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The opinion of the court was delivered by
Mason, J.:
The territory of Oklahoma made a contract with the state of Kansas for the keeping of territorial convicts at the state penitentiary. By its terms accounts becoming due thereunder were to be paid within thirty days after the close of each quarter, or as soon thereafter as the taxes for that purpose could be collected by the treasurer of the territory. Every three months settlements were had by the Oklahoma officials with the warden of the penitentiary and warrants of the territory were issued to him for the amounts owing. These warrants, in accordance with the territorial statute, bore interest at the rate of six per cent, per annum from their date. The warden turned over a number of them to the state treasurer, who after holding them for a time sold them for their face and accrued interest and covered the sum so realized into the state treasury. When the warrants were paid by the territory the holder received interest upon them up to that time. The state of Kansas thereafter brought an action against its treasurer upon his official bond for the recovery of the amount which the territory paid as interest on such warrants and which the state did not receive. A demurrer was sustained to the petition, which set out substantially the facts above stated, and the plaintiff prosecutes error.
It is suggested in behalf of the treasurer that as the law clid not contemplate his receiving the warrants he was not chargeable with any misconduct with respect to them. But, since he did accept them, he should be held responsible for their proper handling. Moreover,, as no statute authorized him to sell them his doing so-was doubtless at least a technical violation of his official duty. This consideration might of itself have warranted a recovery of'nominal damages, but is not important here, for this court has decided that “where a demurrer to a petition which states no ground for substantial damages is sustained, this court will not reverse the decision merely because the facts stated would entitle plaintiff to nominal damages.” (Cook v. Smith, 67 Kan. 53 [syllabus], 72 Pac. 524. See, also, Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341; 14 Encyc. Pl. & Pr. 934.)
The question to be determined is whether the facts stated gave a right to recover substantial damages. The state invokes the rule in trover that the measure of damages is the value of the property at the time of the conversion, with interest from that date. Judged by this test no actual damage was alleged. The petition does not assert that the warrants at the time of their sale were worth more than the amount received for them, nor can an inference to that effect be drawn from any of its averments. If the value of the warrants at that time was their face and accrued interest, and their sale was a conversion, the treasurer became at once liable for that amount. But as the proceeds were immediately turned into the treasury the public suffered neither actual nor theoretical loss. It is said that “in ascertaining the damages in many actions of trover it is allowable to mitigate them by investigating and determining what, for want of a phrase of greater accuracy, may be called the -equity of the case.” (28 A. & E. Encycl. of L. 734.) Upon this principle it is common to allow the defendant to show in mitigation of damages the application of chattels to the plaintiff’s benefit — in effect, to give him credit for their value. (28 A. & E. Encycl. of L. 735, 736.) Plainly where the proceeds of a wrongful sale of personal property are at once applied to the owner’s use the wrong-doer’s liability is decreased by that amount. In the present case, in the absence of any allegation that the value of the warrants at the time of their sale was greater than the amount received for them, the petition must be held to show affirmatively that the injury to the state resulting from the treasurer’s wrongful act was fully offset by the sum paid into the treasury, leaving the treasurer liable for only nominal damages. The cause of action against the treasurer accrued at the very moment he sold the warrants. The state then became entitled to recover of him the face of the warrants, with interest to that time. This amount he at once turned into the treasury, thereby satisfying in full the demand against him, and thus leaving nothing to which future interest could attach.
It is said that the measure of damages for the conversion of negotiable paper is the face value and interest (22 A. & E. Encycl. of L. 875), and possibly under some circumstances the interest should be computed to maturity instead of to the date of the conversion. Perhaps if a state treasurer should without authority sell a bond which the state held as an investment, and which fell due at a definite time, he might become liable for the interest up to its maturity, although he received and paid to the state its full market value at the time of its sale. But a different situation is here presented. The contract for the care of the Oklahoma prisoners made no mention of warrants or of interest upon delayed payments. It contemplated a payment being made in cash at the end of each quarter, subject only to a possi-, ble delay in raising the necessary funds by taxation. The warrants were merely in effect vouchers or certificates of indebtedness issued in anticipation of the territorial revenues. They were payable whenever the treasurer of the territory was in funds. As between the state and the territory the state received all it was entitled to. In view of that fact it can not be said that the measure of damages for the treasurer’s wrongful act should include interest up to the time of the actual payment of the warrants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff, James Stone, sr., a dealer in coal, delivered to the defendant railroad company, atScammon, Kan., four car-loads of coal, consigned to the-Sheridan Coal Company at Kansas City, Mo. About, the same time H. Jenkins, another coal dealer, delivered three car-loads of coal to the company at the same-place, consigned to A. Clymer at Joplin, Mo., and J. C.. Hughes, another coal dealer, delivered to the company,, at the same place, a car-load of coal consigned to J.. Coushin, at Miami, Ind. Ter. All this coal was loaded into the defendant’s cars on its tracks at Scammon. Bills of lading were made out on blanks furnished by the company for coal shipment, and handed to the defendant’s agent in charge, of its business at Scammon. for his signature. He took the bills, erased the names-of the consignees and wrote “Frisco” over the erasures, signed his name as agent, and delivered them to the-consignors. In returning one of the bills he said: “That coal belongs to the . . . company.” The defendant appropriated the coal to its own use, and did not deliver any of it to the consignees. Jenkins and Hughes assigned their respective claims to the plaintiff,., who thereupon brought an action alleging that the defendant had wrongfully confiscated and converted this coal to its own use, and that thirty days had elapsed and payment had not been made to the plaintiff therefor. The prayer was for judgment for the value of the coal, plus fifteen per cent, thereon, and six per cent, interest and an attorney’s fee. The answer was a general denial. On an objection being made to evidence under the petition, the court ruled as follows:
“The objections to the introduction of testimony are overruled, and the court proceeds to try the case on the theory that this is a suit on an implied contract for unlawful conversion, and that the measure of recovery, if it is shown that plaintiff is entitled to recover, is the reasonable market value of the property appropriated, at the time and place it was appropriated.”
The plaintiff recovered a judgment for the value of all the coal. Error is predicated on the order overruling the objections to evidence under the petition. The petition contained the following statement:
“That on or about the 31st day of March, 1906, at Scammon, Kan., the plaintiff verbally agreed with the Sheridan Coal Company, of Kansas City, Mo., to furnish it at Scammon, Kan., on board the cars, with two car-loads of lump coal, at the agreed price of $3 per ton, payment therefor to be made upon receipt of same by it in Kansas City, Mo., the freight or carriage cost thereof to be paid by the said The Sheridan Coal Company, upon the arrival of said coal at its destination. '
“That the plaintiff attempted to carry out his said agreement with said The Sheridan Coal Company, and in pursuance thereof, on or about March 31, 1906, delivered to the defendant, on its Stilson switch, near Scammon, in Cherokee county, Kansas, in car No. 70,233, fifty-eight thousand four hundred (58,400) pounds of lump coal of the value of $3 per ton, . . . and said defendant on said date, as such common carrier, received said coal in the respective cars aforesaid, from the plaintiff, for shipment as aforesaid.”
Similar averments were made in each count respecting each shipment. The argument is that the petition shows a consummated sale to the consignees, and delivery on board the cars, and that any right of action to recover for such coal was in them and not in the plaintiff.
The petition does not, as the defendant insists, allege that plaintiff sold the coal delivered on board the cars. It alleges that he furnished the coal on board the cars, to be paid for on receipt of the coal at the place of destination. The coal was never received at that place. In the course of business the consignor who sells goods delivered on board the cars obtains a bill of lading therefor showing the consignment. The defendant not only refused to transport the coal but refused to give a bill of lading showing the consignment. These facts distinguish the case from those cited by counsel where title passed by delivery on board cars.
The defendant relies on the decision in Luhrig Coal Co. v. Jones & Adams Co., 141 Fed. 617, 72 C. C. A. 311. It appeared in that case that coal had been sold for future shipment, to be delivered on board of cars, and to be paid for in monthly payments for coal so shipped. Some of the coal was confiscated by the railroad company, and the purchaser sued the consignor for damages for failure to fulfil the contract. The consignor had informed the purchaser of this seizure by the railroad company by way of excuse for its delay, and thereupon the purchaser wrote:
“The contract only requires that you load the coal on cars at your mines for us. If you do that, the coal is ours. If it is confiscated, we will deal with the railroads in regard thereto.” (Page 624.)
The court held that that interpretation of the agreement by the parties was correct. In this case, however, there was to be no payment until the coal was received at the place of destination. The delivery there was prevented by the appropriation made by the company. The plaintiff could not recover from the consignees, for the coal had not been received by them. It was not received by them because the defendant refused to transport it, and appropriated it to its own use. The defendant, having caused the loss to the plaintiff, must be held liable therefor. There was loss to the plaintiff, and corresponding gain to the defendant. The tort was one that could be waived, and as the court construed the petition, the plaintiff consenting thereto, the tort was waived and recovery allowed upon the implied contract to pay for the value of the coal taken. The defendant having, by changing the bills of lading, consigned the coal to itself, it must be presumed that it intended to pay for it. It was not injured because the plaintiff did not insist upon his right — if he had such right — to recover upon the tort, or under the statute. (Laws 1905, ch. 343; Chase v. Railway Co., 70 Kan. 546, 79 Pac. 153; Burgess v. Alcorn, 75 Kan. 735, 90 Pac. 239.) If the court erred in construing the pleading it was in favor of the defendant, and therefore is not prejudicial. (Civ. Code, § 140; Hopkinson v. Conley, 75 Kan. 65, 88 Pac. 549.)
It is insisted that the court erred in allowing the plaintiff to testify to a conversation with the defendant fuel agent. It appears that plaintiff had sent in a bill for this coal, and that the fuel agent had called in response to that demand. The following is the testimony objected to: . .
“Ques. What did Mr. McAuliffe say about paying you for the coal? Ans. Well, he sent for me up to my house; he was in the station office; I came down there; of course, I was made acquainted with him and he said he came to have a talk with us about that coal bill that the Frisco owed; he would like to have it settled; said he never had a lawsuit in his department, and did not want one.”
Another question was asked and answered not material to this ruling. The specific objection now insisted upon is that this was an attempt to compromise, and that the statements made by defendant’s agent in that effort can not be used in evidence. The rule, as stated in the cases cited by the defendant, is that offers -of compromise are not admissible unless they contain admissions of fact. (Rudd v. Dewey, 121 Iowa, 454, 96 N. W. 973; Halstead v. Coen, 31 Ind. App. 302, 67 N. E. 951.) The statements of the fuel agent tended to show an admission of fact. A bill having been presented for the coal, he called and said he came “to have a talk about that coal bill that the Frisco owed.” This evidence was properly admitted as tending to show that the company had used the coal, and the fact that the effort to settle for it failed does not destroy the probative effect of the admission nor the plaintiff’s right to use it in evidence. (2 Wig. Ev. §§ 1061, 1062.) This does not appear to have been an effort to buy peace by offering to compromise a disputed claim, but an effort to settle an admitted liability. At least the statement of the agent tended to show such admission, and was therefore properly received. (Person v. Bowe, 79 Minn. 238, 82 N. W. 480; Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454; Snow v. Batchelder, 62 Mass. 513.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This case has been in this court before. (The State v. Simmons, 74 Kan. 799, 88 Pac. 57.) The defendant was convicted of the crime of murder in.the second degree, and a new trial was awarded in this, court. On the second trail he was convicted of manslaughter in the second degree, and again appeals. He makes numerous assignments, of error. With three exceptions all of the material questions raised were considered on the former hearing, and, inferentially at least, were decided adversely to the appellant. Although each question has been reconsidered, we are satisfied with the former decision thereon and we shall not burden this opinion by discussing them in detail.
The defendant voluntarily took the witness-stand in his own behalf and was cross-examined at the first trial. His evidence was written by a stenographer, and after it was duly identified was offered by the state in the second trial. The defendant by his counsel suggested to the court that the defendant was present, that under the provisions of the constitution he could not be compelled to give evidence against himself, and that the reading of his testimony would be equivalent to compelling him to testify. The defendant was not requested again to take the witness-stand, but his objection to the reading of his former testimony was overruled. It is said in volume 1 of Thompson on Trials, section 647:
“If the accused waives his privilege and takes the witness-stand in his own behalf, at any stage of the prosecution, he waives it for every subsequent stage.”
This court has four times passed upon the question involved. (The State v. Sorter, 52 Kan. 531, 34 Pac. 1036; The State v. Miller, 35 Kan. 328, 10 Pac. 865; The State v. Taylor, 36 Kan. 329, 13 Pac. 550; The State v. Nelson, 68 Kan. 566, 75 Pac. 505.)
It is urged that the court erred in allowing the evidence of a witness, Bertha Parker, given on the former trial and taken by the stenographer and duly identified, to be read in evidence after the witness had been shown to have removed from the state of Kansas. In the syllabus of the case of Mattox v. United States, 156 U. S. 237, as reported in 15 Sup. Ct. 337, 39 L. Ed. 409, it was said:
“Where a witness for the government in a murder case dies after the first trial, the reading in evidence on the second trial of a transcribed copy of the reporter’s stenographic notes of his testimony is not inhibited by the constitutional provision that the accused shall ‘be confronted with the witnesses against him.’ ”
The defendant had been confronted with the witness, and had had the opportunity of cross-examining her, and to hold that at each successive trial the defendant must again be confronted with each witness would result frequently in the defeat of justice. The necessities of the case are the same where the witness at the' time of the second trial is beyond the jurisdiction of the court as where he is dead. The state can neither produce him personally nor introduce his deposition, if it were taken. In the Mattox case, supra, authorities are cited from many states approving the rule both in the case of death and in the absence of the witness from the state.
The testimony of the defendant was to the effect that the deceased had him prostrate upon the ground and was about to inflict great injury upon him when he shot in self-defense. The theory of the state was that the positions of the persons were practically reversed; that the deceased was upon the ground and that the defendant was standing or leaning over him. In his argument the county attorney said to the jury:
“Now I want to show you how he killed this man. I think I know, and I am not using imagination, the imagination that Senator Hessin talked about. I am using a deduction such as I have a right to make.”
He then called a deputy sheriff and caused him to lie down upon the floor in front of the jury. He then proceeded to illustrate and to state how certain wounds were inflicted, and, holding an empty revolver in his hands, illustrated how certain shots were fired. His statements were in form positive, but were evidently qualified by the previous statement that he was using a deduction such as he had' a right to make. Whether such illustrations ate proper or not and tend to aid a jury in arriving at the truth is a matter resting in the sound discretion of the court. It is evident that they might sometimes elucidate the truth and at other times be made very misleading. Of this the trial court, having heard the evidence and seen the illustrations, is in a good position to determine, and we can not say that the discretion was abused in this case.
The judgment of the district court is affirmed. | [
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Per Curiam:
In an action brought by Mary Alice Hamilton against the city of Ottawa she moved for a change of venue, upon the ground that the district judge was disqualified by reason of being a resident and taxpayer of the city. The motion was denied, and thereupon the plaintiff applied to this court for a writ of mandamus to compel that court to grant a change of venue. She insists that the district court committed error in denying her application for a change of venue. It is plausibly argued by counsel for defendant that ownership of property and residence within a city do not constitute such an interest as disqualifies a judge, but, however that may be, if an error was committed in refusing a change of venue it may be corrected in an ordinary appellate proceeding. The extraordinary remedy of mandamus can not be employed when an effective remedy may be had in a proceeding in error. (Mason v. Grubel, 64 Kan. 835, 68 Pac. 660.)
The writ is denied. | [
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The opinion of the court was delivered by
Benson, J.:
This action presents a controversy between three rival claimants for a tract of school-land. Bartlett, claiming the land, sued Nall and Christisen, the other claimants, in ejectment, in separate actions, which were afterward consolidated. The court found that the rights of Bartlett and Nall were equal, and that they, as tenants in common, were entitled to the land as against Christisen, and rendered judgment accordingly, which Christisen seeks to have reversed.
The case is presented upon the findings of the district court. From these findings it appears that a lease upon this tract expired December 31, 1908. Before the lease expired Bartlett, with the consent of the lessee, placed a house upon the land, and at 11:40 P. M. on December 31 entered upon the land, took possession of the house, and, at 12:20 A. M. on January 1, 1904, began to dig a well. From the time of his entry to the day of trial he resided on the land. At 12:02 A. M. on January 1, 1904, Nall entered upon the land, having with him a building, which he set up thereon and continued to live in as his only home for more than six months from such entry. Christisen was with Nall at the boundary of this land on December 31, and immediately after midnight crossed the line, entered upon the land, and declared that he was the first person upon it. On January 5 following he hauled lumber to the land for the purpose of building a home thereon, and on January 10 erected a house, moved into it, and for more than six months after January 1 made it.his only home.
Each of the three parties, within six months after their respective entries, made improvements on the land of the value of more than $100, and on January 1, 1904, each of them filed with the county clerk a declaration of settlement, which filings were in the following order: Christisen, Nall and Bartlett. In due time each made his proof of settlement and the required payment, and received a certificate, as provided by law; and, before the action was commenced, Nall made full payment and received a patent for the land.
The statute under which the parties claim provides that “any person who has settled upon any portion of school-land and actually resided thereon continuously for a period of six months” (Gen. Stat. 1901, § 6341), and has complied with other requirements of the law, may purchase the same in the manner therein stated. The court did not, in the findings of fact, find who made the first settlement on this land; however, as it was a fact essential to a determination of the priority of rights, it necessarily entered into the judgment and was determined adversely to Christisen’s claim. He asserted a prior right by reason of having made the first settlement; the court, having decided against this claim, necessarily found it to be untrue, although not stated in the special findings, for the general finding includes every fact necessary to support the judgment not in conflict with the special findings. (Winstead v. Standeford, 21 Kan. 270; Stratton v. Hawks, 43 Kan. 538, 23 Pac. 591; Else v. Freeman, 72 Kan. 666, 83 Pac. 409.) A settlement upon lands involves not only the outward physical and visible acts necessary to its accomplishment but also an intention permanently to establish the dwelling and residence of the settler thereon, and to do all the things in good faith required by the statute. Stepping upon the land and announcing his presence, his return there with lumber five days later, and building his house five days after that, were acts on the part of Christisen proper to be considered, with the acts of the other claimants, in determining who made the first settlement -a settlement being so made up of acts and intention. The particular findings are not necessarily in conflict with the general conclusion in favor of Bartlett and Nall, and so do not ■overthrow it.
