judgment of the district court is reversed, with direction to deny the motion to quash. | [
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The opinion of the court was delivered by
Benson, J.:
A corporation is clothed with the powers given by its charter. (A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596.) The issuance of preferred stock, in the absence of statutory prohibition, violates no rule of public policy. (1 Cook, Stock & Stock., 3d ed., § 268.) It is urged, however, that such preference can only be in earnings, and can never be made up out of capital. It is conceded that there may be a preference in the distribution of capital when such distribution is proper, but that capital can not be applied to the payment of profits or dividends in any event. That this is the rule with reference to preferred stock in ordinary corporations must be admitted.
“An agreement to pay dividends absolutely and at all events — from the profits when there are any, and from the capital when there are not — is an undertaking which is contrary to law, and is void.” (1 Cook, Stock & Stock., 3d ed., § 271.)
This rule is referred to with apparent approval in the second edition of Endlich on Building Associations, section 464, as applicable to such corporations. The contention, is that the preference, as claimed by defendants, is contrary to the spirit and purposes of such an association, preventing the execution of the scheme for which it is organized, which scheme and purpose must be considered as limiting the effect of the language of the by-laws. It is said that the intention of the legislature in providing for this class of corporations circumscribes the extent of their lawful powers, although such restrictions are not expressly named in the statute. It has been held, however, that such an association, in the absence of charter or other legal inhibition, may lawfully give one class of shares preference over another, both with respect to dividends and principal, and that prepaid shares, bearing a fixed dividend to be paid at a definite time in pursuance to the by-laws, may be issued; that the preference thereby given is lawful, and, as between the holders of such stock and other shareholders, will be enforced in the distribution of assets, (Wilson v. Parvin, 56 C. C. A. 268, 119 Fed. 652.) In In re Guardian Permanent Benefit Building Society, 23 L. R. Ch. Div. (Eng.) 440, in discussing the rights of preferred shareholders on the winding up of a building association, it was said:
“There is nothing in the statute which says that you may not contract to give some shares an advantage over others for value received. But then there is this further consideration which must be discussed. Is it contrary to the nature of these societies, so that it is impossible to make a society with this kind of shares consistent with the law and conduct of the society ? On that point I do not think it is the province of the judicature to find out things to be inconsistent with the ordinary requirements of mankind, which the people themselves have not found out. It is all very easy for people to say it is against policy, or against the meaning of these societies; but when you see that people who have established the society do not think so, and have acted on a contrary view, it is very improbable that it is contrary to the nature of the society, and contrary to the objects the members have in view.” (Page 464.)
In Vought v. Eastern Bldg. & Loan Assn., 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761, a case where the holder of preferential stock sued for the maturity value of $100 per share, after having paid in seventy-eight payments of one dollar each, the court said:
“At the threshold of this investigation we find an absolute and unqualified promise upon the part of the ■defendant to pay to each of the holders of the stock owned by the plaintiff the sum of one hundred dollars for each share at the end of seventy-eight months from the date of the certificate, and also an indorsement thereon of the actual time when the shares were to mature. Therefore, as that time had expired and the required payments had been made, it is manifest that the plaintiff was entitled to recover, unless there is some other part of the contract which modifies or changes that provision.” (Page 512.)
The court then reviewed the by-laws and articles of association and held that the agreement expressed in the certificate of stock was not modified, and added:
“Can any one suppose for a moment that the plaintiff or her assignor, when she or he purchased this stock, with an agreement that it should mature at the end of seventy-eight months, even suspected that such maturity was to depend upon other conditions or circumstances than the expiration of the time? Obviously not. This contract must be interpreted as an agreement upon the part of the defendant to pay to the plaintiff and her assignor the amount of one hundred dollars upon each of the shares represented by the two certificates in suit at the expiration of seventy-eight months from their date and at the time indorsed upon the back thereof.” (Page-516.)
It was contended in that case that the statute did not authorize such preference. On this point the court said:
“We deem it unnecessary at this time to determine whether the defendant was authorized by that statute to enter into such contracts, for if we assume that the making of them was in excess of the express power conferred upon the corporation by that statute, still, as the contracts involved no moral turpitude and did not offend any express statute, they were not illegal in a sense that would prevent the maintenance of an action thereon. It is now well settled that a corporation can not avail itself of the defense of ultra vires when the contract has been, in good faith, fully performed by the other party, and the corporation has had the benefit of the performance and of the contract.” (Page 517.)