What may be considered a settlement upon school land within the meaning of this statute was stated in Bratton v. Cross, 22 Kan. 673, but the conduct of the person, the nature of the improvements undertaken, his presence upon and his absence from the land, with the reasons therefor, and all the attendant circumstances of the particular case, must be considered in determining the ultimate fact of settlement and the time of its inception. We must presume in favor of the judgment that the evidence supported not only the special findings but the general findings also, and as the former do not necessarily conflict with the latter the judgment is affirmed. | [
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Per Curiam:
A temporary injunction against the unlawful sale of liquor was obtained against John Kindseder in a suit brought in the name of the state on the relation of Bedford Wood. .An affidavit of one D. J. Nafziger was then filed charging the defendant with a violation of the injunction. An attachment was issued and served, a formal accusation was filed, and the defendant was tried and found guilty of a contempt of court, from which conviction he appeals. The grounds of error alleged are: (1) That the affidavit and accusation were not sufficiently verified; (2)' that they did not set out the facts relied upon by the state in sufficient detail; (8) that improper evidence was admitted; and (4) that the evidence did not justify a conviction.
The statute regulating the procedure in such cases in part reads:
“That upon the réturn of an officer on process or an affidavit duly filed showing any person guilty of indirect contempt, a writ of attachment or other lawful process may issue, and such person be arrested and brought before the court or judge in chambers; and thereupon a written accusation setting forth succinctly and clearly the facts alleged to constitute such contempt shall be filed, and the accused required to answer the same.” (Gen. Stat. 1901, § 1983.)
The objection urged against the verification is that it was made by a stranger to the proceeding. The statute, however, does not require that it be made by a party or attorney, and the objection is without force.
The allegations of the affidavit and accusation were somewhat general, but they were sufficient to have made a good information under the nuisance clause and other parts of the prohibitory law. The evidence objected to was chiefly matter of which the court would have taken notice without proof, and therefore it could not have been prejudicial. The showing by the state was ample to support the decision of the trial court. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This suit was commenced in the district court of Wilson county, October 31, 1892, to recover judgment upon a promissory note and to foreclose a mortgage given upon real estate to secure the payment of such note. The note and mortgage were executed April 10, 1884, by James Barnett and Margaret L. Barnett, his wife, who then resided at Emporia, Lyon county, Kansas. On October 3, 1884, James Barnett died intestate, leaving as his surviving heirs his wife, Margaret L. Barnett, and six children, named Lulu Barnett, James D. Barnett, Samuel J. Barnett, Mary P. Barnett, Isabella C. Barnett, and Lily M. W. Barnett. The last named was born May 15, 1879, and was the youngest child. On March 10, 1890, Lulu died, unmarried and without children. On November 10, 1884, Margaret Barnett was duly appointed administratrix of her deceased husband’s estate in Lyon county. On November 2, 1892, when service of summons was made upon the defendants in the foreclosure case, the children were minors, and their mother, Margaret L. Barnett, was their guardian, having been duly appointed as such by the probate court of Lyon county, where she resided. Judgment was entered against the administratrix for the amount claimed to be due on the note on February 9, 1893, and á decree of foreclosure was entered against all of the defendants. The judgment and decree were taken upon default, as none of the defendants, who are plaintiffs in error here, made an appearance in the case.
The note by its terms became due April 10, 1889. Interest was paid thereon as it became due until October 1, 1888, when payments thereof ceased. Prior to October 1, 1888, the payee and holder of the note, the Holyoke Mutual Fire Insurance Company, assigned to the Emporia Investment Company the future interest which might accrue upon the note. On the same day the petition was filed the ■ investment company, without service of summons, filed a cross-petition, in which it prayed for judgment against all the defendants for the amount of unpaid interest then due; that such judgment be declared to be a lien upon the land described in the petition; and that it be satisfied out of the proceeds of the land when sold under the plaintiff’s mortgage.
The land was duly sold, the sale confirmed, and by subsequent conveyances defendant in error B. E. Jones became the owner thereof.. On November 29, 1905, plaintiff in error Samuel J. Barnett filed a motion in the suit to vacate the judgment, which reads:
“Comes now the above-named defendant, Samuel J. Barnett, and moves the court to set aside and hold for naught the judgment of foreclosure rendered herein against him in the above-entitled cause on the 9th day of February, 1893, as to the following tracts of land in Wilson county, Kansas, and as to each and every tract thereof, to wit: . . . for the following reasons, to wit :
“(1) That said court had no jurisdiction to render and enter such judgment against him because he was not at any time or in any manner served with summons or other process in said action.
“ (2) That said court had no jurisdiction to render and enter such judgment against him because the petition filed by said plaintiff herein, and the cross-petition filed herein by his codefendant, the Emporia Investment Company, and neither of them, stated any cause of action against him or showed that plaintiff or said Emporia Investment Company had either of them any right to a judgment of foreclosure against him.”
Mary P. Barnett, Isabella C. Barnett and Lily M. W. Barnett also filed motions of the same kind, and James D. Barnett filed a like motion, except the first ground, which he omitted. All of these motions were denied. This action of the court constitutes the error complained of, and is the only question presented here.
Under the first ground of the motion it is claimed that, the defendants being minors, the summons was not served upon them in the manner prescribed by statute. Lily M. W. Barnett was under fourteen years of age, and the statute providing how service shall be made in such cases is section 71 of the civil code, which reads:
“When the defendant is a minor under the age of fourteen years the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives.”
The return of the sheriff making service reads:
“State of Kansas, Lyon county, ss.:
“Received this writ this 2d day of November, 1892, at 8 o’clock A. M., and on this 2d day of November, 1892, served the same by delivering a copy hereof, with all the indorsements thereon, duly certified, to the within-named defendant . . . Margaret L, Barnett, and Margaret L. Barnett, as administratrix of the estate of James Barnett, deceased, personally. . . . Served the same by leaving a copy thereof with the indorsements thereon, duly certified, at the usual place of residence of the within defendants, James D. Barnett, Samuel J. Barnett, Mary P. Barnett, Isabella C. Barnett and Lily M. W. Barnett. W. A. Barnett and S. Barnett, trustees, can not be found in my county.”
It is insisted that the failure to deliver a copy of the summons to Lily M. W. Barnett in person, and also an additional copy to the 'mother, as guardian, made the service void, and therefore the court did not acquire jurisdiction of her. Defendant James D. Barnett was duly served by publication. It is claimed that Samuel J. Barnett was a non-resident of the state of Kansas when he was served by a copy of the summons left at his mother’s home, as shown by the sheriff’s return, he being at that time attending school in Chicago, “with the advice and consent of his mother,” and has ever since been absent from the state. This contention is supported by several affidavits, but it was shown that upon his entry as a studént in the Denver University in September, 1893, he gave his home address as Emporia, Kan. It is further claimed that Mary P. Barnett, Isabella Barnett and Lily M. W. Barnett have no knowledge of the service of summons having been made upon them in any manner. This claim is sustainéd by their own affidavits, and is not contradicted.
It is further urged that the defendant investment company was not entitled to have judgment against any of the other defendants for the reason that no summons was served upon them in any manner notifying them of such cross-petition, and they were therefore not bound to take notice thereof. They insist that defendants are only charged with notice of the plaintiff’s claim and such steps of a codefendant as may be taken after service of summons, and that, as the cross-petitioner filed its answer before any summons was issued, they were not chargeable with notice thereof.
These propositions have been elaborately discussed by counsel, and many authorities have been presented in support of the contention of plaintiffs in error. In the view we have taken, however, the law insisted upon is unavailing in this case. Whatever rights the defendants may have had to vacate and set aside the judgment and decree under the first ground of the motion have been waived by the second ground thereof, as it amounts to no more than a general demurrer, which does not raise a jurisdictional question. It has long been held by this court that an attack upon a judgment by a motion containing both jurisdictional and non-jurisdictional grounds constitutes a general appearance, the same as .if an appearance had been made at the trial. (Burdette v. Corgan, 26 Kan. 102; Meixell v. Kirkpatrick, 29 Kan. 679; Life Association v. Lemke, 40 Kan. 142, 19 Pac. 337; Investment Co. v. Cornell, 60 Kan. 282, 56 Pac. 475; Baker v. Land Company, 62 Kan. 79, 61 Pac. 412; Jones v. Standiferd, 69 Kan. 513, 77 Pac. 271.)
This rule of law may appear to be harsh in some instances, but in a case like this it seems to be both just and salutary. The land in controversy was sold January 21, 1895. In the nature of things the defendants must have known when their land was sold and passed into the possession of strangers. No steps were taken by them to question the validity of the judgment until more than ten years after the sale and eight years after the youngest child had reached the age of majority. The judgment is assailed upon the ground that it is absolutely void for want of jurisdiction. If this contention had prevailed the attempted foreclosure proceedings would have been a nullity, the rights of all. persons subsequently dealing with the land abrogated, and any attempt to reforeclose might have been unavailing because of lapse of time. It is not pretended that the mortgage debt has ever been paid except by the proceeds of the land, or that it ever can be otherwise satisfied. Courts do not look with favor upon the claims of persons who delay the enforcement of their rights for many years and until after the rights of innocent persons may be disturbed and injured by granting the relief requested.
Having reached the conclusion that the judgment is not void, no other question need be considered. A valid judgment can not be vacated except for the causes and within the provisions of the statute made for that purpose, being section 568 et seq. of the civil code. (Ogden v. Walters, 12 Kan. 282; Larimer v. Knoyle, 43 Kan. 338, 23 Pac. 487; Hammond v. Davenport et al., 16 Ohio St. 177; 17 A. & E. Encycl. of L. 824; Davis v. Land Co., 76 Kan. 27, 90 Pac. 766.) This proceeding was not intended to be within this statute, and does not comply therewith.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The petitioner, in the month of March, 1908, was arrested upon a complaint, charging him with having committed the crime of murder in the first degree in the month of February, 1907, in the county of Franklin. He was taken before a justice of the peace of the county, and upon a preliminary examination, in which he was represented by counsel, the justice of the peace found that the crime of murder in the first degree had been committed, that the proof of the petitioner’s guilt thereof was evident and the presumption great, and that the offense was not bailable. The petitioner was thereupon committed to the jail of the county until the next term of court and until he should be discharged according to law. Afterward he presented his petition for a writ of habeas corpus to the district judge of Franklin county for the purpose of being admitted to bail. A hearing was had upon the application, and bail was again refused upon a finding that the crime charged had been committed and that the proof of the petitioner’s guilt was evident and the presumption great. Thereafter, and after the commencement of the term of court to which the defendant was committed to appear, he filed his petition in this court for the same purpose. Upon the hearing in this court he produced a transcript of the evidence taken before the justice of the peace, and also a transcript of the evidence taken on the hearing before the district judge, for the purpose of having the question óf fact reviewed.
As the district court of the county is now in session and the action therein is set for hearing upon its merits at the present term, vfe decline to review the evidence upon the question of fact, but assume, for the purpose of determining the legal questions involved, that the findings of the justice of the peace and of the district judge are supported by the evidence.
The constitution of the state, section 9 of the bill of rights, provides that “all persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great.” Section 1993 of the General Statutes of 1901 was in force in the month of February, 1907, when the crime of murder in the first degree is charged to have been committed. In part it reads: “Persons convicted of murder in the first degree shall suffer death.” Section 5493 of the General Statutes of 1901 was also in force at that time. It reads:
“Persons charged with an offense punishable with death shall not be admitted to bail when the proof is evident or the presumption great; but for all other offenses bail may be taken in such sums as in the opinion of the magistrate will secure the appearance of the person charged with the offense at the court where such person is to be tried.”
It will be observed that the legislature, in the enactment of the sections quoted, construed the words “capital offenses” in the constitutional provision as meaning offenses punishable by death. This is the general and legal meaning of the words.
The legislature of 1907, by section 1 of chapter 188 of the Laws of 1907, repealed and amended section 1993 of the General Statutes of 1901 so as to read:
“Persons convicted of murder in the first degree shall be punished by confinement and hard labor in the penitentiary of the state of Kansas for life.”
This act was approved January 30, 1907, and took effect upon the publication of the statute-book, May 27, 1907. No saving clause is incorporated in the act of 1907. Section 7342 of the General Statutes of 1901, however, provides as follows:
“In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute:
“First. The repeal of a statute does not revive a statute previously repealed nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
It is urged on behalf of the petitioner that, as the criminal action against him was not commenced until after the repeal of the statute imposing the death penalty, the penalty of death can not be imposed upon him, if he be convicted, and therefore the crime charged is not a capital offense and is bailable. Had the legislature in the enactment of the amendment which changes the penalty provided to what cases the amendment should be applicable with reference to the time of its passage, the special provision would control. In the absence, however, of any such provision the general provision in section 7342 applies. The disputed question, then, hinges upon the meaning of the words “penalty incurred,” as used in the general provision. Primarily they mean a punishment brought upon one’s-self, but they are used with reference to civil forfeitures also. Any civil claim to which the latter meaning might attach is fully comprehended and protected in a former clause of the section: “any right which accrued.” It is not to be presumed that the clause in question adds nothing to the provision; hence we conclude the words were used in . their primary and more usual, signification, and the clause is especially, if not solely, applicable to criminal cases.
The penalty is imposed by the court after the fact of guilt is legally determined. It is incurred when the act for which the law prescribes the penalty is committed. It follows, then, since the crime is charged to have been committed before the repeal of the statute prescribing the penalty of death, that the repeal and amendment do not affect the penalty of the crime charged, and, assuming that the proof is evident and the presumption great, the petitioner is not entitled to bail.
The petition is denied. | [
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The opinion of the- court was delivered by
Graves, J.:
This action was commenced in the district court of Hamilton county, to recover possession of the real estate in controversy. The plaintiff was James P. Ford, whose right to the land depended upon a conveyance from the holder of a tax deed. The defendants were in possession of the land, claiming title from the patentee. It is conceded that they are the owners unless cut out by the plaintiff’s tax deed.
On the trial the plaintiff introduced his tax deed and the conveyance to himself by the tax-déed' holder, and rested. The defendants introduced conveyances showing a chain of title from the government to themselves, and then, to overthrow the tax deed, offered the delinquent tax notice, which reads:
“Notice is hereby given that on Tuesday, the 4th day of September, A. D. 1900, and next succeeding days, I will sell at public auction at my office in Syracuse, Hamilton county, Kansas, as much of the following-described tracts of land and town lots as may be necessary to pay the taxes and charges thereon due for the year 1899. Dated at Syracuse, Hamilton county, Kansas, July 10, 1900.”
Then follows a list of lands, among which is the tract in controversy. They also offered the redemption notice, which reads:
“Treasurer’s Office, Hamilton County, Kansas, Feb mary 28, 1908: The taxpayers of Hamilton county, Kansas, will please take notice that the following list of unredeemed lands and town lots will be conveyed to the holders of tax-sale certificates for the same unless such lands and town lots are redeemed on or before September 4, 1903. W. P. Humphrey, Treasurer Hamilton County, Kansas.”
Then follows a list of lands and town lots and the amounts required for redemption, and the following entry : “Augusta E. Taylor, N. hf. of S. E. qr. 30-23-40, amt. $22.39.”
The only purpose for introducing these notices was to show that full three years did not intervene between the tax sale and the last day for redemption. It is contended that the last day for redemption in the final notice should have been September 5, as the owner would have all the day of September 4 in which to redeem, the three years not expiring until the close of that day. We think that the language “on or before September 4” is sufficient and would give all of the 4th of September in which to make redemption, and therefore full three years are given by these notices. (Ireland v. George, 41 Kan. 751, 21 Pac. 776.)
It is further contended that the amount stated in the final redemption notice as the amount necessary to redeem ($22.39) is too large, and that this error makes the deed void. No basis is furnished upon which to test the accuracy of this claim. The time when the payment of the subsequent taxes was made is not given, and therefore the computation of interest can not be made with satisfactory accuracy; but the deed is prima facie evidence that it is regular and valid. If the interest be computed upon the certificate from the date it was issued, and upon each payment of subsequent taxes from the earliest date at which payment could have been made to the last day of redemption, the amount will exceed that stated in the notice. We conclude, therefore, in the absence of anything to the contrary, that the amount given is correct and that the deed is valid.
After these notices were placed in evidence the defendants rested. The case was submitted to the court and taken under advisement for the purpose of preparing findings of fact and conclusions of law. Afterward, on the next day, before the final decision of the court and while it was still in session, the defendants requested the court to hear further evidence from them, which it declined to do. No showing whatever was made for this request, and the court based its refusal solely upon the ground that the evidence should have been presented at the proper time. This action of the court is claimed to be erroneous. We are unable to concur in this conclusion. The particular circumstances surrounding the case do not appear. Courts must be left free to control the conduct of the business before them, and the charge of abuse of discretion can not be sustained unless clearly shown. We can not say that it is improper for a trial court to require trials to be finished when the parties rest and submit the case.
We are unable to find error in the record, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Edward Henschell prosecutes ■ error from a judgment-rendered against, him upon the sustaining of a demurrer to his evidence in an' action, brought by him against the Union . Pacific Railway Company to recover damages for injuries, received by having his hand caught in the cog-wheels of a machine which he operated in the defendant’s repair-shops.
The case comes here by a transcript, not by a case-made. The evidence was brought upon the record, not by a bill of exceptions, but by the authentication of the stenographer, as provided in section 1 of chapter 820-of the Laws of 1905. A motion to dismiss is made on. the ground that the provisions of this statute were not. complied with. The plaintiff prepared a document containing a statement of all the proceedings that had been, had, including the evidence, which he caused to be-settled as a case-made. After proceeding thus far he-concluded not to rely upon a case-made. He therefore had the stenographer attach a certificate that certain, enumerated pages of the document contained a true and correct transcript of all the evidence, with all objections and exceptions and rulings thereon, and filed the whole with the clerk of the trial court. There is. attached to the petition in error what purports to be a. transcript of the record, although it apparently consists of the document -originally prepared as a case-made. These considerations do not show any ground for dismissal. This case differs from Marty v. City of Rosedale , which was dismissed at the last session ■of the court under somewhat similar circumstances. There, however, the stenographer certified that the entire document, which had been prepared as a case-made, contained the evidence, but it was not possible to tell from the certificate what portion of the contents constituted the transcript of the evidence. Here the pages containing this matter are specifically 'designated. Of course the clerk óf the court of common pleas should have retained the original manuscript authenticated by the stenographer, and should have inserted a copy of it in the transcript of the record to which he attached his own certificate. But the fact that he used the original instead of a copy does not deprive this court of jurisdiction. When the stenographer’s transcript of the evidence was filed with the clerk of the trial court it became a part of the record of the case. It is still a part of that record in contemplation of law, although it has been physically removed to this court. The transcript filéd here correctly exhibits the proceedings below, and the clerk’s mistake in using a part of the original record for a copy is not a ground for dismissal.
The cog-wheels by which the plaintiff was injured required from time to time to be shifted out of gear with each other. This was accomplished by grasping one of them by the rim and pulling it in the direction of its axis. Of course this was to be done only while the wheels were at rest. Power was applied to and cut off from them by means of an anchor-shaped latch near the floor, which was worked by the operator’s foot. While the plaintiff was throwing them out of gear in the manner described, having first shut off the power from them by moving the latch with his foot, in some unexplained manner the latch sprang back into place, the gearing was set in motion, and a part of his little finger was cut off. He claims that the defendant was negligent in these respects: (1) In not having a knob or handle attached to the cog-wheel by which it could be shifted without grasping it by the rim; (2) in not warning him of the danger in operating such gearing-without such an appliance; an,d (3) in not having the-cog-wheels guarded, as required by the “factory act.”' So far as relates to the first two allegations of negligence they are unavailing, for this reason, if for no-other: the danger in operating the cog-wheels by placing the hand upon the rim of one of them was perfectly obvious, providing it is assumed that they might begin moving during the operation. The act was safe so long as the wheels were stationary, but if they began-to move injury was almost inevitable. Although the plaintiff was not of age, his testimony showed that he was fully capable of appreciating these facts, and did appreciate them. He must be regarded as having assumed the risk so far as it resulted from the manner of shifting the cog-wheels out of gear. No claim was made that the unexpected starting of the machinery — the apparent proximate cause of the injury — was due to defective appliances or to any other form of negligence; nor was there any showing that this was something that the defendant ought reasonably to have anticipated.
As against the third character of negligence complained of — the violation of the factory act — assumption of risk would not be a defense, but upon this aspect of the case there was an entire failure of proof. The statute (Laws 1903, ch. 356, § 4) requires that “all . . . cog gearing . . . used in a manufacturing establishment shall, where practicable, be properly and safely guarded, 'for the purpose of preventing . ■ . . injury to the persons employed ... in any such establishment.” There was evidence that a knob or Handle could have been attached to the cogwheel so that it could have been pulled out of gear without taking hold of the rim, but none that the cog gearing could' have been screened, enclosed, boxed or covered, which is manifestly the kind of guarding the law contemplates; that is-, the supplying of some phys ical shield to prevent one from coming in contact with the dangerous machinery — not a remodeling of the machine or the adoption of a different method of operating-it> or even the adding of a device by which it might be more safely handled. We do not discover that the-language quoted has received a judicial construction in this respect, but the meaning we attribute to it seems obvious. An employer may of course be rendered liable by a failure to provide a safe method of operating-his machinery, but liability under the statute arises-only by neglect of the very precautions there commanded. In some cases a presumption might be derived from a description of the machinery that a guard of the kind referred to in the statute was practicable,, but that does not appear to be the situation here. A. skilled machinist testified that modern machines intended for the same general purposes were differently constructed, so that the cogs were not exposed, and could be changed without stopping; that new parts could have been added to the old machine so as to-render it safer; but he was not asked and did not say whether a physical barrier could have been interposed between the operator and the cogs. The plaintiff pleaded that a statutory guard was practicable, and it was incumbent upon him to offer evidence in support of the allegation. Not having done so, a demurrer tothe evidence was properly sustained for this reason, so far as the action was to be regarded as one brought under the factory act. The allegation thus left without support was an essential one. Even under a statute which omitted the words “when practicable,” it-was said in Laporte Carriage Co. v. Sullender, 165 Ind. 290, 75 N. E. 277:
“There is also an entire absence of facts to disclose-whether it is possible or practicable properly to guard this particular machine without rendering it useless for the purpose for which it is intended to be operated. The burden of showing these facts in the pleading-rested on appellee, and the fact, if it is a fact, that the- machine or appliance in question is of such a character that it can not be properly guarded can not be said to be a matter of defense to be proved by appellant; for, as previously said, a party who relies upon a statute must bring himself fully and clearly within all its provisions.” (Page 303.) ■
The judgment is affirmed.
No opinion was rendered in this ease. — Rep. | [
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The opinion of- the court was delivered by
Graves, J.:
Many important and interesting questions have been ably and exhaustively discussed by counsel, both in the briefs and the oral argument, but we have concluded that the case can be disposed of by the decision of a single question, and will, therefore, consider nothing further.
It will be seen that the statute which conferred the authority under which this franchise was .granted expressly limits the duration of such grant to twenty-one years. It is needless, therefore, to inquire what power the city might have had under the general-welfare clause of its charter with respect to providing electric light for its streets, lanes and alleys and for the use of its inhabitants in the absence of a statute upon that subject, nor what rights it might have had under the general-welfare clause and this statute taken together, if the restrictive clause had been omitted. The limitartion against granting such a franchise for a period exceeding twenty-one years amounts to an absolute prohibition, which is conclusive upon the city and all other persons. Both of the parties to this franchise were bound to take notice of the law under which they acted, and must be held to have contracted with reference thereto.
The city council, being without authority to grant the franchise for a period exceeding twenty-one years when the ordinance in question was enacted, was likewise powerless to impose a valid burden upon the city as a penalty for' refusing to do the act which the statute prohibited it from agreeing to do. That which the city was forbidden to do directly it could not accomplish by evasion and indirection. The evident purpose of the limitation placed upon the continuance of franchises of this kind was to give cities an opportunity at reasonable intervals to revise the provisions thereof, and thereby secure by the terms of a new contract such advantages as might result from the growth of the city and the consequent increased demand for light and power, or on account of improved appliances for lighting plants or otherwise. The language here used is: “If at the expiration of twenty-one years the city shall refuse to grant a further continuance of these privileges the said city shall purchase,” etc. This completely deprives the city of an opportunity to stipulate for any change in the terms or conditions of the contract, and enforces a perpetuation of the old franchise, however disadvantageous its provisions might be to the city. In this indirect manner the object of the statute is rendered nugatory. The provision of the statute limiting the life of the franchise presents a complete bar to the enforcement of this provision of the contract. These propositions are too familiar and elementary to justify the citation of authorities in their support.
The judgment of the district court is reversed, with instructions to enter judgment for costs in favor of the city. | [
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Per Curiam:
C. W. Trickett brings to the attention •of the court an accusation containing charges which he makes affecting the professional conduct of C. R. Cooksey, an attorney of this court, and asks that such charges be investigated and such action be taken as the result of the investigation may indicate. On the face of the accusation it appears that shortly before it was filed Mr. Cooksey instituted disbarment proceedings against Mr. Trickett in another forum, and that the charges of the accusation relate to subjects of investigation involved in, and connected with, that proceeding. Without passing upon the merits of the accusation or its sufficiency as a basis for an investigation ■of the conduct of the party charged, the court is of the opinion that it should not take cognizance of it pending "the disbarment proceeding against the court’s informant. Therefore, the prayer of the accusation is denied. | [
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Per Curiam:
The plaintiff’s motion to set aside the judgment against him was based upon the sole ground of irregularity in the conduct of the court. It was not filed within three days after the judgment, nor at the same term of court.
The motion was unavailing under section 568 of the civil code, because no showing was offered and no adjudication was made that the plaintiff has a valid cause of action, as section 572 of the civil code requires.
The motion came too late under section 306 of the code, unless the affidavit accompanying the motion shows that the plaintiff was unavoidably prevented from filing it earlier. (Civ. Code, § 308.) The plaintiff does not pretend to say his illness prevented him from being in Topeka on March 1, or within three days thereafter, to attend to his case. He does not claim to have been absent after March 5. The only reason the motion 'was not filed in time was that plaintiff had been wrongly informed that the mandate of this court had not been filed in the district court. It is impossible to say that this circumstance was unavoidable or that it prevented the plaintiff from looking after his case, within the legal signification of the words italicized.
The judgment of the district court is affirmed. | [
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Per Curiam:
The plaintiff is a Nebraska corporation, with its principal place of business at Beatrice, Neb., and it sold through its traveling agent a number of grain-drills to the defendant. This action was brought to recover the purchase-price of the drills. The defense relied upon was that the plaintiff, being a foreign corporation and having failed to obtain a license to do business within the state, could not maintain the action. The cause came on for trial before the court and a jury. The defendant took the burden of proof, and offered evidence in support of his defense. At the close of the testimony plaintiff demurred to the evidence. The court refused to rule upon the demurrer, but dismissed the cause, on the ground that the evidence showed that plaintiff had been doing business within the state without having complied with the law.
Whether the plaintiff was actually engaged in business within the state in the contemplation of the Bush law was a question of fact and not of law. It was therefore error for the court to take the question from the jury and decide it.
The judgment is reversed and the cause remanded for another trial. | [
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The opinion of the court was delivered by
Graves, J.:
The tax deed being void, the title of the parties to the land in controversy must depend upon their respective quitclaim deeds. Drury was the owner and conveyed the premises first to Ennis, and afterward to Wagner for Tucker. Upon this situation Ennis contends that Wagner, having taken a quitclaim ■deed, obtained thereby only such interest in the land as his grantor, Drury, held at the date of the conveyance, which was nothing, as the latter had previously conveyed it to Ennis. On the other hand Wagner insists that the public records showed a clear title in Drury, and that he in good faith accepted the conveyance from Drury relying upon the record;'that Ennis, by failing to have his deed recorded, lost the advantage of being a prior purchaser.
The rule concerning the rights of persons holding real estate under quitclaim deeds is not the same in all jurisdictions, but in this state it has been frequently considered and may be regarded as settled. Whoever takes ■ a quitclaim deed is notified by the very limitations in the conveyance that the grantor does not undertake to convey a full title to the premises. This limitation is a sufficient suggestion that other interests may be outstanding to place the grantee upon inquiry as to what such possible interests may be. It may be stated, therefore, that as a general rule the holder of such a deed takes the land conveyed subject to all outstanding interests and equities shown by the records and such as are discoverable by the exercise of reasonable diligence. A quitclaim deed, however, will convey the present interest of the grantor in the premises as effectually as any other instrument. The chief distinguishing feature between this kind of a deed and other, forms of conveyance is that it furnishes notice to the grantee of outstanding, interests and equities additional to those of which constructive notice is imparted by the public record. If the grantor holds the full title to the premises, a quitclaim deed will convey the complete estate; if there are outstanding unrecorded interests or equities of any kind, the conveyance will be subject to such of these as a reasonably diligent search would discover. If there be outstanding unrecorded equities or interests, however, which are unknown to the purchaser, and which can not be ascertained by a reasonably diligent search, and the purchase is made in good faith and for value, then the conveyance will take precedence thereof. The degree of diligence necessary to give this preference will depend upon the cir cumstances of each particular case. It is vigorously contended by the plaintiff in error that the holder of a quitclaim deed takes subject to all outstanding-equities, without restriction or limitation, but such is not the rule in this state. (Lewis v. Kirk, 28 Kan. 497, 42 Am. Rep. 173; Lee v. Bermingham, 30 Kan. 312, 1 Pac. 73; Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243; Merrill v. Hutchinson, 45 Kan. 59, 25 Pac. 215, 23 Am. St. Rep. 713; Fountain v. Kenney, 71 Kan. 642, 81 Pac. 179; Eger v. Brown, 77 Kan. 510, 94 Pac. 803.)
Tested by the rule recognized here, we think the district court properly found that the quitclaim deed from Drury to Wagner conveyed the premises free from the claim of Ennis under the older, unrecorded deed. The situation of the parties and the circumstances of the transaction show that Wagner was deceived by both Drury and Ennis, and was thereby induced to make the purchase. This suit, which involved the title to the land in question, was pending; Wagner was the attorney for the plaintiff, Tucker; and Ennis was the attorney for Drury. So long as the suit was pending Wagner might, and naturally would, think that Ennis was in good faith representing the interest of his client, and that the client continued to be the owner of the land in litigation. Nothing has been shown which would justify the suspicion on the part of Wagner that the land had been sold by Drury to his attorney and that the litigation was being continued under its- original style to accomplish the purposes of such attorney. The circumstances under which Ennis acquired his deed from Drury, arid his subsequent conduct of the lawsuit, were well calculated to conceal his interest in the land, so that no reasonable amount of diligence upon the part of Wagner would have enabled him to discover it.
On the other hand, Ennis knew that Tucker desired to buy the interest of Drury, and might negotiate therefor with him directly, but with this knowledge the fact that Drury had parted with his title was concealed from both Tucker and Wagner. Ennis not only failed to have his deed recorded, but paid the taxes on the land in the name of Drury, showing a purpose on his part to prevent Wagner from discovering the real situation. The fact that the tax appeared by the record to have been paid by Ennis disclosed nothing unusual to Wagner; it merely showed the payment of taxes by an attorney on the land of his client — a very common and proper proceeding. It contained no suggestion of ownership on the part of the attorney. On the contrary it indicated ownership in Drury, and was evidently intended to convey that impression.
The letters written by Ennis after Wagner had obtained the deed from Drury could not, it is insisted, have influenced Wagner in making the purchase. These letters were probably admitted for the purpose of showing why the deed from Drury to Ennis was not recorded, and the general purpose on the part of Ennis to keep that conveyance from the knowledge of-Wagner.
It is also urged that the deed from Drury to Wagner is void because made in violation of sections 2091 and 2092 of the General Statutes of 1901, which make it a crime to convey real estate with intent to defraud prior purchasers or other persons, and also require persons who make conveyances to mention therein all prior instruments which may have been made relating to the same lands. We are unable, however, to see how these sections apply to this case, as there is no evidence of an intent to defraud on the part of either party. The only evidence upon this subject was that of Drury, who testified that he supposed when he made the second deed that the first one had been recorded and no one would be deceived or misled by the later one.
Complaint is made that Ennis took the deposition of Drury, whose testimony proved unsatisfactory and disappointing to such an extent that he declined to offer it in evidence, and the defendant in error was thereupon permitted to do so, although Ennis objected. We are unable to find any objections in the abstract, and therefore we can not say such action of the court was erroneous.
It is further contended that Wagner was not a purchaser for value, having only paid $40 for the deed. We can not consent to this conclusion. We do not understand the rule to be that a purchaser for value must necessarily give an adequate price. •
There are other questions discussed by the plaintiff in error, but in the view we have taken they are not material, and need not be considered. We find that the interest in the real estate held by Ennis under his quitclaim deed was a secret and concealed equity, of which Wagner had no notice or knowledge when he received the deed from Drury, and the existence of which could not, by the exercise of any reasonable degree of diligence, have been discovered by him; and that the latter was a purchaser in good faith and for value. We therefore conclude that the purchase by Ennis, though prior in time, is subsequent in right to that of Tucker.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In the view we have taken of this case there are but two findings of fact which we think require comment. The twenty-third finding is as follows:
“That the actual market value of the land in controversy during the latter part of September, 1905, can not be found and stated by the court from the testimony introduced, but that it was worth something more than $1000 at or about that' time.”
While it may have been difficult for the court to find the actual market value of the land at the time the contract was made, we think the evidence would have warranted a finding that its market value was in the neigh borhood of $2000 at the time. The eighteenth finding is as follows:
“That the influence of Mrs. Calhoun upon the defendant, if any, by reason of her recommendation that .she sell for $850, was of no effect, as the defendant refused to accept that amount and testified that she acted •upon her own judgment in the matter.”
This finding is based upon a mistaken inference of the court from a fact in evidence and a misconception or • oversight with respect to the testimony. Because defendant refused to accept the offer of $850 it by no means follows that the advice of the granddaughter had .no effect as an inducement for her offer to take $1000. It would, in our opinion, naturally have considerable influence in determining the amount she would ask. As to the second reason suggested by the court, it is true "that the defendant stated that she acted on her own .judgment in the matter, but her whole testimony must 'be taken together, and she testified as follows:
“Ques. Mrs. Shoop, you may state what influence 'these letters you received from your granddaughter had upon you in regard to the sale of this land? Ans. Well, she advised me to sell it, and told me she thought it was a good price for it, and me not knowing anything ;about it it had some influence for me to sell it.
“Q. State whether or not you relied upon these suggestions as contained in these letters from your granddaughter. A. Yes, sir.”
To say that the letters of the granddaughter had no •effect as an inducement for defendant to fix her price at $1000 is to leave out of account the inferences and presumptions which naturally arise under the circum■stances. Finding No. 23 should have been modified, .and finding No. 18 set aside.
Specific performance is not a matter of right, but of •equity. A contract to sell or purchase may be regularly made, yet specific performance will not follow as a matter of course. (Fowler v. Marshall, 29 Kan. 665; Bird v. Logan, 35 Kan. 228, 10 Pac. 564.) The appli cation is addressed to the sound legal discretion of the court, and courts will be governed by the facts and circumstances of each case. (Reid v. Mix, 63 Kan. 745, 66 Pac. 1021, 55 L. R. A. 706; Viele v. Troy and Boston R. R. Co., 21 Barb. [N. Y.] 381.) Although the proof might come far short of a showing sufficient to authorize the court to grant a rescission or cancelation of a contract, still on the same proof equity will often refuse to compel performance. For instance, a court of equity will not decree a rescission of a contract except for fraud or mistake. Inadequacy, improvidence, surprise and hardship are not sufficient, yet the presence of these, amounting to unfairness, even without fraud or mistake, will prevent a court of equity from ordering performance. While inadequacy of price is not sufficient of itself to avoid a decree for performance, it is a circumstance which will be taken into consideration with all the facts in determining whether a court of equity is called upon to afford relief. The opportunities of parties to know the true situation may always be taken into consideration, although it can not be said that it is the duty of the purchaser in each instance to inform the seller of the reasons for his desire to purchase nor the facts and circumstances which in his opinion enhance the value of the land.
If in this case Burnside had himself written to the defendant offering her $850 for the land, without expressing any opinion as to its value or his ability to purchase other land, and she had replied offering to take $1000, and he had accepted, an: entirely different case would be presented, and his failure to inform her of the new conditions and the inadequacy of the consideration might not be sufficient grounds to prevent specific performance. The contract in this case was made with a woman eighty years of age, living at a great distance from the land. For eight years she had not been near the land, and was wholly ignorant of what Burnside well knew — that there had been a sudden rise in the value of all farm lands in that vicinity. Instead of writing to her directly or employing a person in no way connected with her to act as his agent, he procured the granddaughter to write the letters for the purpose of inducing the defendant to consent to the .sale of her land at about one-half of its actual value. The letters of the granddaughter contained no suggestion of any interest on the part of the writer other ■than what the defendant might have naturally assumed to be based on a desire to have her make a good bargain. Defendant was not informed that her granddaughter was to receive $50 in case there was a sale. And the •statement in the letter of September 19 that the buyer would not go any higher than $850 was misleading, as he was in fact expecting to pay $50 more.
It is not necessary to say in this case that Burnside was guilty of fraud. The doctrine is well established that before a court of equity will enforce performance of a contract of this kind it must appear to have been fairly entered into without any sort of advantage or imposition — must, in other words, appeal to the conscience of the court and compel its discretion, The ■situation of the parties and all the facts and circumstances of this case do not so appeal to our discretion, nor, in our opinion, warrant a decree compelling the defendant to convey. As two of the findings, however, •can not stand another trial will be necessary.
The judgment is reversed and a new trial ordered. | [
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Per Curiam:
The only argument advanced by the defendant ■city is based upon a quibble over the language of one of the commissioner’s findings that borders upon the frivolous. • The conduct •of the city is utterly indefensible either in law or morals, and judgment is rendered in favor of the state as prayed for in the petition, and for costs. The commissioner’s application for compensation and expenses is allowed, and the stenographer’s bill for attendance, fees and expenses is allowed, all to be taxed as ■costs. | [
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Per Curiam:
This is an appeal from a judgment of contempt. The failure of the appellant to make any objection to the proceedings and his giving of a recognizance for his appearance waived all irregularities, if there were any, up to that time.