In Leahy v. The National Building & Loan Association, 100 Wis. 555, 76 N. W. 625, 69 Am. St. Rep. 945, it appeared that certain shares, called “definite contract stock,” had been issued, upon which a certain sum was to be paid at maturity. Referring.to the claim of the contesting stockholders that this issue was unauthorized, it was held that when they became members and assented to the contract in that form they became foreclosed from contesting it.
The office of by-laws is to regulate the conduct and define the duties of the members toward the corporation and among themselves. (Thomp. Bldg. Assoc., 2d ed., §41.) The by-laws constitute the contract between the members which determines their rights, provided they do not violate the statute or public policy. (Thomp. Bldg. Assoc., 2d ed., § 51.) The by-laws of this association, as also the certificates of stock in both classes, plainly stated the preference, and postponed the re demption of guaranty stock until all series stock should be redeemed at $500 per share. It was the hope and'expectation that, with the high rate of interest then allowed and the withdrawals that were anticipated, there would be ample funds to redeem the remaining shares of series stock at maturity without resorting-to the guaranty fund; and this hope, it seems, was realized upon the first issue, leaving a fair profit to the holders of guaranty stock then matured and paid. Because the holders of series stock of later issues did not withdraw so large a proportion, and because profits were diminished by the reduction of the legal rate of interest, investors in guaranty stock were disappointed in the result, and found that instead of receiving back the amounts paid in, with a profit, they would receive but little, if anything. It must be supposed that when they guaranteed full payment to the series stockholders out of the guaranty fund, into which their monthly payments were to go, they believed that as the owners of the residue of the assets after the series stock should be retired they would be the gainers. With the plan before them, unfolded in the by-laws, they chose to invest in this guaranty stock upon the conditions stated in the bylaws and in the certificates. Their hopes, except as to the first issue, have not been realized. Without claiming any fraud or deception, they now ask that the by-laws be so interpreted in connection with the plan and purposes of such association as to allow them to share pro rata with the holders of the series stock. It is difficult to see how this can be done without impairing the right of contract or doing violence to the agreement upon the faith of which the investments were made in series stock.
Decisions have been cited to the effect that the issuance of such preferential stock in such associations is unlawful, as being in violation of certain underlying principles of cooperation, equality and mutuality which are not common to ordinary corporations, and which have been termed the common law of their existence (Sumrall, &c., v. Commercial Building Trust’s Assignee, &c., 106 Ky. 260, 50 S. W. 69, 44 L. R. A. 659, 90 Am. St. Rep. 223; Winegardner v. Equitable Loan Co., 120 Iowa, 485, 94 N. W. 1110) ; but in the circumstances of this case, where the only question arises upon the relative rights of these two classes of stockholders under the by-laws and the recitals in the certificates, we believe the true rule to be as stated in section 149 cf Thornton and Blackledge on Building and Loan Associations :
“ ‘Shares conferring on their holders preferential or additional rights not enjoyed by the holders of other shares are called preference shares or preferred shares. They can only be created when the authority to create them is given by statute or charter, or by'agreement between all parties interested.’ Unless there be some law authorizing it, the power to issue preferred stock rests upon universal consent on the part of all stockholders ; but this universal consent may be contained in the articles of association providing for the issuance of such shares, adopted when the association was formed.”
As all the parties interested agreed to the preference claimed by the series stockholders, and the guaranty stockholders pledged their stock payments to make up the necessary amounts to redeem such series stock, it is not perceived how they can be relieved from their undertaking. This association differs essentially from ordinary corporations. It has no capital except such as it receives in monthly instalments from its members, and the earnings thereon; consequently its engagement to pay a definite amount to shareholders must, if the net earnings are insufficient for that purpose, be kept, if kept at all, by resorting to the fund so paid in. In the absence of any statutory inhibition, no fraud or mistake being claimed, the agreement of one class of share-' holders in a building and loan association that the amounts contributed by them in payment for stock shall be' held in a guaranty fund pledged for the redemption and payment at a certain time of the stock of another class', at a fixed amount, will be enforced, and such guaranty fund will be applied according to the agreement when it becomes necessary to do so in order to effect the redemption of the shares so guaranteed.