It will not be presumed that the district judge acted outside his jurisdiction. If he did so the fact should have been shown.
It was not necessary that a copy of the judgment violated should be attached to the accusation. The court took judicial notice of it. The fact that the purported copy which was furnished deviated from the original in orthography and other slight particulars did not warrant the sustaining of an objection to the introduction of evidence.
The answer of the appellant to the merits waived all technical defects in the accusation. However, the statement of the venue at the top of the verification should be read as a part of the official certificate, and this shows the justice acted in his county. It was not necessary that the certificate should show he acted in his township. If he did not do so the appellant should have proved the fact.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Plaintiff brought this action for specific performance of an alleged contract for conveyance of an oil interest. Trial was to the court. At the conclusion of all the evidence plaintiff moved to amend her pleadings to conform to the evidence. The trial court denied this motion and entered judgment for the defendant in the action as originally brought. Plaintiff appeals from the order denying her motion to amend.
We first summarize the background facts:
Harvey O. Weaver and appellee Dewey F. Weaver were brothers. Harvey died in August, 1968. In October, 1968, appellant Mae Stehlik, as executor of his estate, commenced this proceeding against Dewey by filing her petition in which she alleged the execution of a written contract by Dewey to convey to Harvey one-half of the working interest (less an override) in an oil and gas lease known as the Pixlee lease; she alleged nonperformance by Dewey and prayed he be required to perform. Dewey’s answer admitted execution of the instrument in question but alleged subsequent material alteration in its content without his knowledge or consent; he also detailed his version of the transactions between his brother and himself and claimed full ownership in the Pixlee lease.
At pretrial conference the only controverted issues of fact were determined to be (1) whether Dewey had conveyed or agreed to convey to Harvey one-half of the working interest in the Pixlee lease and, if he had, (2) whether Harvey had paid Dewey in full for the lease and certain equipment. No complaint against this pretrial order has ever been made.
Trial was to the court. In view of the narrow issues raised on appeal not all of the evidence has been abstracted for us. That which has been presented consists of certain stipulations entered into by the parties, answers to written interrogatories, certain documentary exhibits, and oral testimony by Dewey, Dewey’s tax accountant, Harvey’s tax accountant and an officer of an Emporia bank. This evidence revealed the following:
In 1963 Harvey and Dewey Weaver learned that two Greenwood county oil leases held by C. B. Short and H. M. Lundquist were for sale. These were the Atyeo lease, covering 640 acres, and the Pixlee lease, covering eighty acres. After discussing the leases with Mr. Short the Weaver brothers decided to purchase them. Later Dewey made an offer to Short of $120,000 for the two leases. Short advised Dewey he and Lundquist would accept the offer of $120,000 on condition a contract with Short and Lundquist as sellers be executed in the amount of $95,000 and that the balance be paid to Short. The purchase offer was later reduced to $115,000 upon the same terms and was accepted. According to Dewey, both he and his brother were present when the final agreement was made with Short; Dewey wanted Harvey to give the $20,000 note to Short; however, Short stated he did not want Harvey’s note because Harvey was going to be financially involved in the purchase of the leases but he would accept Dewey’s note.
Later, on September 3, 1963, a written contract of sale was executed wherein Lundquist and Short were designated as sellers and Dewey as purchaser of the two leases. Harvey was not named as a party to this instrument. The contract stated the sum of $95,000 as the purchase price. Upon execution of the contract Dewey made a down payment of $9,500 (10% of the purchase price) which was deposited with an escrow agent along with the contract pending approval of title. Dewey gave Short a non-interest bearing note for $20,000 payable in forty-two months and to offset this Harvey gave Dewey a noninterest bearing note for $20,000 due in twelve months. Later, Harvey paid the remaining $85,500 of the purchase price of the two leases and Dewey assigned the two leases to him. The brothers considered the Pixlee lease worth $5,000. Harvey assigned it and $4,500 worth of equipment on the Atyeo lease to Dewey, this in consideration of the $9,500 advanced by Dewey. Dewey was to receive no other remuneration for his part in handling the transaction as Harvey was buying part of the property and Dewey was buying part of it.
At the end of one year Harvey renewed his note to Dewey by the delivery of a new note for $20,000 bearing interest at the rate of six per cent per annum. In 1965 Dewey turned this note over to an Emporia bank for collection. On November 18, 1965, Harvey paid the note by depositing with the bank to Dewey’s credit the sum of $21,390, being the principal plus interest in the sum of $1,390.00. (It may be noted that recovery of this $21,390 comprised the basis for appellant’s motion to amend). On the same date Harvey had Dewey sign a written instrument. This document, which was the alleged contract upon which appellant sued for specific performance, received in evidence as appellant’s exhibit, was as follows:
“To Whom This May Concern
“November 18, 1965.
“This is to certify that Harvey O. Weaver, Emporia, Kansas, has paid Dewey F. Weaver of Emporia Kansas in full on all indebtedness, including notes. And for lease, lease equipment as of November 18, 1965. And for /£ of % — 3% working interest in W3¿ of SW% of section 5-22-10 Greenwood County, Kansas. Sale of lease and oil runs effective July 1, 1966. With merchantable title. All bills paid in full on lease, for the sum of $23,135.00.” (Our underscoring.)
(The legal description is that of the Pixlee lease.)
Dewey testified he signed the document as a receipt but that when he did so it concluded with the sentence, “And for lease, lease equipment as of November 18, 1965”; it contained nothing thereafter except his signature; he signed the instrument at Harvey’s request so as to acknowledge that all of Harvey’s indebtedness to him had been paid. He testified that the language we have underscored in the exhibit was not in the document when he signed it.
Dewey has never paid the Short note. Dewey testified that in 1967 Short informed him he (Short) was being investigated by the internal revenue service and he did not want Dewey to tell the service he had received a $20,000 note from Dewey; Dewey replied he would not disclose the note unless forced to do so to protect himself. Later, agents of the internal revenue service questioned Dewey about the matter and he showed them a copy of the note he had given Short; in 1967 Dewey assumed, because of his conversation with Short, that he would not have to pay the Short note; after discussing the tax aspect with his accountant he thought he would have a resulting income and he reported the sum of $20,000 as income for the year 1967; he had never given Harvey any part of this $20,000; Harvey had never asked him for any part of it; Dewey requested Short to return the original note to him but Short indicated he would not do so.
In a discovery deposition taken by appellant Dewey gave the following testimony:
“Q. Is the note that you executed to Mr. Short outstanding and still owing, in your opinion?
“A. As far as I am concerned, it is.
“Q. Do you know — has Mr. Short indicated anything contrary to that to you?
“A. No.
“Q. Why doesn’t Mr. Short want this paid, if you know?
“A. He told me that it was because of tax problems. Examination, is what he referred to it as.”
Quizzed at trial about these answers in his deposition, Dewey testified he still didn’t know he wouldn’t have to pay the note; as far as he was concerned if Short would demand payment, he, Dewey, would have this obligation; the note was not outlawed; Dewey did not know whether Short had ever told his partner Lundquist about the $20,000 note and Lundquist may not have known about it.
Harvey’s tax accountant testified Harvey’s 1965 tax records indicated he had paid $120,000 for the Atyeo lease and had sold the Atyeo lease for $140,000 plus retention of an overriding royalty.
By stipulation the parties agreed Lundquist would testify, if called, that the sale of the leases was made for the sum of $95,000 with no other consideration involved to his knowledge.
The record also contained certain answers by Short to appellant’s written pretrial interrogatories, reading in part as follows:
“Plaintiff’s Question No. 6:
“State all business transactions that you have had with Dewey F. Weaver in the last ten years.
“A. I don’t recall.
“Plaintiff’s Question No. 7:
“Were you a part owner of an oil lease covering the following described property, to-wit: [the realty subject to the Atyeo and Pixlee leases]”
“A. To answer that correctly, I’d have to check the records there of the protector leases I own. I signed an affidavit, but I don’t remember it.
“Plaintiff’s Question No. 8:
“What was your interest in the lease covering the above mentioned real estate?
“A. I was a half-interest owner.
“Plaintiff’s Question No. 10:
‘What was the other owner’s name?
“A. Me and Lundquist own it. H. M. Lundquist.
“Plaintiff’s Question No. 11:
“Did you and H. M. Lundquist of Tulsa, Oklahoma, sell the lease covering the above mentioned real estate to either Dewey F. Weaver or Harvey O. Weaver in September of 1963?
“A. Yes, we sold it to them.
“Q. If so, to whom was it sold?
“A. It was sold to Weaver Brothers.
“Plaintiff’s Question No. 13:
“What was the total sale price and to whom were transfers issued?
“A. I don’t remember that. I thought it was a hundred and ten thousand, and they say it’s ninety.
“Plaintiff’s Question No. 14:
“Did you pay any commission to anyone in connection with the sale of the lease covering the above mentioned real estate?
“A. No.
“Plaintiff’s Question No. Id:
“Did you or H. M. Lindquist receive any other consideration for the sale of the lease. . . .
“A. No, ma’am
“. . . or were you tendered any other considerations of any nature?
“A. No.
“Plaintiff’s Question No. 16:
“Where were you paid the total consideration for the sale of the lease?
“A. I can’t answer that.
“Plaintiff’s Question No. 17:
“Do you know from your own knowledge if Dewey F. Weaver received any commission, finders fees, or other considerations from anyone other than you and II. M. Lundquist in connection with the transaction involving the sale of lease on the above mentioned real estate?
“A. I can’t answer that. I don’t know.
“Plaintiff’s Question No. 18:
“Was the lease paid for in full at the close of the transaction in September of 1963?
“A. It was.
“Plaintiff’s Question No. 19:
“Did you sign the affidavit or instrument directed ‘To whom This May Concern’? State the date on which the instrument was signed.
“A. That’s one question I don’t remember.
“Plaintiff’s Question No. 20:
“Who prepared the ‘To Whom This May Concern’ instrument signed by you and at whose request did you sign the same?
“A. I don’t know.
“Plaintiff’s Question No. 21:
“Is Dewey F. Weaver indebted to you at the present time for any amount whatsoever?
“A. No.”
Short gave the following answers to appellee’s cross-interrogatories:
“Defendant’s Cross Question No. 1:
“Did you, on or about September 3, 1963, have delivered to you by Dewey F. Weaver, and have in your possession, a promissory note dated September 3, 1963, in the amount of Twenty Thousand Dollars ($20,000.00) made payable to C. B. Short, due thirty-two (32) months after date, bearing the signature of Dewey F. Weaver?
“A. No. He never did owe me nothing. I don’t know. Whoever got that up that they owed me $20,000. That’s more than I can figure it. They never owed me a cent.
“Defendant’s Cross Question No. 5:
“If Question No. 1 was answered negative, do you agree that in the event such a note is in existence that the same should be considered terminated, cancelled unenforceable and void.
“A. It should be void, shouldn’t it.
“Defendant’s Cross Question No. 6:
“Did Harvey O. Weaver call upon you in Magnolia, Arkansas, at some time after the completion of the sale of the Atyeo and Pixlee Leases in Greenwood County, Kansas, to Dewey F. Weaver in September of 1963?
“A. Harvey Weaver was in Magnolia, yes.
“Defendant’s Cross Question No. 9:
“State whether or not Harvey O. Weaver ever made an inquiry to you about the existence of a note in the amount of Twenty Thousand Dollars ($20,000.00) due to you from Dewey F. Weaver, and if so, when said inquiry was made.
“A. He never made any.”
Appellant also introduced into evidence two affidavits secured by Harvey, one by Lundquist which was sworn to on November 5, 1965, and one by Short sworn to on November 30, 1965. Each affidavit stated the total consideration for the purchase of the two leases had been $95,000.
Other testimony respecting alteration of the November 18, 1965, instrument (not material to this appeal) was offered. At the conclusion of all the evidence, and after all witnesses in the case had been excused,-appellant orally moved the court to amend the pleadings to conform to the evidence so as to recover the $21,390 paid by Harvey to Dewey. Appellant’s counsel did state he had no objection to a continuance to enable appellee to present evidence in opposition to the new claim. The trial court denied the motion to amend and rendered judgment for appellee, finding there had been a material alteration, as alleged by appellee, in the contract sued upon. In making its ruling the court discussed the evidence at length, several times characterizing the dealings revealed by it as peculiar and unethical, if not wanting in honesty, and indicating in a very realistic and objective appraisal doubt as to what had really occurred. The trial court also commented on the failure to have Mr. Short in court as a party in view of the relief requested. In denying the motion to amend the court stated it gave consideration to the evidence in support of the new claim but did not deem it sufficient to support the motion.
Appellant does not challenge the trial court’s judgment denying her specific performance; her appeal is only from the order denying her motion to amend the pleadings to conform to the evidence. She argues the order results in manifest injustice to her because the evidence disclosed appellee made a secret profit of $21,390 at Harvey’s expense.
K. S. A. 60-215 (b), pursuant to which appellant made her motion, provides;
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
It is well established that the granting of a motion to amend the pleadings to conform to the evidence lies within the sound discretion of the trial court. The right to amend to conform to the evidence is necessarily dependent upon the particular facts and circumstances, and the action of the trial court in granting or denying such leave is not subject to review except for abuse of discretion (1A Rarron and Holtzoff, Federal Practice and Procedure, Rules ed. [Wright], § 449; see also, Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P. 2d 219).
We recognize the rule that in furtherance of justice, amendments should be freely allowed to conform to the evidence, the theory being that where an issue has been tried by express or implied consent of the parties, the amendment procedure simply carries into effect that which the parties by their conduct have agreed to (see Gard’s Kansas Code of Civil Procedure, §60-215 [b], p. 82).
The trial court here specifically ruled the new claim was not an issue “tried by express or implied consent of the parties”, as contemplated by 215 (b). Our review of the record convinces us the court correctly appraised the situation. Certainly appellee never at any time, in any fashion, agreed to try the issue of the recovery of the $21,390. Appellant showed payment of that amount in her effort to claim entitlement to specific performance of the purported contract.
Appellant stated her new claim was based upon the theory of fraud or unjust enrichment. In excuse of her failure to raise these issues more timely, she says she was not previously fully apprised of the facts and was misled by certain statements in appellee’s discovery deposition to the effect he still owed the Short note. She argues her new claim is based on a complete change in appellee’s testimony at trial to the effect the note had been cancelled. We are unable to arrive at this interpretation respecting any significant variance between appellee’s deposition and his trial testimony. The fact he treated the Short note in a particular way for income tax reporting would not be determinative of his liability for the obligation. He could not, in this manner, unilaterally cancel a contract obligation. Appellee was called and testified as appellant’s first witness yet it was not until appellee had presented his evidence and all witnesses had been excused that the motion to amend was made.
About a week before trial counsel for appellant did state to appellee’s counsel he was considering amending his pleading to make some claim to a portion of the $20,000 and he wanted to know if that would cause delay in the trial. Being Informed such a motion would not cause delay, counsel for appellant later informed appellee’s counsel he was not going to request any such amendment. Appellee therefore did not produce his defense on the issue at trial. However, he points out the evidence did in fact reveal Harvey had full knowledge of the entire transaction respecting the purchase price of the two leases as disclosed by the -two affidavits secured by him, one by Lundquist dated November 5, 1965 — thirteen days before Harvey paid the $21,390 — and the other by Short dated November 30, 1965, and that Harvey did nothing about the situation and no suit of any kind was ever commenced until this action by the executor filed October 7, 1968. He further points out the new claim in any event would be barred by the applicable statutes of limitation —three years for an action based on unjust enrichment (K. S. A. 60-512) and two years after discovery for an action based on fraud (K. S. A. 60-513) — not having been presented until raised by appellant on April 16, 1969.
The situation appears to be this: Appellant, with full knowledge of the facts as to the propriety of the payment of the $20,000 additional purchase price, framed her lawsuit and went to trial upon her claim to a one-half interest in a lease (which by reason of considerable expenditure of development money by appellee had become a lucrative property). After presentation of all evidence appellant for the first time attempted to inject in the case a completely new and entirely different claim for relief. In making its denial order the trial court stated it had given consideration to the evidence relied upon by appellant but deemed it insufficient. Its journal entry of final judgment, after disposing of the claim for specific performance, recited that the court found “the evidence does not tend to support a claim for Plaintiff upon any other theory”.
In view of all the foregoing we cannot say the trial court abused its discretion in denying the motion to amend.
We have considered other matters urged in derogation of the order appealed from, but find nothing warranting further discussion.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
The sole question involved in this workmen’s compensation action is whether the provisions of K. S. A. 1967 Supp. 44-556, which authorize the district court in a workmen’s compensation proceeding to try the case de novo on the record and to render such judgment thereon as justice may require, violate the constitutional separation of powers doctrine.
Richard Gawith (claimant-appellant) sustained an accidental injury on April 1, 1968, which arose out of and in the course of his employment with the respondent, Gage’s Plumbing and Heating Co., Inc. (appellee).
The injury was caused when a stud gun accidentally discharged and drove a bolt through the claimant’s body entering into the lower part of the abdomen and leaving the body about three-eighths of an inch from the spine. The claimant was off work approximately six weeks and returned to his regular occupation where he worked steadily up to the time of the hearing. The testimony of the various doctors was not entirely consistent. The examiner, after hearing the evidence, entered an award of ten percent permanent partial disability, among other things not here material. Upon review the director adopted the examiner’s award. On appeal the district court of Saline County, Kansas, determined the appellate procedure outlined in K. S. A. 1967 Supp. 44-556, and the interpretations heretofore placed thereon by the Supreme Court, did not violate the separation of powers doctrine of the constitutions of the state of Kansas and the United States, and substituted its judgment reducing the award to five percent permanent partial disability, but in all other respects affirming the director’s award.
In his brief counsel for the claimant states:
“. . . It is from this substitution of the judgment of the District Court, for that of an administrative agency, without the finding of arbitrary, capricious or fraudulent acts or finding that the Director did not act within his jurisdiction or by not making a finding as to whether the evidence did or did not support the Director's finding, that the appellant [claimant] appeals.”
The portion of K. S. A. 1967 Supp. 44-556 material to this appeal provides as follows:
“Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the director to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the director. Such appeal shall have precedence over all other hearings except those of like character, and shall be heard not later than the first term of said court after the appeal has been perfected.
“On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require. . . .” (Emphasis added.)
The above quoted portion of the statute was enacted by the legislature in 1927 and has remained unchanged in the forty-three years since it was enacted, except that the word “director” has been substituted for the word “commissioner” as originally enacted.
Throughout the intervening years since 1927 this court has consistently held this statute to mean exactly what it says — that the district court has plenary power and jurisdiction to review the record and “grant or refuse compensation, or to increase or diminish any award of the director as justice may require.”
Under the workmen’s compensation act of 1927 the district court hears no additional evidence and sees no witnesses, but it has both the jurisdiction and the duty to make an independent adjudication as to the facts as well as the law; and except as otherwise bound by the statute itself, it may increase or diminish any award of the director (then commissioner) as justice may require. (Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818.)
In Coe v. Koontz, 129 Kan. 581, 283 Pac. 487, the court said:
“. . . Our statutes, above cited, relating to workmen’s compensation, provide an elaborate plan and a complete procedure, as was quite fully discussed in Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233. In controverted matters between claimants for compensation and employers the statute provides for the taking of all of the testimony before a commissioner of compensation. The person hearing this evidence may, or may not, be a lawyer. The party who feels aggrieved by his decision, and desiring the evidence to be considered by a jurist, may appeal to the district court where the hearing is had on ‘questions of law and fact.’ That is about as complete a hearing as can be had in any case. The findings and judgment of the district court are not limited by the fact of whether there was or was not fraud, misconduct or unfairness on the part of the commissioner of compensation. . . .” (p. 583.)
The grant of power by the legislature to the district court in 44-556, supra, as above quoted, includes the right to weigh the evidence in compensation cases. (Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402.)
Other decisions bearing upon the statute in question are Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396; Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456; Attebery v. Griffin Construction Co., 181 Kan. 450, 312 P. 2d 598; Place v. Falcon Seaboard Drilling Co., 186 Kan. 523, 350 P. 2d 788; and Fisher v. Rhoades Construction Co., 188 Kan. 792, 365 P. 2d 1101.
In a number of decisions this court has characterized the jurisdiction and power of the district court on such appeal as a “trial de novo on the record.” (Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P. 2d 41; Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235; Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796; and Landes v. Smith, 189 Kan. 229, 368 P. 2d 302.)
The claimant herein would have us overrule this rather substantial body of law extending over a period of nearly half a century on the ground that it violates the constitutional doctrine of separation of powers. He cites to this court no single decision to support his position, but argues in a commendable brief that the Kansas workmen’s compensation act is an administrative act which designates the director of workmen’s compensation as the director of that administrative body. (Citing K. S. A. 74-710.) He further calls our attention to the fact that the legislature has delegated legislative authority to the director of workmen’s compensation by granting him the power to make rules and regulations which have the effect of a statute when filed with the revisor of statutes. (Citing K. S. A. 44-573.)
Our decisions clearly show the functions of the workmen’s compensation director under the provisions of the workmen’s compensation act are those of an administrative agency vested with some powers that are quasi-judicial. (Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233.)
The claimant relies on Fougnie v. Wilbert & Schreeb Coal Co., supra, for the proposition that a workmen s compensation proceeding is not a lawsuit at all. The court there said:
. . But there is nothing in the statute which contemplates that the trial court is authorized to hear further evidence or try the proceedings de novo. Touching the legal query that if the district court cannot go into the real facts •of a case and grant a hearing de novo the statute may not be constitutional, it •should be a sufficient answer to remind counsel that proceedings under the workmen’s compensation act are not in a strict sense a lawsuit at all. They •are special proceedings essentially contractional in character, sanctioned and •encouraged by statute, but not compulsorily imposed on the parties. The workman and his employer may decline to adopt the terms of the compensation act to govern their relationship, and may adhere to such rights and remedies as are accorded them under the common law with its constitutional and ■statutory modifications. . . .” (p. 413.)
Apparently the claimant feels he is treading on thin ice to raise the constitutional question in this workmen’s compensation proceeding, because he argues the many attempts to invalidate the Kansas workmen’s compensation act on constitutional questions were all based on an assertion of individual rights as distinguished from federal or state rights. It has consistently been held that as to individual rights constitutional questions may not be raised concerning the workmen’s compensation act because it is contractual in nature. (Fougnie v. Wilbert & Schreeb Coal Co., supra; and see K. S. A. 44-542 and 44-543.) Here, however, the claimant insists he may raise the constitutional question challenging the workmen’s compensation act because he is asserting a federal or state right under the constitutional separation of powers doctrine.
Basically we are here confronted with a question of the district ■court’s jurisdiction, even though it stems from a constitutional challenge. In the workmen’s compensation act of 1927 the Supreme ■Court had no authority to entertain an appeal from the decision of the district court in a workmen’s compensation matter, and it was held the Supreme Court was without jurisdiction to review the decision of the district court. (Norman v. Consolidated Cement Co., supra.)
A resort to 44-556, supra, clearly demonstrates that we are here •concerned with the authority of the district court to substitute its judgment for that of the workmen’s compensation director. The •challenge of such authority on a constitutional basis clearly presents a jurisdictional question.
Here the claimant is in good standing to raise the jurisdictional -question. (See Kelly v. Grimshaw, 161 Kan. 253, 167 P. 2d 627; Dick v. Drainage District No. 2, 187 Kan. 520, 358 P. 2d 744; Williams v. Board of County Commissioners, 192 Kan. 548, 389 P. 2d 795; Lira v. Billings, 196 Kan. 726, 414 P. 2d 13; and 4 Davis, Administrative Law Treatise, § 29.09, pp. 163,165.)
For a thorough discussion of the separation of powers doctrine originating from the federal and state constitutions, see State, ex rel., v. State Office Building Commission, 185 Kan. 563, 345 P. 2d 674.
The Kansas Supreme Court has almost universally applied this doctrine of separation of powers to various appeal statutes providing for appeals from purely administrative tribunals, ruling that the court may not substitute its judgment on questions of fact for that of an administrative tribunal. Recent cases defining the court’s authority on appeal from decisions of purely administrative tribunals are: Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828; Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239; Lauber v. Firemen's Relief Association, 202 Kan. 564, 451 P. 2d 488; Goetz v. Board of Trustees, 203 Kan. 340, 454 P. 2d 481; and Keeney v. City of Overland Park, 203 Kan. 389, 454 P. 2d 456.
The epitome of the claimant’s argument is reflected in Lauber v. Firemen's Relief Association, supra. The claimant contends the district court on appeal in a workmen’s compensation case has authority only to determine (1) whether the director acted fraudulently, arbitrarily or capriciously in his findings of fact; (2) whether the findings of fact in the director’s award are supported by substantial competent evidence; and (3) whether the director’s action was within the scope of his authority. This, he argues, has been the rule in appeals from administrative tribunals with the exception of the workmen’s compensation director’s office.
In Rydd v. State Board of Health, supra, it was said the rule for the review of decisions from administrative agencies or tribunals applies to all except those that are essentially judicial matters. On this premise the claimant argues if the award of the workmen’s compensation director is essentially a judicial matter, so would be the award of the Firemen’s Relief Association, citing Lauber, supra. In Lauber it was held the district court did not have enlarged jurisdiction, but only such limited jurisdiction as had previously been imposed by law for the review of purely administrative matters. The claimant contends the analogy is real.
In Lauber, supra, the Firemen’s Relief Association of Salina, which administered the Firemen’s Relief Fund, was said to be a nonprofit, corporate, public body whose duties were defined by statute to administer public funds which it held in trust. These funds were administered by the Firemen’s Relief Association of Salina pursuant to legislative mandate, and it was concluded the decisions of the association were administrative in nature. In Lauber the court said:
“Nowhere has the legislature in making provision for the Firemen’s Relief Fund (K. S. A. 40-1701, ei seq.) indicated what should be paid to firemen who are injured or physically disabled in the discharge of their duties as firemen. Where a workman is injured or killed in the course of his employment in industry workmen’s compensation is provided under the workmen’s compensation act. There, however, the compensation to be awarded an injured workman or his dependents is spelled out in some detail. . . .
“Here the Firemen’s Relief Association contends the payment of relief to an injured or physically disabled fireman by reason of the discharge of his duties as a fireman is completely discretionary with the Association. Lauber, on the other hand, contends his right to relief is substantially equivalent to one’s right in a tort action to recover damages for the negligent acts of another.
“As we construe 40-1707, supra, neither of these extremes was contemplated by the legislature; that is, if it be assumed the expression ‘completely discretionary’ is intended to mean the right to deny any relief whatever.
“In construing 40-1707, supra, to determine the meaning of ‘relief’ it is well to take into consideration other benefits made available to firemen by the legislature. The benefits provided in K. S. A. 13-14a09 are concerned with permanent disability benefits. When a fireman in the performance of his duties as a fireman is ‘permanently injured or disabled’ ‘so as to render him unfit for the performance of his duties’ as a fireman, he is eligible for permanent disability benefits under the Firemen’s Pension Fund. The Firemen’s Relief Act (K. S. A. 40-1707) provides that all funds shall be held in trust ■and used for the relief of firemen injured or physically disabled in the discharge ■of their duties.
“We construe ‘relief’ as used by the legislature in 40-1707, supra, to mean the removal in whole or in part of the financial burden, hardship or distress of a fireman, his widow or dependents, resulting from injury or physical disability to a fireman in the discharge of his duties. Within reasonable limits, depending ■on the funds available and the circumstances of financial need resulting from such injury or physical disability to a fireman, the amount of financial assistance to be paid as relief to such fireman, his widow or dependents, falls within the discretionary power of the Firemens Relief Association to administer the fund.” (pp. 577, 578.) (Emphasis added.)
Similarly, in Rydd v. State Board of Health, supra, the administrative nature of the proceeding whereby licenses were granted by the state board of health to individuals for the operation of day care home for children was analyzed under the separation of powers doctrine, and it was held:
“By reason of the constitutional inhibition known as the separation of powers doctrine, the legislature may not impose upon the judiciary the function of a trial de novo o£ action of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.” (Syl. f 4.)
Our decisions, however, cannot be construed to hold that all administrative agencies exercise essentially legislative and administrative functions.
This is illustrated in Lira v. Billings, 196 Kan. 726, 414 P. 2d 13, where the court said:
“It is clear the problem here is to determine just what function is placed upon the district court in this type of hearing. Is it legislative? If so, the statute must be held bad. If it is judicial or quasi-judicial, then the constitution presents no limitation for it provides the legislature can confer upon the district court whatever jurisdiction it may choose (Constitution, Article 3, Section 6).
“We state at the outset, and for reasons which should become apparent, that we limit this determination to appeals from suspension and revocation orders based on refusal to submit to chemical tests for blood alcohol content pursuant to K. S. A. 8-1001. The statute calls for a trial de novo with a further provision that the licensee has the right of trial by jury upon demand therefor. This statute has been interpreted by this court as meaning that the only issue before a district court on such an appeal is the reasonableness of the failure of the petitioner to submit to the chemical test (Marbut v. Motor Vehicle Department, 194 Kan. 620, 400 P. 2d 982).
“Thus there is a standard or guideline plainly present in the statute— reasonableness of the failure to submit to the chemical test — which must be kept in mind. We recognize that the discretion of a court is not to be substituted for the discretion of an administrative agency, and further, that the business of licensing is generally to he regarded as an administrative function (see State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408), and we are not disposed to commit courts to tire business of licensing. But here the discretion of those charged with administering the law in the first place is circumscribed by the statutory criterion that the failure to submit to the chemical test must be unreasonable before suspension or revocation is to be applied. Courts and juries deal constantly, in many ways, and have traditionally, with determining in retrospect whether the criterion of reasonableness has been met under the particular circumstances. The term reasonableness is one with a meaning well developed and familiar to courts, and courts and juries cannot be said to be lacking in qualification or expertise to make such determination as is here involved. Such determination does not involve the formulation of policy normally associated with the legislature. The legislative power was exercised when the legislature provided for a review in the district court, the particular scope of the review being within legislative competence so long as it is judicial in nature. The review provided is one appropriate for judicial determination. The statute does no more than empower the court, and the jury when called into play, upon consideration of the evidence, to determine the question of reasonableness of the refusal. The statute further prescribes that testimony be taken and an examination made into the facts. This necessarily calls for a weighing of the evidence pro and con where controversy exists and a determination based on a preponderance thereof. Weighing evidence and determining questions of reasonableness have always been regarded as judicial functions. Everything considered, we believe and hold that the review provided is sufficiently judicial in character, and that the court and jury are not called upon to exercise legislative power in violation of the separation of powers’ doctrine, under the specific facts presented in this case (see 2 Am. Jur. 2d, Administrative Law, § 581; 16 Am. Jur. 2d, Constitutional Law, § 222).” (pp. 730, 731.)
Basically, the point asserted by the claimant is that there is no valid ground for any distinction between the decisions rendered by one administrative agency and the determinations of all other administrative bodies; that all of the administrative rulings must be reviewed consistent with the limited scope of review applied by the judiciary to administrative rulings as indicated in Lauber.
Our examination of the authorities bearing on this point convinces us there is a basis for distinction between the functions of different administrative agencies. Many cases hold that some administrative bodies perform functions which are judicial or quasi-judicial, while other agencies perform essentially legislative or administrative functions.
Among the cases in Kansas and in other jurisdictions holding that an administrative body can exercise judicial or quasi-judicial powers are the workmens compensation cases, where the administrative agency was created for the purpose of making awards to injured workmen under workmen’s compensation or industrial insurance laws. Cases which have held that certain other administrative bodies perform essentially legislative or administrative functions include Bodine v City of Overland Park, supra; Rydd v. State Board of Health, supra; and Lauber v. Firemen's Relief Association, supra.
The report of the American Bar Association’s special committee on administrative law, 58 A. B. A. Rep. 407, classified administrative agencies according to the nature of the particular function performed by each. The committee distinguished between functions and said:
“In general, it may be said that administrative law results from the reposing of what are essentially legislative or judicial functions (or both) in an official or board belonging to the executive branch of the government or in an independent official or board. . . .” (p. 410.)
It is apparent from the cases that a distinction is recognized between ‘legislative” and “judicial” functions performed by different administrative officers or bodies, and that the scope of judicial review of the actions of administrative agencies does vary with the subject matter of the review or the function of the agency.
The remaining question is whether the determinations made by the workmen s compensation director under the Kansas workmen’s compensation act are essentially legislative or administrative or are essentially judicial or quasi-judicial. If the functions performed by the director (and his examiners) are essentially legislative or administrative, under Lauber the district court did not have authority to review the director’s decision on the facts and substitute its judgment for that of the director. But if the director’s functions are essentially judicial, the statute under consideration giving the district court authority to try the case de novo on the record to determine the facts and the law was constitutional, and the trial court did not err in denying the claimant’s challenge to its jurisdiction. When courts are confronted with the problem of determining whether an administrative agency performs legislative or judicial functions, they rely on certain tests to aid in classifying the agency’s functions. One such test is whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative agency must make. Another test is whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body. (Old Colony Tr. Co. v. Comm'r Int. Rev., 279 U. S. 716, 73 L. Ed. 918, 49 S. Ct. 499; State ex rel. Attorney-General v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; Floyd v. Dept. Labor & Ind., 44 Wn. 2d 560, 269 P. 2d 563; 42 Am. Jur. 368, Public Administrative Law, § 60; and cases cited therein.)
The classic statement setting out the abstract test to be applied by courts in distinguishing the judicial power from legislative power when examining administrative agencies was made by Justice Holmes speaking for the court in Prentise v. Atlantic Coast Line, 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. He there said:
"... A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. . . .” (p. 226.)
In applying the tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer, board or agency which performs it, that determines its character.
In applying the foregoing tests we conclude from the history of workmen’s compensation acts in this and other jurisdictions that a court could have been given the duty of determining whether a workman was injured while acting within the scope of his employment and adjudicating the extent of his injuries. (Lira v. Billings, supra; Floyd v. Dept. Labor & Ind., supra; and see Roles Shingle Co. v. Bergerson, 142 Or. 131, 19 P. 2d 94; and State v. Mechem, 63 N. M. 250, 316 P. 2d 1069.)
In England, where the first workmen’s compensation act was enacted in 1897 and then revised by the workmen’s compensation act of 1906, the act is now and always has been administered through the courts. (Dodd, Administration of Workmen’s Compensation, pp. 62, 63; and Knowles, The Law Relating to Workmen’s Compensation [3rd Ed.] p. 267.) Since the English acts preceded the first American workmen’s compensation acts, the American compensation acts contain many of the essential features and phraseology of the British and Canadian acts. Thus, the British and Canadian decisions interpreting their own acts often throw light on the interpretation of the American acts. (I Schneider, Workmen’s Compensation Text [Perm. Ed.] § 9, pp. 24, 25.)
Consequently, the courts in this state could have been charged originally with the duty of finding the facts which the director (and his examiners) -under the workmen’s compensation act found in this case.
Historically, the function performed by the director (and his examiners ) is one which the courts performed prior to the passage of the workmen’s compensation act of Kansas in 1927. Originally, in the act of 1911 workmen’s compensation matters were handled as ordinary lawsuits in the district court. This was the rule until the need for an administrative remedy in workmen’s compensation became apparent so that these matters could be shifted to an administrator or administrative body rather than the district court. In 1927 the commission of labor and industry was created by the legislature to administer the law. This was later amended to create the office of workmen’s compensation commissioner to administer the law, and again amended so that at the present time the work men’s compensation director administers the law. But each time the legislature wisely retained court control by providing for plenary review in the district court of the commissioner’s and director’s decisions in such claims by the provisions of 44-556, supra, and its predecessors.
It must therefore be said the functions now performed by the director under the Kansas workmen’s compensation act historically were performed by the courts, and thus can truly be classed as judicial.
Applying the functions of the director of workmen’s compensation to the definition of judicial power given by Justice Holmes in Prentis v. Atlantic Coast Line, supra, we find that the director investigates, declares and enforces liabilities as they stand on past facts (the injury of a workman while engaged in the course of his employment) under existing laws (the workmen’s compensation act).
It seems clear to us the director of workmen’s compensation in Kansas performs functions which are essentially judicial, and the office of the director should be classified as a quasi-judicial agency.
In 1954 the Supreme Court of the state of Washington had the identical issue here presented before it in Floyd v. Dept. Labor & Ind., supra. Among other things it held:
“Since the board of industrial insurance appeals performs an essentially judicial function, the superior court, on an appeal from a decision of the board, has authority under RCW 51.52.115 to allow a trial de novo of the case upon the record made before the board; and such statute, in providing for such a trial, does not unconstitutionally delegate legislative or administrative functions to the superior court.” (Syl. ¶ 7.)
We find the opinion persuasive and, insofar as applicable, have adopted its reasoning herein.