The district court having rendered a decision in harmony with these views, the judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This action was brought by Nester Dessy against W. H. Barrett to recover damages on account of injuries alleged to have been received. through the “fault, recklessness, carelessness and negligence of the defendant, his agents and representatives,” while Dessy was working in Barrett’s coalmine in Cherokee county, Kansas. The petition alleged : *
“That on the said 29th day of December, 1904, and while the said plaintiff was engaged in the regular and ordinary occupation of mining coal, and shoveling the same into a car on the track of the defendant in the said mine referred to above and described herein, there fell from the inside top of said entry, close to and projecting near to the room of this plaintiff, or where he was working, a large slate, stone, or rock, about one foot wide, about three feet thick and about ten feet in length, which said stone, or rock, in falling fell upon and struck this plaintiff upon the head, face, side and back, thereby suddenly and violently forcing him downward, and mashing and bruising and lacerating his side, back, and face, and breaking his left ankle, breaking his nose, and breaking two of his ribs, causing him great physical pain and misery and permanent injury, and disabling him greatly to his damage. . . . Plaintiff alleges further that said injuries and damages aforesaid occurred to him solely and wholly on account of the fault, recklessness, carelessness and negligence of the defendant, his agents and representatives, being to this plaintiff unknown, and he can not state the same to this court, but of which he made inquiry of the foreman in said mine, in not using and exercising proper care and caution in the proper bracing and propping of the roof in the said mine, and in the lack of skill and care in the working of the said mine, and in the failing to provide necessary props for the bracing of the roof in the said entries.”
The answer pleaded (1) a general denial, and (2) contributory negligence on the part of the plaintiff. The reply was a general denial. The plaintiff having recovered, the defendant asks for a reversal of the judgment.
There was an entry in the defendant’s mine, some distance below the surface, about six feet wide and from five to six feet high, extending east and west. The plaintiff, a coal-miner, in pursuing his work turned a room or place in which to mine coal from the north side of this entry, cutting through what is called a “horseback” or rock about three and one-half feet thick, which at that point formed the side of the entry. The width of the opening to this room was about six feet, and its height three and one-half feet, but in cutting through the horseback the rock above fell, making the mouth or opening through the horseback about five feet high, and even with the brushing over the entry. At the time of the accident the plaintiff had mined or excavated his room north eighteen or twenty feet from the side of the entry. He had shoveled coal from this room into the entry between the rails of a track extending along the entry, and between the north rail and the opening of his room. He was engaged in shoveling this coal into a car standing on this track opposite to his room. The car was about four feet wide and about two and one-half feet high. The position of the plaintiff and the injuries he received were stated by a witness as follow:
“Ques. Now, I wish you would tell the jury just the -condition you found him in and the surroundings there where you did find him. Ans. Why, it seemed to me Mr. Dessy had been loading a car, and the car was just partly loaded, and it seemed to me that his feet was on ■one side of the car shoveling coal in the car — not exactly on one side, but one end of it, partly sideways of the end of the car, shoveling coal in the car, and the rock must have come down and crushed him, and got him down, and the rock rested partly on his body and partly on the car.
“Q. Was any portion of the rock broken off and in the car? A. As closely as I can remember, the rock was broke lengthwise over the car, and the other part of it laid slanting off of the car, and rested on Dessy.”
The rock which fell upon the plaintiff was about six feet long and about three and one-half or four feet wide. The allegation of the plaintiff is that this rock fell from its position over the entry, while the defend ant contends, although not clearly alleged in the answer, that it fell from over plaintiff’s room, or the mouth of his room. Several witnesses testified that it fell from above the entry, and others that it fell from above the mouth of the plaintiff’s room. The general verdict for the plaintiff is a finding of the material facts alleged in the petition necessary to support it. (Bixby v. Bailey, 11 Kan. 359; Martin v. Hoffman, 77 Kan. 185, 93 Pac. 625.) That the rock fell from the roof of the entry is thus established by the verdict. There was, however, evidence tending to show that this rock, before it fell, extended from the roof of the entry over, or partially over, the place where the horseback had been removed. There is no claim that it extended into the plaintiff’s room beyond the horseback, where coal had been mined and removed by the plaintiff. Possibly there was some confusion in the testimony as to the precise place from which the rock fell, from the fact that the roof of the entry immediately adjoined the roof of the mouth of the room. That the rock, or a large part of it, fell from above the entry is certain from the fact that it fell upon the car standing in the entry, with a space of about a foot from its north side to the north line of the entry.