Under the creative statute here applicable (K. S. A. 1967 Supp. 74-710), the only qualification for the office of director is that “he shall before his appointment have had practical knowledge of the theory of workmen’s compensation.” The examiners (K. S. A. 1967 Supp. 44-551) are required to have no qualifications at all, except appointment from the director. Although they may be lawyers, neither the director nor examiners were required to be. While they regularly deal with claims for alleged bodily injury disabilities, none of them is required to be a doctor or a member of the healing arts profession. They are not required to have the necessary judicial training or temperament to enable them to weigh and evaluate evi dence, or discern the credibility thereof or to sift fantasy from fact. This was observed in Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456, where the court said:
“. . . The commissioner is not required to be a lawyer and the statute {G. S. 1935, 44-523), appropriately provides the commission shall not be bound by technical rules of procedure. In order to insure reception by the commission or examiner of all evidence germane to every issue involved, this court has definitely held the examiner or commissioner must receive all evidence pertaining to any question in issue even though he may entertain doubt concerning its competency. (Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, 166, 45 Pac. 861; Brown v. Shellabarger Mill & Elev. Co., supra [142 Kan. 476, 50 P. 2d 919]; Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 837-840, 73 P. 2d 1032.) In case the examiner excludes testimony considered vital on any issue the aggrieved party is not without recourse, provided he acts timely. In Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396, it was stated:
“ 'Considering these points together, it is of course both the statutory and moral duty of the commissioner to give the claimant and his adversary a fair opportunity to present their evidence; and the court sees no reason why tendered evidence excluded by the examiner could not be put in the form of affidavits or depositions and made part of the transcript which goes to the district court for its independent decision on the law and the facts.’ . . .” (pp. 299, 300.)
K. S. A. 1967 Supp. 74-710 and 44-551 were amended in 1969 to require the director, assistant director, examiners and special examiners to be attorneys and admitted to practice law in Kansas. (L. 1969, ch. 246, §§ 3 and 4.)
The legislature in K. S. A. 1967 Supp. 44-556 wisely vested the district court with plenary power to review the record of the director’s award in a workmen’s compensation case on timely application made by any party aggrieved.
In conclusion we hold the director under the workmen’s compensation act performs a function which is essentially judicial. Consequently, the district court did have jurisdiction under K. S. A. 1967 Supp. 44-556 to “grant or refuse compensation, or to increase or diminish any award of the director as justice may require.” The section of the statute under consideration does not unconstitutionally delegate legislative or administrative functions to the judiciary. Therefore, the trial court did not err in reducing the temporary total disability of the claimant from ten percent to five percent, a decision which is supported by substantial competent evidence in the record.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal by the condemner from a verdict in a condemnation case.
There is but a single question requiring our consideration — was it error to admit into evidence the testimony of the landowners and exhibits showing the gross income from the business operated on or about the condemned property for the purpose of showing the value of the property and the damages to the landowners?
The land was being condemned for street and highway purposes by the city of Bonner Springs, Kansas. During the years 1963 to 1967, the appellees owned and occupied the real property, a part of which was condemned in this action. The property consisted of a tract of land with a 225 foot frontage and 125 feet deep. It contained a brick and tile building 50 feet wide by 105 feet deep which had been an old silent movie theater. Prior to the time the appellees occupied the property it had stood vacant for six or seven years. Improvements were made over the course of several years including the addition of a paint and body shop. At the time of the condemnation the Colemans engaged in the business of selling farm equipment, trucks and parts, and rented and repaired farm equipment and trucks. They also sold ITCO parts, appliances and hardware. The largest dollar volume of the business consisted of the farm equipment and truck sales.
At the trial in the court below the landowners first introduced their evidence.
Mr. James R. Coleman, the owner of the land and the operator of the business thereon, testified in substance to the facts above. He further testified:
“Q. All right, sir. Without going into those specific figures, Jim, do you have any indication as to how your store was doing, generally speaking, in the area?
“A. Do you mean in dollars?
“Q. No, stay away from dollars. Did you win any awards?
“A. For the last four years — it could have been five, I am not sure — we have been the top-volume dealer for the J. I. Case in the Kansas City branch, and that covers all of Kansas, part of Colorado, part of Missouri, and part of Arkansas.”
Mr. Coleman made no attempt to give an opinion as to the value of the land condemned or the damages resulting.
Mrs. Golden Coleman, wife of James R. Coleman, next took the witness stand. She testified that she was responsible for the bookkeeping and had prepared an itemization of the gross income from the business broken into different categories. She also had a final yearly total for the gross income for the year 1967. These calculations were introduced as exhibits.
The exhibits showed the business produced for 1963 a gross income of $607,000.00, for 1964 a gross income of $706,000.00, for 1965 a gross income of $885,000.00, for 1966 a gross income of $1,229,000.00 and for 1967 a gross income of $1,229,000.00.
The exhibits also divided the gross income for 1966 into the following categories:
“Farm machinery and trucks — Sales and rentals............. $1,026,416.00
Machinery Parts ...................................... 105,545.00
ITCO Parts .......................................... 15,364.00
Appliances and Hardware.............................. 40,967.00
Labor............................................... 37,490.00
Miscellaneous ........................................ 3,620.00”
The exhibits further showed that the gross income of the business increased 100% between 1963 and 1967.
Golden Coleman made no attempt to adjust the gross income to reflect estimated values. Neither did she give any opinion of property values or damages to the landowners.
Although the annual gross income of $1,229,000.00 was left dangling before the jury, it does not appear that the figure was ever used to prove any point in the case.
Appellees’ first expert witness testified:
“Q. Would you tell the jury specifically how you used the gross income and the percentages to arrive at your valuation on the income approach?
“A. After checking the gross volume that the business was doing and analyzing the business, it was my opinion, due to additional land, that the tractor sales and the machinery sales, although it was the largest volume of the business, I assigned no percentage rental to that; I think that would be speculation, I think to a degree it’s order-taking and it’s a wonderful operation, but I think if Mr. Coleman was a tenant of mine, I don’t think he would agree to pay me percentage rental on his farm machinery. . . .”
He further testified on cross-examination:
“Q. Mr. Stanley, if I understood you correctly — there has been considerable mention of the implement business and of the additional lots. For the purposes of your income approach only, is it a correct statement that you used approximately one-fifth of the total gross income of the Colemans for purposes of establishing your income approach evaluation?
“A. It figures approximately one-fifth — what I used, other than the implement business — the sales of implements, new and used implements.
“Q. So, in other words, that $1,000,000.00 that they had in addition to that, you didn’t even consider for purposes of figuring your lease rental?
“A. No, it was attributed to other factors.”
It would appear that the witness did not use the $1,000,000.00 gross income derived from the implement business, although it was shown in appellees’ exhibits introduced in evidence.
Appellees’ second expert witness testified that he arrived at a figure of $76,094.00 as die value of the property before die taking based on cost of replacement less depreciation. He also used the gross income approach and arrived at a comparable figure of $86,-800.00. We quote his testimony in part:
“Q. Now, when you have a conflict in the two methods of approach that you used in the evaluation of this property, Mr. Vickers, how do you reconcile this? Tell the jury what you feel are the damages to the Colemans.
“A. Well, the way that I reconcile this is because there is a considerable disparity in its valuation. The operation that Mr. Coleman conducted at this point had somewhat to do with location of part of his business in a section not at this location.
“Q. Would that be the rental lot that we referred to earlier?
“A. The rental lot we referred to. I took that into consideration, also, in my value before, but even taking it into consideration and deducting a large figure for the capitalizing of the rent that he [landowner] paid for that lot of $46,666.00, I still arrive at its valuation indicated by capitalization of $86,000.00. This would indicate that it’s a very valuable property for his business. Generally speaking, the cost of replacement less depreciation should be the ceiling of value; this should be the ceiling or the topmost value; so, therefore, if I am to arrive at a valuation of this property, I would have to go back to the cost of replacement less depreciation, because this is what I think that this property could be replaced for — $76,094.00—so that it’s my opinion that the value of the property, irrespective of the higher figure due to the income or capitalization approach — the value of the property before the taking was $76,094.00.” (Emphasis ours.)
We are not informed of the exact amount the witness deducted from the gross profits before he attempted to arrive at his rental figure for the purpose of capitalization, but we are informed that it was a large figure. We are also informed that he discarded the value so arrived at in favor of the value arrived at by cost of replacement less depreciation.
Appellees’ third expert witness testified:
“Q. Excuse me, Mr. Martín, maybe I misunderstood. You are indicating to the jury you did not use the income approach, sir?
“A. That’s correct, I did not use it because both he and his wife worked in their business and I don’t think it would be a fair approach because his sales far exceeded the average business of that nature.”
He also mentioned the gross sales and stated:
“. . . Now, if I come in here with an income approach, I think it would be a little bit ridiculous; in other words, it would be lots higher than what I am using.”
He did not use an income approach.
The appellant contends it was error to admit into evidence the landowners’ testimony and exhibits showing gross sales where gross sales are not competent evidence and particularly where the evidence is not necessary to support an appraisal value or used by experts in arriving at their value of the land.
We are forced to agree.
The narrow limits of appellant’s objection must be understood. No objection is made to expert witnesses ascertaining the gross income of the business being conducted on the condemned land and using it in arriving at an estimated value by the gross sales method. The appellant’s objection goes to the submission of the gross sales directly to the jury for their independent consideration.
This is well illustrated in a colloquy between court and counsel:
“Mr. Corson: I don’t think it’s improper for the appraisers to take this into consideration in arriving at whatever assumed rental figure they arrive at; however, I think it’s improper to flaunt these figures showing thousands and thousands of dollars worth of business, which is not attributable to the land, before the jury; it is highly prejudicial and inflammatory.
“Mr. Corson: I have no objection to the appraisers learning of that in the course of their investigation and taking it into consideration. My objection is putting it directly in evidence before the jury.
“The Court: If I make a mistake on this, it could be rather fatal. If you, Mr. McDonald, representing the landowners, feel sure of your position, I’ll go along with you and let you show it, this with the understanding that I take no responsibility for it. I don’t know for sure whether it’s proper. If it’s improper, I would guess it would be reversible error.
“Mr. Corson: It certainly would.”
This court has approved the use of the gross sales method by expert witnesses in arriving at an estimated value of land affected by eminent domain proceedings. In Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539, at page 783 of the opinion we quoted with approval from State Roads Com. of Md. v. Novosel, 203 Md. 619, 102 A. 2d 563, as follows:
“ ‘With the increasing vogue of leases of business property reserving rentals computed on a percentage of the volume of business transacted by the tenant, it would be artificial and illusory to reject an expert opinion of rental value that takes into account the volume of business which experience has shown a particular piece of property is capable of producing; and, of course, the resulting profits may be, if anything, even more pertinent to the question of value. We find no basis for the objection either to the testimony of the expert, or to that of the owner who as such, irrespective of other qualifications, is permitted to give his estimate of the value of his holdings. Bailey v. Ford, 151 Md. 664; Pennsylvania Threshermen & Farmers Mutual Casualty Ins. Co. v. Messenger, 181 Md. 295, 302; Jackson v. Linthicum, 192 Md. 272, 276; 3 Wigmore on Evidence (3rd Ed.), Sec. 716.’ (pp. 624, 625.)
“See, also, Korf v. Fleming, 239 Ia. 501, 32 N. W. 2d 85; L. & N. Turnpike Co. v. Creveling, 159 Tenn. 147, 17 S. W. 2d 22; and H. & H. Supply Co. v. United States, 194 F. 2d 553.”
Also, in Jahr on Eminent Domain, § 147, p. 226, it is said:
“At the outset, it is important to bear in mind that the courts distinguish between the income from a business conducted on real estate and the income from rents that the real estate produces. Tire former income is generally excluded as we shall show below. But the income from rents is admissible. To be sure, rental income from real estate is to some degree income from a business, and the net income from it is actually the profit. Nevertheless, this income is more likely to continue when the property is sold in the market; whereas a business conducted on the property by the owner is generally excluded from the sale. The business there does not go with the sale of the property.” (Emphasis supplied.)
A naked statement of gross income is too uncertain and depends upon too many speculations and contingencies to safely be accepted as evidence of the usable value of property upon which a business is carried on.
This court has never recognized the right to submit directly to the jury evidence of gross income from which the jury is to-estimate the value of real property or the damage to the landowners because of the taking in an eminent domain proceeding.
The gross profits of a business depend upon the extent, character and manner in which it is carried on. One man may prosper while another goes bankrupt conducting the same business upon the same property.
The rule and the reasons for it are well expressed in Nichols on Eminent Domain, Vol. 5, § 19.3 [1], p. 19-48. We quote:
“If the owner of property uses it himself for commercial purposes, the-amount of his profits from the business conducted upon the property depends so much upon the capital employed and the fortune, skill and good management with which the business is conducted, that it furnishes no test of the-value of the property. It is, accordingly, well settled that evidence of the profits of a business conducted upon land taken for the public use is not admissible in proceedings for the determination of the compensation which the owner of the land shall receive. The profits of a business are too uncertain, and depend on too many contingencies safely to be accepted as any evidence-of the usable value of the property upon which the business is carried on. Profits depend upon the times, the amount of capital invested, the social, religious and financial position in the community of the one carrying it on, and many other elements which might be suggested. What one man might. do at a profit, another might only do at a loss. That the owner has made profits in his business in the past is no indication that he will continue to make them in the future.” (Emphasis supplied.)
The author cites federal cases and numerous cases from twenty-two states as authority for his statement. We will not extend this opinion by repeating the citations here.
We must conclude that as a general rule the gross profits from a business, standing alone, furnish no test of the value of the property.
There are, of course, exceptions to the rule but none of the exceptions are present here and it would be out of place for us to attempt to list them.
It must also be understood that once a witness has qualified as an expert, a court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters can only be challenged by cross-examination testing the witness’ credibility.
An expert witness may take the gross profit from a business and reduce it to rent and then capitalize the rent for the purpose of arriving at the value of the property on which the business is located. However, it is to be expected that the expert will be well enough informed that he will recognize the uncertainties and contingencies and eliminate them or make proper allowances.
What the expert witnesses for appellees did in this case presents a fine example — one of appellees’ witnesses deducted $1,000,000.00 from the gross income figure submitted because it was income from the sale of tractors and machinery conducted on other land and consisted largely of order-taking, and another of appellees’ witnesses deducted a large figure from the gross income for similar reasons.
Appellees suggest that even though the evidence of gross profits was erroneously admitted, there was substantial competent evidence submitted which supported the verdict and therefore there was no prejudicial error.
The verdict submitted was within the range of the estimates submitted by appellees’ witnesses but it was far over appellant’s estimate as to amount of damages to the landowners, otherwise it would not be here. In determining whether error in the admission of evidence is prejudicial it is proper to examine the evidence in the light of the entire record. (State v. Appleby, 155 Kan. 871, 130 P. 2d 568.) We are impressed with the trial court’s expression in stating some doubt as to the admissibility of the evidence— “If it’s improper, I would guess it would be reversible error.”
It would be presumptuous for us to state, as a matter of law, that the jury was not prejudicially impressed by evidence of an annual gross income of $1,229,000.00 from the business while only one-fifth of the amount was to be attributed to the real property affected by the condemnation proceedings.
The judgment is reversed with instructions to grant a new trial.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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Per Curiam:
It was manifest error for the court to sustain the demurrer to the defendants’ evidence. There was some evidence to prove a defense to the note, and there was abundant evidence to prove notice to the bank. One of the defendants testified that he was at Houston, Tex., in April, 1906, and that he went into the bank and inquired about the note of the person at the window of the receiving or paying teller, who told him to go and see the president of the bank in his office; that he went through the rooms occupied by the tellers, cashier and others, and was directed into a room which bore the sign “President.” He found a man there and asked if he was president of the bank. The man said he was. When he inquired if the bank held the note, describing it, the man said “I will look and see,” and went into the other rooms, where the tellers and cashier were, and after a little while re-burned and said: “We have no such paper.” This defendant then notified him not to purcháse the note because it had been paid. If this were not enough, the witness testified in addition that he had been in the bank once before and found the same man in the same office, who was introduced to him as the president of the bank.
The doctrine that agency can not be established by proof of the acts or declarations of the supposed agent has no application. The agency was clearly established by other competent evidence. The statements of the person actually occupying the office of president and transacting the bank’s business were verbal acts contemporaneous with his conduct as an officer of the bank and part of the res gestse, and therefore were admissible against the bank. It would seem unnecessary to cite authorities in support of the proposition that there was some evidence that the person the witness talked with was the acting president of the bank. Being uncontradicted, it was sufficient evidence to warrant a finding to that effect.
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 brought suit to recover the amount of a policy of insurance issued by the defendant on the life of Frank E. Quinn. In connection with his application for insurance the insured stated in answer to a question propounded to him by the defendant’s medical examiner that he had never had consumption. He also returned answers to questions relating to illness, medical attendance, and consultation with physicians, as follow:
“3. Give full particulars of any illness you may have had since childhood and name of medical attendant or attendants.
“Doctor Miller; smallpox; three years ago; Topeka, Kan.
“6a. Name and residence of your usual medical attendant?
“Have none.
“6b. When and for what have his services been required ?
“Except smallpox, not since childhood.
“7. Have you consulted any other physician? If so, when and for what ?
“No.”
The insured agreed that the answers and statements in his application, including those made to the medical examiner, should be the basis of the contract of insurance, that such statements and answers were full and true, and that any false, incorrect or untrue answer or suppression or concealment of facts in any answer should render the policy null and void. The policy provided that it was issued in consideration of the answers and statements contained in the application, that all of such answers and statements were made warranties and a part of the contract, that if any- answer or statement were not true the policy should be void, and that the contract was completely set forth in the policy and application, taken together.
The defendant resisted payment on the ground the insured had consumption when he applied for insurance ánd that the answer to question No. 7 was false. Evidence was introduced upon which the jury might very well have found the insured had consumption before and at the time the contract was made. Evidence was also introduced showing that on October 6, 1902, the insured was admitted to the Atchison, Topeka & Santa Fe Railway Company’s hospital at Topeka upon the recommendation of the hospital surgeon, who stated that he was then suffering from tuberculosis pulmonum; that his history was then taken and a physical examination of him made by one of the hospital physicians, with the result that his disease was diagnosed as pulmonary tuberculosis. It was further proved that upon January 14, 1903, and January 24, 1903, the insured consulted Dr. S. G. Stewart, of Topeka, professionally, who examined him and diagnosed his case as inflammation of the bronchial tubes, indigestion, and catarrhal condition of the stomach and bowels, but the doctor feared consumption and advised him to go to Colorado for his health. The application for insurance was made on January 29, 1903. The insured died on March 14, 1904, of acute tuberculosis.
The court instructed the jury as follows:
“The word ‘illness,’ as used in question No. 3 above, means a disease or ailment of such • character as to affect the general soundness and health of the system seriously, and not a mere temporary indisposition which does not tend to undermine or weaken the constitution of the insured.”
“The defendant claims that the insured consulted with Dr. S. G. Stewart on two occasions prior to the application for insurance, and therefore that the insured did not truthfully answer question No. 7, above quoted, with reference to consulting any other physician.
“The mere calling into a doctor’s office for medicine to relieve a temporary ailment or indisposition or the calling at the home of the insured by a doctor for the same purpose can not be said to be consulting a physician within the meaning of question No. 7. If the insured consulted Doctor Stewart prior to the making of the application for some illness, it was the duty of the insured to so state in his answer to this question, but if in calling upon Doctor Stewart he simply desired relief from some ailment or indisposition not amounting to illness or disease as herein explained, then the insured could truthfully answer this question as he did. It will be for you to determine from the evidence in this case whether the insured answered question Ño. 7 truthfully or not.
“It is the duty of a person applying for life-insurance under an application such as was made by the insured •in this case to truthfully answer all questions therein contained to the best of his ability; but in answering a question calling for information concerning previous illness or medical attendance it is a matter' of no importance whether or not the applicant at some previous time may have had some temporary ailment or indisposition, not serious or substantial in its nature, but soon over with, such as headache, bellyache, cold, or any such temporary disorder or disturbance of the physical health as would ordinarily yield to what is called home treatment. The applicant is not expected to remember all such ailments he has had during his life, or to disclose the same in his answers to such questions.
“The purpose of the insurance company in asking questions and securing answers in the application for insurance is to obtain information as to the kind of risk it is assuming when it issues a policy to the applicant.
“As to question No. 7 in the application, which the insured, Frank E. Quinn, answered to the effect that he had not consulted any other physician, I instruct you that this question calls only for consultations with respect to matters material to the risk and not for consultations in respect to some indisposition not properly called a disease. The burden is upon defendant to establish the falsity of any answer of the insured and the truth of any fact which would constitute a breach of the warranty upon which defendant relies.”
The jury found for the plaintiff, and judgment was entered on the verdict. The defendant prosecutes error, and among other matters assigns as error the giving of the instructions quoted.
It is true that the word “illness,” as used in question No. 3 of the medical examination, is open to interpretation. No man ought to give lasting regard to all his little ailments, bruises, aches and pains; he can not fix them in his memory if he would; they do not affect the risk, in life-insurance, and the insuring company cares' nothing about them. Therefore illness clearly means something more than a temporary indisposition, slight and trivial in its nature, which does not really affect the soundness of the system, substantially impair the health, materially weaken the vigor of the constitution, or seriously derange the vital functions, it is also true that consultation with a physician implies more than a casual meeting with a doctor and a passing remark in reference to some bodily state or condition. Incidental conversations of this character are not kept in mind and are inconsequential when considered in relation to a life-insurance risk. But if a man, from motives of his own, has sought and obtained an interview with a physician regarding the state of his health, the fact of - a consultation with the physician does not depend upon the gravity of the subject of the interview, as the court instructed the jury. A man may believe that he is in sound health, but he desires an expert opinion upon the subject. He may think he detects certain disturbances of his normal condition which apparently are not serious, but he desires to know what those disturbances indicate. He goes to a physician, tells his story, answers questions, submits to an examination, receives advice, perhaps is given medicine or other treatment, perhaps is assured there is nothing the matter with him, and is sent away without more. He has consulted a physician, whether he was sick or well. The man may have been wise or foolish to consult a doctor. Bread pills may have been an efficacious rem edy for him or he may have been stricken with a fatal disease. The fact of the consultation remains, and can not be negatived by any showing whatever relating to the true state of his health.
Very often men who are not strictly honest seek insurance on their lives, and a life-insurance company may properly be allowed to take full precautions against death-bed insurance. It is entirely reasonable that such a company should ask an applicant for insurance if he has consulted a physician. The question is simple and unambiguous. It is not like questions relating to illness, which may call for the opinion and judgment of the applicant upon a debatable matter hard to decide. It involves nothing which the applicant can not answer categorically out of his own personal knowledge. It relates to a fact which may be recollected as well as an illness. The question is important because if an affirmative answer be given the company may make an investigation and ascertain the exact truth regarding the cause for the consultation and the state of health it revealed or ought to have revealed. It requires no argument to show that the action of the company may well be influenced by the answer to this question. Taking, therefore, even a narrow view of the right of the insurer to exercise its own judgment and stipulate as to what is material, it is entirely fair that the truthfulness of such answer should be made the subject of a warranty. In this case' the insured warranted the truthfulness of his answer to question No. 7 and accepted the policy upon the express condition that the insurer should not be liable to pay the stipulated indemnity if that answer were false. It was false, and the plaintiff can not recover.
The plaintiff cites some cases from Vermont and elsewhere holding contrary to these views. They can not be approved. In the case of Hoover v. Royal Neighbors, 65 Kan. 616, 70 Pac. 595, an applicant for life-insurance warranted the truthfulness of his answer to the following question: “Have you within the last seven years consulted any physician in regard to personal ailment?” The answer was “No,” and was false. The syllabus of the casé reads:
“When, in a contract of insurance, the application of the insured is made the basis for, and a part of, the contract between the parties, and in .the contract so made it is stipulated and warranted that the answers of the insured to questions propounded in the application are literally true, and it is also stipulated thát if any such answer be found to be not literally true the contract shall become absolutely null and void, the validity of the contract depends on the truthfulness of the answers, and not on the materiality of the answers to the risk assumed. The contract of the parties having made the answers of the insured material, the same is avoided if such answers be found untrue.”
The point is made that in the Hoover case the warranty was of the “literal” truth of the answer. The court is not disposed to distinguish between the literal truth and the truth unqualified of an . answer which must be Yes or No. The Hoover case and the present decision are supported by the following authorities cited by the defendant: Jeffries v. Life Insurance Company, 89 U. S. 47, 22 L. Ed. 833; McDermott v. Modern Woodmen, 97 Mo. App. 636, 71 S. W. 833; Assurance Society v. Reutlinger, 58 Ark. 528, 25 S. W. 835; Mutual Life Ins. Co. v. Arhelger, 4 Ariz. 271, 36 Pac. 895; Connecticut Mut. Life Ins. Co. v. Young, 77 Ill. App. 440; Nelson v. Nederland Life Ins. Co., 110 Iowa, 600, 81 N. W. 807; Cobb v. Covenant Mutual Benefit Assoc., 153 Mass. 176, 26 N. E. 230, 10 L. R. A. 666, 25 Am. St. Rep. 619; Dimick v. Metropolitan Life Ins. Co., 69 N. J. Law, 384, 55 Atl. 291, 62 L. R. A. 774; Metropolitan Life Ins. Co. v. McTague, 49 N. J. Law, 587, 9 Atl. 766, 60 Am. Rep. 661; Price v. Phœnix Mutual Life Insurance Company, 17 Minn. 497, 10 Am. Rep. 166; Roche v. Supreme Lodge, 21 N. Y. Supr. Ct., App. Div., 599, 47 N. Y. Supp. 774; U. B. Mut. Aid Soc. v. O’Hara, 120 Pa. St. 256, 13 Atl. 932; Caruthers v. Kansas Mut. Life Ins. Co., 108 Fed. 487; Hubbard v. Mutual Reserve Fund Life Ass’n, 100 Fed. 719, 40 C. C. A. 665.
The insured was a minor when the contract was. made and at the time of his death. In the case of O’Rourke v. John Hancock Mut. Life Ins. Co., 23 R. I. 457, 50 Atl. 834, 57 L. R. A. 496, 91 Am. St. Rep. 643, the court held a minor is not bound by the warranties, contained in a contract for life-insurance, but that the policy is nevertheless enforceable, against the insurer.. In this state a minor is bound not only by contracts, for necessaries but also by all other contracts, unless he disaffirms them within a reasonable time after he attains his majority. If he disaffirm he must restore to the other party all money or property received by him by virtue of the contract and remaining within his control. (Gen. Stat. 1901, § 4183.) This contract, was not disaffirmed by the minor. It is binding upon him until disaffirmed, and the court knows of no one who can exercise the right to disaffirm except the minor. But if the plaintiff be allowed to represent the minor, the same consequences must follow as if the minor had acted. The contract of insurance is an entirety, and the statute gives the minor no right to dis-affirm provisions which he finds burdensome and to enforce those which are to his advantage. If any material portion of the contract be disaffirmed, unexecuted provisions fall. The warranty is an integral part of the contract. It is an indispensable condition of liability on the part of the insurer. If the warranty be disaffirmed, liability on the contract must necessarily be destroyed. The contract can not be disaffirmed and then money be taken from the company by virtue of the contract when the return of such money, if it were-in the minor’s hands, would be a necessary element of disaffirmance. The Rhode Island case is disapproved.
Another question is discussed in the briefs which will be of vital importance upon a retrial of the case. The application contains the following agreement:
“The provisions of section 834 of the code of civil procedure of the state of New York, and of similar provisions in the laws of other states, are hereby waived; and it is expressly consented and stipulated, that in any suit on the policy herein applied for, any physician who has attended, or may hereafter attend, the insured may disclose any information acquired by him in any wise affecting the declarations and warranties herein made.”
Section 834 of the New York code forbids a physician to disclose any information which he acquires in attending a patient in a professional capacity. The corresponding provision of the law of this state is section 323 of the code of civil procedure, which reads as follows:
“The following persons shall be incompetent to testify:
“Sixth. A physician or surgeon, concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient; provided, that if a person offer himself as a witness, that is to be deemed a consent to the examination also if [of] an attorney, clergyman or priest, physician or surgeon on the same subject.”
Section 836 of the New York code requires that any waiver of the provisions of section 834 must be made upon the trial or examination in which the question of competency arises. The statutes of this state do not so provide.
It is insisted the contract is a New York contract and must be construed according to the laws of that state. The New York statutes referred to relate to procedure, and to procedure in that state only. They do not undertake to regulate procedure in this state or to limit the right of parties to contract with reference to privileges granted by the laws of this state. If the trial had occurred in New York the procedure there would have been followed and the stipulation would have been ineffectual. Since it occurred in this state the only question is if the waiver is good under the law here.
The statute quoted contemplates that the patient may consent to his physician’s testifying. Therefore no question of public policy is involved. The public policy of the state does not depend upon the will of individuals who are free to act as circumstances may suggest them. It is elementary law that communications made in professional confidence are not incompetent. If a third person hear them he may testify. The disqualification is imposed upon the lawyer, physician or priest only, and not for his benefit or for the benefit of the public, but merely as a privilege to the client, patient or person confessing. This privilege, like many others, even those protected by constitutional guaranty, may be waived. By statute, if the party himself testify the privilege is waived. If he publish the confidential matter to the world the privilege is waived. (See In re Elliott, 73 Kan. 151, 84 Pac. 750; In re Burnette, 73 Kan. 609, 85 Pac. 575.) And it would deprive him of a valuable right if he were prohibited from making a waiver by contract in advance of litigation.
“The privilege may be waived, like all other privileges. It is astonishing to find that this question could ever have been regarded as debatable. Nothing but a confusion of fundamental ideas could ever create any doubt. . . . That a waiver may be ■ irrevocably made by contract before litigation begun has generally ■been conceded by the courts. It should certainly be sanctioned unless made under conditions of duress or fraud which would have rendered the contract in other respects voidable.” (4 Wig. Ev. § 2388.)
It is not necessary to pursue the discussion further. The contract is valid, and the waiver is binding.
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
Porter, J.:
This is a suit by property owners to enjoin assessments relevied by the city of Kansas City on account of the cost of a certain sewer. The ordinance relevying the assessments complained of was first published August 24, 1906. The suit was not begun until November 1, 1906. Under the authority of Railroad Co. v. Kansas City, 73 Kan. 571, 85 Pac. 603, this was too late. Section 130 of chapter 122 of the .Laws of 1903 reads:
“No suit nor action of any kind shall be maintained :in any court to set aside or in any way contest or enjoin the levy of any special assessment for constructing or repairing any sidewalk, pavement, sewer or any other public improvement after the expiration of thirty ■days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.”
The statute clearly applies with equal force to cases where the assessments have been relevied as it does to those where originally levied, and the fact that the suit .is based upon a judgment holding the original levy void makes no difference. The language of the statute limiting the time in which such suits may be commenced is not open to any other construction. The proceedings to relevy usually consist of the passage of .an ordinance, and nothing more. If it is regular, the proceedings on their face are likewise regular. As was said in Railroad Co. v. Kansas City, supra: “After the expiration of thirty days the validity of the assessment can not be attacked for any purpose, when the proceedings are regular on their face.” (Page 575.) The demurrer should have been sustained.
The judgment is reversed and the cause remanded, with directions to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Smith, J.:
On May 2, 1899, Adams recovered a final judgment against Hunley for $1655. On February 15, 1900, a portion of the judgment remaining unpaid, execution was issued thereon and returned unsatisfied. On September 25, 1905, notice of a motion to revive the judgment, made by Adams, and by Baker as assignee of Adams, for the benefit of his creditors, was served upon Hunley. On February 6, 1906, the motion was heard in the district court of Rush county, in connection with a motion by Hunley to strike the notice and motion of Adams from the files for the reason that “there is no action or judgment of an action in this court of the title stated in said motion and notice.” The ground for the objection was that Hunley’s wife had been a joint defendant with him in the action, but it appears that no judgment was rendered against her. Another objection was on the ground that there was no evidence offered by Adams or Baker that Baker was the assignee of Adams for the benefit of his creditors. Hunley, however, had no interest in the ownership of the judgment other than that he might not twice become responsible therefor. The judgment creditor and his alleged assignees both being in court, and asking for the revivor of the judgment, was ample protection in this respect to Hunley. In short, no sufficient cause was shown why the revivor should not have been made, and it should have been immediately ordered. (Civ. Code, § 428.)
It appears from the journal entry of the court that the order of revivor was made on the date of the hearing, February 6, 1906, and that time was given within which to make and serve a case-made for appeal to the supreme court, which was done in due time. The case-made, which was duly certified by the judge of the trial court and filed in this court, recited:
“No other or different order of judgment was ever made or entered upon said motion to revive, and the same were made, filed and entered on the 19th day of May, 1906, and not before.”
On the case being heard in this court, and the conflict in the statements being called to the attention of the court, the action here was continued for the purpose of having the judgment of the court below cor- reeled, if erroneous. Thereafter action was taken in the matter in the district court of Rush county, the record of which, omitting the title and the certificate of the judge and clerk, is as follows:
“On this 7th day of February, 1908, the attention of the court is called to the order of the supreme court heretofore made in cause No. 15,388 in that court, wherein George W. Hunley is plaintiff in error, and J. Melvin Adams et al. are defendants in error; and pursuant to the suggestion of said order the court finds and declares the fact to be that the journal entry of revivor entered of record by the clerk of the district court of Rush county is in every respect a correct record, and that any statement at variance with, or in contradiction of, such journal entry in the case-made of said George W. Hunley, plaintiff in error, was and is an inadvertence and should have been by the judge of this court stricken from such case-made before settling and signing the same. This conclusion is founded upon facts as follow, to wit: On January 6, 1906, in open court in Rush county, this matter came on for hearing upon the motion of J. Melvin Adams to revive the judgment in question; the court intimated to counsel a desire to take under advisement certain questions involved in its determination, and it was thereupon in open court agreed between the plaintiff, and defendant,, who was present in person and by counsel, that such motion should be by the court taken under advisement and his conclusion, when reached, reduced to judgment as of that day.”
We think this is conclusive against the plaintiff in. error. Even if the proceeding was irregular in the court, it must be conceded that either the court or the-judge of the court could, upon the consent of the plaintiff in error, revive the action; and the agreement recited in open court, if it contemplated taking the case, under advisement until after the 15th day of February, 1906, amounted to an agreement that the judgment might thereafter be revived if it were found that, the objections raised were not sufficient at the time they were made. However, the court is superior authority to the judge of the court, and we think the record of February 6, 1906, construed with the record of February 7, 1908, must stand.
The judgment is affirmed.
Benson, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J.:
Defendant in error recovered a judgment against the plaintiff in error in the district court of Brown county upon a policy of fire-insurance. The company prosecuted proceedings in error to this court, and the judgment was reversed and the cause remanded for a new trial. (Insurance Co. v. Stahl, 72 Kan. 578, 83 Pac. 614.) Thereupon the parties entered into a stipulation, as follows:
“It is hereby stipulated and agreed by and between the plaintiff and the defendant that this case is settled by the defendant paying to the plaintiff, on or before the first day of May, 1907, term of the district court,. the sum of one hundred dollars ($100), plaintiff to have judgment against the defendant for all costs in the district court.”
This stipulation was signed by the attorneys for both parties and filed with the clerk of the court. The company paid Stahl the $100, as stipulated, and also paid all the costs in the court up to the convening of the term at which the motion for an allowance for attorney’s fees was made. Upon the assembling of court Stahl filed a motion for an allowance of a reasonable attorney’s fee, and upon the hearing of the motion the court rendered judgment in favor of Stahl against the insurance company for $150, and ordered that the same be taxed as costs in the case. The insurance company excepted and brings the case here to reverse the judgment.
The defendant in error filed a motion in this court to dismiss the case on the ground that, under the provisions of subdivision 3 of section 542 of the civil code, the amount in controversy, exclusive of costs, does not exceed the sum of $100; in fact, he contends that no .amount whatever is involved, except costs. This leads us to determine the meaning- of the words “exclusive of costs,” as used in the statute referred to. We think, aÉ there used, the words relate only to such costs as are provided for by statute and may be computed and taxed by the clerk of the court, without any action of the court, except, it may be, to review the action of the clerk on motion. The words do not include an allowance as an attorney’s fee to the prevailing party, the amount of which can not be computed under the statutory provisions but must be determined judicially by the court. The motion to dismiss is therefore denied.
We next consider the merits of the case. The only authority for the judgment is section 3410 of the General Statutes of 1901, which reads:
“The court in rendering judgment against any insurance company on any such policy of insurance shall allow the plaintiff a reasonable sum as an attorney’s fee, to be recovered as a part of the costs.”
The only judgment which the district court had rendered in favor of Stahl against the insurance company upon the policy of insurance had been reversed by this court, and the case had been remanded for a new triaL It is not reasonable to suppose that the legislature intended to provide that an insurance company should be required to pay an attorney’s fee in favor of a plaintiff for procuring an invalid or illegal judgment against it. In fact, at the time the allowance of $150 as an attorney’s fee was made by the court there existed no judgment in favor of Stahl against the company. Nor had any valid judgment against the insurance company in favor of Stahl been discharged, but, after the reversal' of the former judgment, a full and complete settlement had been made between the parties, without submitting-the matter to the judgment of the court. We conclude that section 3410 does not authorize the allowance of an attorney’s fee in this case.
The judgment of the district court is reversed, and the cause remanded. | [
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The opinión of the court was delivered by
■ BÚRCH, J.:
Defendant W. A. Randolph obtained a judgment against J. H. Wilhite. Afterward Wilhite purchased a tract of land which he proceeded to make his homestead, and which he later conveyed to his wife, the plaintiff. Randolph caused an execution to issue upon his judgment, and the plaintiff brought a suit to enjoin the sheriff from levying it upon her land. The parties agreed upon the following facts:
“(1) On the first day of August, 1887, the said defendant W. A. Randolph procured a judgment in this court in an action therein pending against ohe J. H. Wilhite, in the sum of $820 and costs.
“ (2) Afterward, on the 10th day of January, 1890, ;a payment of $400 was made by said J. H. Wilhite upon .said judgment. . No other payments have been made upon said, judgment.
“ (3) Said Wilhite died Décember 16, 1904.
“ (4) Said judgment has been kept alive by said defendant W. A- Randolph having had executions thereon, and the same never became dormant until the said ■death of said Wilhite, and said Randolph is now, and always has been, the owner of said judgment.