The defendant assigns as error certain instructions given to the jury, and the refusal to give other instructions requested by him. It is said that the court assumed that the alleged defect was in the entry, and did not fairly submit that question of fact to the jury. This complaint is based mainly upon the language of the ninth instruction, which stated in effect that, if the defect in the top of the entry from which the rock is alleged to have fallen was a latent defect of such recent origin that the defendant by the exercise of reasonable diligence could not have known of it, he was not liable. The court referred to the top of the entry in this and other instructions criticized in this respect because the petition alleged that the defect was there. The defendant admitted by his answer, and admits in his brief, that the rock which fell upon the plaintiff was dangerous, and therefore the court could rightfully assume that such was the fact, and properly alluded to the top of the entry as the place from which it was alleged that it had fallen, thus presenting to the jury the claim of the plaintiff with respect to the place of the alleged defect. In the eleventh instruction, in presenting the defendant’s claim that the plaintiff was injured through his own negligence, the court fairly stated the defendant’s contention with reference to such place and the plaintiff’s duty concerning it. The theories of the respective parties were thus fairly presented without assuming that either was true.
It is urged that the court erred in giving the sixth instruction, which called the attention of the jury to the “chief inquiries” for them to consider — among others, whether the plaintiff was injured while at work in the defendant’s mine, and, if so, whether such injury was caused by the negligence of the defendant. Complaint is made because the court did not include among these chief inquiries the question of contributory negligence. The court was here stating the rules applicable to the plaintiff’s claim, and afterward in proper order stated the rules relating to contributory negligence, which is a matter of defense. Separate statements of such claims are not only usual, but, to prevent confusion, are desirable. It is true that the inquiry concerning the defendant’s negligence was no more important than that relating to the plaintiff’s negligence, but it was first in order. The chief inquiries to which the attention of the jury was thus directed were matters necessary to make out the plaintiff’s case in the first instance, while the things that would defeat such a case were just as emphatically stated in other instructions. Reading the instructions together, there was no room for confusion or misunderstanding.
The defendant requested instructions designed, as counsel say, to call the attention of the jury to the question “whether the plaintiff himself created the dangerous place.” One of these is as follows:
“If you are satisfied from all of the evidence in this case that the large stone or slate which fell upon the .plaintiff was loosened, and that the place where he was at work at the time it fell upon him was rendered unsafe and the rock or slate was loosened by reason of plaintiff’s work in opening a room in the mine operated ■ by the defendant, and he continued to work under said rock or slate after it had- become dangerous by reason of his work in opening his room, the defendant would not be liable in this case, and your verdict should be for the defendant.”
This instruction, if it had been given, would have required the jury to find for the defendant if they believed from the evidence that the plaintiff in mining or excavating in his room loosened the rock in the entry which afterward fell upon him while he was at work in the mine. A statute of this state provides:
“In order to better secure the proper ventilation of every coal-mine and promote the health and safety of the persons employed therein, the owner, agent or operator shall employ a competent and practical inside overseer, to be called “mining-boss,” who shall keep a careful watch over the ventilating apparatus, the airways, traveling-ways, pumps and pump timbers and drainage, and shall see that as the miners advance their excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways.” (Gen. Stat. 1901, § 4129.)
If in making the excavation through the horseback the rock over the entry which fell upon the plaintiff was loosened by his work, it was the duty of the overseer, as the plaintiff advanced his excavations, to see that the loosened rock was carefully secured from falling in upon the traveling-ways; and this duty was not avoided by the fact, if it was a fact, that the rock thus loosened extended into the mouth of the room as well as -over a part of the entry. The miner had the right to assume, unless he had notice to the contrary, that the overseer had performed his duty in this respect. (4 Thomp. Com. Law of Neg. § 4194.)
Testimony was given to the effect that the loose rock could be seen by one passing along the entry; that, one edge of it extended from a place over the north track back into the neck of the plaintiff’s room, over the horseback; that rock had fallen there in the entry, and had been cleaned up by the defendant’s employees,, leaving, as the evidence tends to show, this loose rock overhead. . This testimony, if believed, was evidence that the overseer had failed in his duty, and tended to show negligence of the defendant; but if the instruction requested had been given a verdict could not have been returned for the plaintiff if the original loosening of the rock in the entry had been caused by excavations made by the plaintiff, without regard to his own care or knowledge of the danger. Such an instruction would have been erroneous. If in the proper discharge of his duties rock became loosened in the entry, the plaintiff, although bound to exercise due care for his own safety, still had the right to assume that, in the absence of notice to the contrary, the owner and the overseer had performed their duty. Whether he had such notice was a disputed matter of fact properly submitted to the jury.
Whether the entrance through the horseback from which the defendant claims the rock in part fell was a completed part of the mine, to which the rule requiring the owner to provide a reasonably safe place to work attached, or whether it was a part of the working place which the miner was creating, we are not required to consider, because the instruction refused applied to rock falling in the entry as well as in the room. Being erroneous so far as applicable to the entry, it was properly refused. If a finding of fact had been made that the loose rock was in the roof of the neck of the room where the horseback had been taken out, and not in the entry, such consideration might have been necessary.
An interesting discussion of the relative rights and duties of mine-owner and miner in respect to the completed portions of a mine, the working places therein, and the point of time when a place excavated by the miner becomes a completed part of the mine will be found in a note to Wellston Coal Company v. Smith, 65 Ohio St. 70, in 87 Am. St. Rep. 547, 557. For the statement of principles to some extent involved in the conclusion reached, see Taylor v. Star Coal Co., 110 Iowa, 40, 81 N. W. 249; Cushman v. Carbondale Fuel Co., 116 Iowa, 618, 88 N. W. 817; Consolidated Coal Co. v. Lundak, 196 Ill. 594, 68 N. E. 1079; 4 Thomp. Com. Law of Neg. §§ 4192-4194.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Joseph -Mealman was employed by the St. Louis & San Francisco Railroad Company as a section-hand. On August 17, 1905, Mealman, while engaged in the duties of his employment, was thrown from a hand-car and injured. He afterward commenced this action in the district court of Linn county and recovered a judgment for the sum of $2000. The railroad company brings the case here for review.
Several assignments of error have been presented, but, in the view we have taken, only one need be considered. To obtain a clear understanding of this point it will be necessary to consider the following facts: The negligence charged against the railroad company is its failure to keep in repair the brakes on the hand-car from which Mealman was thrown. These brakes had been out of repair several weeks, and were so defective as to be practically worthless. Mealman had been using the car, in company with other employees, for about two weeks before the injury, during all of which time he knew of its defective condition. A few days before he was injured he called the attention of the foreman to the condition of the brakes, and • stated that they ought to be repaired. The foreman replied that he in tended to repair them, but would continue to use them as they were for a while.
Upon these facts the railroad company claims that where an employee, without complaint, continues to work with a defective appliance, having full knowledge of its imperfect condition, he will be deemed to have waived the right to recover for an injury caused by the defect and to have assumed the risk incident thereto. This is conceded by both parties to be the law. To avoid the effect of this settled legal rule Mealman insists that where an employee, having knowledge of a defective appliance, calls the attention of his superior officer to the defect and requests that it be repaired, and receives a promise that the repair will be made, and the employee continues to work with the defective appliance relying upon the expectation that the promise will be fulfilled within a reasonable time, then he does not waive the defect nor assume the risk, but is entitled to the same immunity from danger that he would enjoy if the defective appliance were in perfect condition. And this is likewise conceded to be the law.
Finally the railroad company stands upon the proposition that Mealman has not shown a state of facts which relieves him from the assumption of risk, and this raises the question upon which this case depends. The facts bearing upon this question are as follow: On the trial the jury returned special findings of fact which read:
“(1) Ques. Was the brake on the hand-car in question defective and insufficient at the time of the injury to plaintiff complained of ? Ans. Yes.
“(2) Q. How long had the brake on the hand-car been defective and insufficient, as shown by the evidence, at the time of the injury to the plaintiff complained of? A. About two weeks.
“ (3) Q. How long prior to the injury had plaintiff been using the hand-car in question? A. About two weeks.
“ (4) Q. Did plaintiff at the time of the injury com plained of know that the brake on the hand-car was defective and insufficient? A. Yes.
“(5) Q. How long prior to the injury had plaintiff known that the brake on the hand-car was defective and insufficient ? A. About two weeks.
“ (6) Q. Did plaintiff, knowing the defective and insufficient condition of the brake, continue to use and ride on the hand-car in performing the duties of his employment by defendant? A. Yes.
“(7) Q. How old was plaintiff at the time of the happening of the injury complained of? A. Thirty-six years.
.“(8) Q. Was .plaintiff at the time óf the injury, and during the time he was using and riding on the handcar, a man of ordinary intelligence ? A. Yes.
“ (9) Q. At the time of the happening of the injury complained of, how long had plaintiff been engaged in the work of a railroad section-man? A. About six weeks.
“(10) Q. At the time of the happening of the injury complained of, how long had plaintiff been engaged in using and riding hand-cars on the section when the injury occurred? A. About six weeks.
“(11) Q. On what act of negligence on the defendant’s part do you base a verdict for the plaintiff? A. Defective brakes.”
These findings show that Mealman remained in the service of the company with full knowledge of the defect of which he complains. The only evidence upon ■the subject of his request to have the defect repaired, and the promise made to him by the foreman, consists of the testimony of Mealman himself, which reads:
“Ques. What did you say to Cassady? Ans. Why, I told him the brakes were out of fix and needed fixing.
“Q. What else did you say to him at that time about the condition.of the brakes, if anything? A. Why, there was n’t nothing. ... It was just a talk about the brakes being out of order and needed leather there, rubber or something.
“Q. That is what you said to him, is it? A. Yes, sir. ... He said go ahead and use it and he would fix it.
“Q. What did he say? A. Why, he said he would fix it. . . . He said go ahead and use it.
“Q. I will ask whether or not you relied upon that statement of his at the time you were injured? A. Yes, sir.
“Q. You say you talked with Cassady about the car being out of repair, do you? A. Yes, sir.
“Q. Tell the jury just exactly what you said to him at that time. A. I said to him the brakes was out of order and needed to be fixed, and he said he would—
“Q. Tell the jury the words you used when you talked to Cassady about these brakes. A. The way it was, we were running north from town or the tool-house out to where we stopped along the right of way to take water — where we stopped to go over in the field to get water. There was four on the car that went out, besides Mr. Cassady, that morning, two or three mornings before I was hurt, and a couple of them went over to get a keg of water, and we were standing there by the car, and we had run by the crossing that morning. Ed Cassady was present at the conversation. One of the other men was out a little piece around on the tracks.
“Q. Tell the words used in speaking to Cassady on that occasion about that car. A. We run by there and I said, ‘This brake ought to be fixedI said, ‘It needs a rubber on it.’ We pushed the car back a piece and went to get the water; while they were gone the conversation came up. I 'said to Ed, ‘We will have to fix the brakes — you will have to.’ He said, ‘All right, I will fix it.’
“Q. State over again what you said to him. A. I said to him, ‘The brakes need fixing,’ and he said he would fix them.
“Q. State again so the jury will understand just what you said. A. I said to Ed that the brakes needed fixing, and he said he would fix them.
“Q. You said a minute ago you said, ‘These brakes are out of order and we will have to fix them.’ Did n’t you use that expression ? A. T don’t know. Maybe I did.”
“Q. Did you think it was dangerous to ride on that, car in that way? A. No, sir; I did n’t.
“Q. Why wasn’t it dangerous? A. I never had thought of it being dangerous, just the brake being out of order, any more than just at that time.
“Q. You did not consider then it was dangerous in the condition it was in? You did not realize it was? A. No, sir.
“Q. Why did you speak of it to him? A. Because it was unhandy to stop at this place where we wanted to work; if we wanted to stop to put any bolts in going along we would run along on by and would have to walk back.
“Q. It was more, then, a matter of convenience? A. Yes, sir.
“Q. It was not because you regarded it dangerous to ride on that car? A. I didn’t at the present time; no, sir.
“Q. Did you not say anything to Cassady about it being dangerous? A. No.
“Q. You did n’t say anything to Cassady about it being dangerous, did you? A. No, sir.
“Q. When you told Cassady that brake was out of repair and ought to be fixed, did you intend to quit work in case he did not fix it? A. I never thought anything as to whether I would or would not.”
The rule .of law as to the character and purpose of such a request and promise is clearly stated in volume 26 of the Cyclopedia • of Law and Procedure, at page 1211, where the cases supporting the rule are noted. The rule reads:
“To be sufficient, a promise by the master to remedy defects or remove danger must be definite and certain, and must be made with a view to the servant’s safety, and as an inducement to him to continue work. The promise may, however, be implied as well as express, general as well as individual. ... In order that a servant may be relieved from the operation of the doctrine of assumed risk from a defect complained of and the danger of which he was no longer willing to incur, it is essential that his remaining in the employment was induced by the promise of the master to remedy the defect, when he would not otherwise have done so; and where the reliance is placed, not upon the promise, but upon an assurance of absence of danger, he can not recover.”
In the case of Gowen v. Harley, 56 Fed. 973, 6 C. C. A. 190, it was said by the circuit court of appeals:
“If a servant who is aware of a defect in the instruments with which he is furnished notifies the master of such defect, and is induced, by the promise of the latter to remedy it, to remain in the service, he does not thereafter assume the risk from such defect until after the master has had a reasonable time to repair it, unless the defect renders the service so imminently dangerous that no prudent person would continue in it. Hough v. Railway Co., 100 U. S. 213, 225, 25 L. Ed. 612; Railroad Co. v. Young, 49 Fed. 723, 1 C. C. A. 428; Greene v. Railway Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785; Railway Co. v. Watson, 114 Ind. 20, 27, 14 N. E. 721, and 15 N. E. 824, 5 Am. St. Rep. 578.” (Page 981.)
And further in the same opinion it was said:
“It is insisted by plaintiff’s counsel that he can escape from this rule under the exception we have stated— that where a servant is aware of a defect in the machinery furnished, and notifies the master of it, and he is induced, by the promise of the master to repair it, to remain in the service, he no longer assumes the danger. The reason on which this exception stands is that, where the servant may have been induced, by the promise of his master to remedy a defect, to expose himself to risks from it that he might otherwise have avoided by leaving the service, the master ought not to be permitted to deny his sole responsibility for those risks. • The case before us does not fall either within the exception or its reason:
“First: Because the plaintiff apprehended no risk or danger from the want of the skid, and hence could not have been induced to stay in the service, and expose himself to danger, by the promises of the defendant to furnish it. He testifies that the only reason he asked for it was because he thought it would be easier for him to slide the safe and train box over on it than to swing them across from one car to the other. He expressly says that he never before the accident thought of its being dangerous to swing them over, and that he did not regard it as at all dangerous to do so.” (56 Fed. 982.)
In the case of Lewis v. New York, &c. Railroad, 153 Mass. 73, 26 N. E. 431, 10 L. R. A. 513, the supreme court of Massachusetts recited the evidence at some length, wherein it appeared that the employee had. frequently called the attention of his foreman to the dan gerous condition of the pier of a drawbridge and in-' •sisted that it should be repaired or somebody would get hurt, and some persons had already been'injured. The question was then put to the plaintiff whether he had complained of its dangerous condition as it affected himself, and he answered as follows:
“Well, I complained of it a number of times to him. I told him somebody is going to get hurt yet; there is a number fell through, and the day before I got hurt there was one of the carpenters . . . fell through . . . chock up to his hip.” (Page 76.)
In this connection the court said:
“It is noticeable that nowhere in this conversation nor in his answers does the plaintiff say or imply that his continuance in the service was due to what Bent said in regard to the repair of the pier; and it would be giving to the conversation between the plaintiff and the superintendent a construction which we think neither intended or had in mind to hold that the plaintiff was induced to remain in the defendant’s employ by what the superintendent said about repairing the pier, or that the superintendent with that end in view gave the. answers which he did.
“The plaintiff seems to have called the attention of the superintendent to the condition of the pier, and to-have urged its repair, not on his own account, nor because the discharge of his duties was rendered more dangerous, nor because he had any intention of leaving if the pier was not repaired. But he seems to have acted in the interests of the company, and in order to prevent strangers and others coming onto the pier, and, not knowing where to go, from getting hurt. . . . No case, we think, has gone so far as to hold that where the servant does not complain on his own account, and continues in his employment with full knowledge of the risk, he can recover of the master because the latter, when the defective condition was called to his attention by the servant, gave assurances, which did not induce the servant to remain, that the defect should be remedied.” (Pages 76, 77.)
This case was followed in the case of Bodwell v. Nashua Mfg. Co., 70 N. H. 390, 47 Atl. 613. In the case of Lumber Co. v. Johnson, 22 Tex. Civ. App. 596, 55 S. W. 362, where the evidence was quite similar to that in the case of Lewis v. New York, &c. Railroad, supra, the Texas court of civil appeals said:
“When the servant knows of defective appliances or dangerous conditions surrounding the service, he. has the option of taking upon himself the risk of continuing in the employment or of quitting. He may relieve himself of the risk, if he brings the facts to the knowledge of the master and receives such promises or assurances as either to show an express assumption of the risk by the master or to afford the servant reasonable guaranty that the danger will be removed in time to prevent injury to him. To have either of these effects, it would seem that what has passed between them should appear to have had in view either a transfer of the risk from the servant to the master or the removal of the dangerous condition as a protection to the servant. In other words, the master should have induced the servant to waive his right to leave the dangerous employment, either by taking upon himself the responsibility for injuries which might result or by leading the servant to believe that the duty to repair the appliances or supply the deficiency would be performed within reasonable time. The facts here do not show that either of these things was done. Turner neither complained of his own risks nor asked for protection. He said nothing calling in question the master’s duty to himself.” (Page 598.)
These constitute a very small part of the multitude of cases holding to the same view, while our attention has not been called to any case holding to the contrary.
Mealman did not regard the defect as dangerous. He did not suggest the repair of the brakes as a precaution for his own safety. He had no thought of leaving the employment if the suggested repairs were not made. Whether the repairs were made or not was a matter of indifference to him, except, as a matter of convenience in handling the car. The reliance, if any, which he placed on the promise to repair was not the cause which induced him to remain in the service of the company. He did not continue in the employment of the company because of anything relating to these brakes. It did not enter his mind to quit'the service. There was no occasion for him to do so, as he did not ■regard the employment as dangerous. It seems clear, ■therefore, that the plaintiff assumed the risk incident To the defective brakes, and took no steps to relieve Tiimself from such responsibility. No other conclusion ■can be reached without ignoring the plaintiff’s own 'testimony and disregarding the well-settled rules of law ■.controlling such cases.
This disposes of the case, so that the other questions ■presented need not be considered. The judgment of The district court is reversed, with directions to proceed fin accordance with the views herein expressed. | [
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Per Curiam:
The only question argued in this case is if the interpleader, William E. Crawford, was a bona fide purchaser of the land in controversy. The question is one of fact, and has been determined by the trial court adversely to the interpleader, upon oral evidence.
The clear purpose of the vendors was to defraud their creditors. This fact being established, the burden rested upon the purchaser to show good faith on his part. It is not necessary that a purchaser should know of the fraudulent design of his grantors, or should knowingly participate in their scheme, in order to destroy the innocent character of the transaction as to him. It is enough that he has notice of facts sufficient to put a reasonably prudent person upon inquiry. In this case the facts and circumstances indicating there was something radically wrong about the sale were so numerous and peculiar that the trial court could not have found the purchaser lacked information sufficient to put him upon inquiry. It is not neces sary to recapitulate the evidence. The rules of law stated are elementary. The judgment of the district court is affirmed.
The same questions as above are involved in the case of William E. Crawford v. The Parlin, Orendorff & Martin Company, No. 15,542, and the judgment of the district court is affirmed. | [
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