“(5) After the death of said Wilhite said judgment was duly revived against the plaintiff herein, who is the executrix of said Wilhite.
“(6) On August 1, 1887, and for a long time prior thereto, and ever since said date until his death, said Wilhite was a resident of Lyon county, Kansas, and was also the head of a family, consisting of himself, his wife (the plaintiff herein) and their minor children, living together in said county and state.
“(7) On March 26, 1892, said Wilhite acquired by purchase from one L. C. Martin residence property in the city of Emporia, in said county and state, to wit, lots 120, 12W and the south half of lot 124, on Mechanic street, in said city, and said Wilhite immediately occupied the same with his family as his home and homestead.
“ (8) Said residence property was taken by said Wilhite subject to a mortgage of $2350, and his equity in the same was in the transaction reckoned to be $475.
“(9) Shortly prior to June 1, 1893, said Wilhite received a pension from the government in the sum of $1040, which he concluded to invest, or so much thereof as might be necessary, in procuring a home for himself and family which-should be free from incumbrance.
“(10) On June 1, 1893, said Wilhite purchased of Alson Fowler the land described in plaintiff’s petition, paying therefor $900 in cash out of his said pension money, which said land is farm land and not within the corporate limits of any city, and was purchased lay said Wilhite with the intention of making the same his homestead for himself and family, which intention he never gave up or abandoned, but carried the same into effect by moving upon said land and making the same his home and homestead of himself and family on July 6, 1893, which was as soon as the necessary repairs could be made to the dwelling-house thereon and the barn built on said property; and said Wilhite continued to use and occupy said land as his homestead, and that of his family, until his death, December 16, 1904.
“ (11) At the time of the purchase of said premises described in said plaintiff’s petition by said J. H. Wilhite, there was no barn thereon, and the residence-house situated thereon was unfinished.
“(12) That one E. F. Sprague, a contractor and builder, of Emporia, Kan., erected the barn on said premises and completed the house, and did some other repairs upon said premises, and in payment therefor said J. H. Wilhite, on June 20, 1893, conveyed said lots hereinbefore described to said Sprague.
“ (13) That said Wilhite and his family continued to occupy the said lots, hereinbefore described, which he purchased from said L. C. Martin on March 26, 1892, until he moved with his said family upon the premises described in plaintiff’s petition, July 6, 1893, and during all of said time from March 26, 1892,' to July 6, 1893, he and his family occupied no other place as a home or place of residence.
“(14) On the 11th day of December, 1905, said defendant Randolph caused an execution to issue on said judgment, out of the office of the clerk of this court, to the sheriff of Lyon county, Kansas, and directed the defendant S. C. Hinshaw, who is sheriff of Lyon county, Kansas, to levy the same upon the premises described in plaintiff’s petition.
“(15) That said defendant Hinshaw intends to, and unless restrained by this court will, levy’said execution upon said premises and proceed to advertise and sell the same to satisfy said judgment.
“(16) That on the 19th day of July, 1904, the said J. H. Wilhite, for a good and valuable consideration, sold and by good and sufficient deed conveyed to this plaintiff the real estate described in plaintiff’s petition. That at the time of such conveyance the said J. H. Wilhite was in possession of and using and occupying the said premises as the home and homestead of himself and family.”
Upon the trial the district court found the following additional facts:
“ (1) Prior to the first of June, 1893, and prior to the purchase of the land in controversy from Alson Fowler, J. H. Wilhite entered into an oral agreement with E. F. Sprague, a contractor and builder of the city of Emporia, by the terms of which it was agreed that in case Wilhite could buy said land Sprague would furnish labor and material sufficient to build a barn and finish and repair said residence-house, and in payment for said labor and material Wilhite should convey said city residence property’ to Sprague by quitclaim deed, subject to said mortgage.
“ (2) The plaintiff herein, the wife of the said J. H. Wilhite at that time, was present when said oral contract was made, and acquiesced therein.
“(3) On said June 1 said twelve acres were occupied by a tenant of the prior owner, who had thereon a growing crop.
- “(4) Said Wilhite, contemporaneously with the pur chase of said land, bought the interest of said tenant, and immediately moved his live stock upon said land, and began to cultivate the crops and to oversee and assist in making certain improvements hereinafter named.
“(5) From June 1, 1893, to July 6, 1893, while said improvements were being made upon said twelve acres, the family of said Wilhite remained in the city residence, and the said Wilhite was with his family in the city residence at night and went back and forth from said city residence to said twelve acres each day, and during the time the plaintiff herein also expended time, work and labor from day to day upon said twelve acres in fitting and repairing the same for occupancy for a home.”
The trial court héld the judgment did not become a lien on the land, because of its homestead character, and granted an injunction. The defendants prosecute error.
The defendants in their argument place stress upon the words “occupied as a residence” in the homestead provision of the constitution. (Const., art. 15, § 9.) Wilhite and his family continued to occupy the city lots as a residence for a month after the rural tract was purchased. So it is said he had a homestead where he resided. To change a man’s residence he must move and intend not to return. Here there was no removal, but only an intention to remove, for several weeks. So it is said the judgment of the district court would permit one homestead to be held by occupancy in fact and at the same time permit another to be held by an intention to occupy in the future. Cases insisting upon occupancy, like Koons v. Rittenhause, 28 Kan. 359, 362, cases denying the right to a homestead in separate tracts, like Savings Bank v. Wheeler’s Adm’r, 20 Kan. 625, 632, and Swenson v. Kiehl, 21 Kan. 533, 534, and cases holding that to' effect an abandonment of a homestead there must be a removal, like Palmer v. Parish, 61 Kan. 311, 59 Pac. 640, are cited. The argument is faulty because it ígnorés too many important factors essential to a correct solution of the problem. The intention to occupy the new place was not a mere purpose to be carried out sometime in the future, but it was a definite present intention to occupy at once. The circumstances were such that it was impossible to effect an immediate change. Adequate efforts were diligently made to remove the obstacles to immediate occupancy. No more time was consumed than the work to be done required, and as soon as the necessary arrangements could be made the new home-was occupied.
None of the cases cited is controlling. In the Koons case a man left his wife, all the family he had, in New York, came to Kansas, obtained title to a tract of government land, occupied it alone for four years, and sold it. Meantime he and his wife entertained the purpose that at sometime she would come to Kansas and reside with him on the land. Nearly a year after the sale she came, and in a suit to set aside the deed because executed without her consent it was held the purchaser obtained title. The intention to ocqupy was indefinite; no energetic effort was made to execute it; the reasonable time allowed by the law in which to effect occupancy of a homestead lapsed, and still time went on and on; and the land was not occupied at all by the family of the owner while he held title.
In the case of Savings Bank v. Wheeler’s Adm’r, 20 Kan. 625, a man left his farm in Atchison county, which he rented to a tenant for two years, and removed with his family to property which he owned in a city in Doniphan county. His purpose was to sell off his stock and farm machinery, rent the farm for three or four years, educate his children, and then stock up and go back to the farm. He occupied the city property as a residence, where he surrounded himself with all the ordinary insignia of a home, and he taught school, voted and held office in the qity. Failing to make a satisfactory lease of the farm to begin when the lease already in existence expired, he determined to move back and take possession at the end of the lease, and so notified the tenant, but he died before the time arrived. Eighteen months later the widow and children returned to the farm. The court held it was liable for the payment of debts. The man’s conduct conclusively proved he had changed his residence to the city. The purpose to return to the farm at some indefinite time could not change the fact that he had established his residence in the city with the present purpose of making it his home. This being true, he could not hold the farm as a homestead through a tenant. To make the farm his homestead again it was necessary that he should abandon, the one he had acquired in the city. His unfulfilled intention to do this was unavailing, and the widow’s return could not free the land from the liability for debts, which had attached at her husband’s death.
In the case of Swenson v. Kiehl, 21 Kan. 533, the landowner claimed he purchased with the intention of' making the land a homestead, but he took no steps in that direction. Some excuses were offered for the failure to occupy, but this court was unable to say whether the trial court credited the testimony, the facts not having been found specially. The principle applied in. deciding the case was stated thus:
“We are aware that occupancy is not always possible at the instant of purchase, and that, as we have heretofore said, a reasonable time is allowable in which to-prepare for and complete the removal to and occupation of the intended homestead. But the purchase must be-for the purpose and with the intent of present and not simply of future use as a residence. A party may not. have two homesteads. If he occupies one dwelling as a residence, and intends to continue such occupation for the present, a purchase of another residence does not invest that with the character of a homestead simply because of an intent at some future and more convenient time to make it his home.” (Page 534.)
The syllabus of the case of Palmer v. Parish, 61 Kan. 311, 59 Pac. 640, is sufficient to-.distinguish it:
“An. owner of property occupied as a homestead who- has under consideration a change of residence, and who, with his wife, starts out in an effort to find a new home, but with the intention to return and continue to occupy the homestead if he can not make a satisfactory exchange, and who leaves members of the family at the home, as well as household effects, stock, and other property, does not thereby forfeit his homestead right, nor will the property be devested of the homestead character until there is a permanent removal with an intention not to return to the same.”
In this case Wilhite purchased the country tract on June 1, 1893, with the present intention of making it his homestead, which intention he immediately proceeded to execute. Before he purchased he arranged to make the premises suitable for occupancy if he should buy. It was necessary to build a barn and to repair the dwelling-house. The entire time from June 1 to July 6 was consumed in making these improvements, and as soon as they were completed he moved on the land and thereafter occupied it as his homestead. Under these circumstances, by a fiction adopted to carry out the purpose of the constitution, to make the law reasonable and tolerable and to accomplish manifest justice, the occupancy on July 6 related back to June 1 and the premises became impressed with the homestead character as of the date they would have been occupied if they could have been occupied.
The case resembles that of Gilworth v. Cody, 21 Kan. 702. Cody purchased land on December 1 intending at the time to make it his homestead at once. Immediately he commenced to dig a cellar and haul stone for a house. On December 5 he started to a neighboring town for material for a dwelling. On December 7 he returned with such material and unloaded it adjoining the premises. On December 28 the house was completed and he moved in with his fámily. It was held that an attachment levied on December 7 gave no lien. After citing authorities the.court said: .
“These decisions clearly establish-the doctrine that our homestead laws, beneficial in their operation and founded in a wise policy, should be liberally construed, so as to carry out their spirit. Considered in this light, in this case there was such an actual purpose and intention of present occupancy, accompanied with such acts on the part of the defendant in error in the commencement and completion of his dwelling, together with his residence therein with his family, that this might reasonably be held to amount in substance to actual occupancy at the date of the levy. While therefore we hold, within the terms of the law, that occupation is an essential element to secure a homestead inviolability, under the exceptional circumstances which appear from the findings of the court the intentions and acts of the purchaser of the land in controversy may be construed into a legal equivalent of actual occupancy of such premises. Law is entitled to and can command respect only when it is reasonable and adapted to the ordinary conduct of human affairs, and thé construction we have given above to the provisions securing homestead exemptions is certainly within their spirit, and more in consonance with a reasonable interpretation thereof, than if we adopted the opposite conclusion.” (Page 705.)
In the case of Edwards v. Fry, 9 Kan. 417, it was said:
“We know the spirit which animates the people of Kansas, the makers of our constitution and laws, on this homestead question. We note the care with which they have sought to preserve the homestead inviolate to the family. We have no disposition to weaken or whittle away any of the beneficent constitutional or statutory provisions on the subject. We know that the purchase of a homestead, and the removal onto it, can not be made momentarily cotemporaneous. It takes time for a party in possession to move out, and then more time for the purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now, the law does not wait till, all this has been done, and the purchaser actually settled in his hew home, before attaching to it the inviolability of a homestead. A purchase of a homestéad with a view to occupancy, followed by occupancy within a reasonable time, may secure ab initio a homestead inviolability.” (Page 425.)
In additiop to what has already been quoted from Swenson v. Kiehl, 21 Kan. 533, the court there said:
“We do not mean that a party occupying a residence under a lease must of necessity wait until the exact instant of the termination of that lease before making arrangements for his future home. The law favors homesteads; and arrangements made at about the time of the termination of such lease or occupation, and with a view thereto, are, for the purposes of a homestead question, considered as made cotemporaneous with such termination — but with this reasonable limitation: a party who has one home can not impart to another residence which he may purchase the character of a homestead, and thereby secure its exemption from judicial process by the mere intent at some future time to occupy it as a residence of himself and family.” (Page 534.)
In the case of Loan Association v. Watson, 45 Kan. 132, 25 Pac. 586, it was said:
“It is well settled in this state and other states that where a person, the head of a family, purchases a piece of land, intending to make it a homestead for himself and family and to occupy it as such át once, and follows such intention up by immediate occupancy of the premises as a homestead, such land is all the while protected by the exemption provision from judgment liens.” (Page 134.) '
In the case of Upton v. Coxen, 60 Kan. 1, 55 Pac. 284, 72 Am. St. Rep. 341, it was said:
“It is settled that the purchase of a honae, with the intention to occupy it as a homestead, followed by actual occupancy within a reasonable time, may impress it ah initio with homestead character and inviolability.” (Page 3.)
In the case of Stowell v. Kerr, 72 Kan. 330, 83 Pac. 827, it was said;
“On the purchase of a homestead there should be such occupancy as the situation warrants. To preserve the homestead character full occupancy as a residence should be taken within a reasonable time, and, if that is done, the occupancy will relate back to the time when the property was purchased with the bona fide intent to make it a homestead.” (Page 382.)
The same principles apply to the relinquishment that govern the acquisition of a homestead. The homestead character of the city lots ended when for purposes of the law the occupancy of the country place is treated as having begun. At that time the city lots had been sold. The agreement was that the lots should be deeded in consideration of improvements to be put upon the new homestead. This agreement was made in good faith and was promptly executed in good faith by both parties. It makes no difference to the defendant that it was oral. The statute of frauds does not render ah oral agreement for the sale of land impossible of voluntary performance. It merely provides that no action shall be brought to charge a party to the contract. If such a contract be performed and a deed of conveyance be executed and delivered in consummation of it the deed will relate back to the origin of the transaction, as in other cases. (29 A. & E. Encycl. of L. 817.) There is substantial evidence in the abstract to show acquiescence on the part of the plaintiff in'the oral agreement to sell the city lots, and her subsequent execution of the deed ratified the agreement and made it binding from the beginning.
In litigation with the purchaser of the city lots the defendant was denied a lien upon them by the southern department of the courts of appeals, apparently on the ground the old homestead was not relinquished until the new one was occupied in fact. (Randolph v. Sprague, 10 Kan. App. 583, 63 Pac. 446.) Neither the plaintiff nor her husband was a party to that litigation, and the facts upon which the decision was rendered were materially different from those now under consideration. It would be unprofitable now to inquire into the soundness of the judgment of the court of appeals.
Upon the facts before it the district court correctly-determined the rights of the parties to the present suit, and its judgment is affirmed.
Graves, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J.:
One question only is involved: Is the plaintiff in error estopped by the judgment of the district court of Shawnee county rendered upon the general demurrer?
It is contended by the plaintiff in error that the judgment, while in form affirmed by this court, was essentially reversed; that the decision of the district court was that the cross-petition stated no cause of action, while the judgment was affirmed in this court for the reason that the cross-petition stated two causes of action improperly joined; that estoppel is based upon equity, and that equity goes behind forms and superficial appearances and determines what facts were really adjudicated and accords to every litigant in court a hearing or an opportunity to be heard upon every fact which is determinative of his rights.
On the other hand the defendants in error, admitting that the decision of the district court of Shawnee county is directly contrary to the decision of this court in Holderman v. Hood, 70 Kan. 267, 78 Pac. 838, on a pleading essentially the same, and admitting that the judgment was affirmed on a ground diametrically opposed to the ground upon which it was rendered, say, nevertheless, that a general demurrer admits all the facts as pleaded, and a judgment sustaining the demurrer is a judgment upon these facts, and, however erroneous, if unreversed it is conclusive of the legal effect of such facts in all courts for all time; that the judgment of the district court of Shawnee county was not reversed, but was in fact affirmed; that the ground upon which it was affirmed is immaterial; that the burden of showing the error of the district court rested upon the plaintiff in error, and, having failed in this, the judgment is conclusive against her and conclusive of this action.
The several propositions of the defendants in error are in accord with the general rules of law and are impregnable. It is the judgment of the district court, and not the judgment of this court, which was pleaded as res judicata. This court rendered no independent judgment, but affirmed the judgment appealed from, stating the reasons therefor. Bearing this in mind, it is apparent there is no room for the rule that upon a plea of res judicata the court will go behind the formal judgment to ascertain what was really adjudicated and, if necessary for the purpose, will receive evidence aliunde. The allegations of the cross-petition, admitted by the demurrer to be true, are the facts which were adjudicated and which can neither be added to nor taken from. It was said in De Sollar v. Hanscome, 158 U. S. 216, 15 Sup. Ct. 816, 39 L. Ed. 956: “It is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment.” (Syllabus.) A judgment rendered upon the sustaining of a general demurrer meets this test. (Brown v. Kirkbride, 19 Kan. 588; Merrill v. Ness County, 7 Kan. App. 717, 52 Pac. 109; McLaughlin v. Doane, 40 Kan. 392, 19 Pac. 853, 10 Am. St. Rep. 210; Hyatt v. Challiss, 59 Kan. 422, 53 Pac. 467; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491.) No case is cited, nor have we been able to find one, where any equities of the defeated party have countervailed the finality of such a judgment.
Before the plaintiff in error was entitled to have the judgment reversed an error must have appeared from the record, and if the record was incorrect, and if thereby an inhering error did not appear, it devolved upon the plaintiff in error to have it corrected. The defendants in error had the right to urge an affirmance of the judgment upon any ground consistent with the record as presented, and if upon such record the ruling of the district court was correct upon either of the two grounds of demurrer this court could not do otherwise than affirm the ruling and the consequent judgment. It is said that this view is technical and inequitable. Probably it is. So also are many of the indispensable laws of procedure. If, for instance, the record of the district court in this case had fully shown the erroneous ruling and judgment, and the plaintiff in error had delayed for only one day longer than the law allows to appeal therefrom, the appeal must have been dismissed and the judgment have become final, as it now becomes. In such a case, as in the present one, the judgment attempted to be appealed from might be clearly erroneous and might impose a hardship; in one the attempted appeal would fail because of the addition of one day to the three hundred and sixty-five days allowed for an appeal; in the other it fails because plaintiff in error did not have the record so made as to speak the whole truth and disclose the error.
The contention that the decision of this court holding that the petition stated two causes of action improperly joined, and not the decision of the district court that it stated no cause of action, became the final judgment is supported by only one case cited which is claimed to be parallel to this. It is Griffin v. Seymour, 15 Iowa, 30, 83 Am. Dec. 396. That case-is like this upon the question of res judicata, with this important exception: it was at no time made to appear upon which of the two grounds the demurrer was sustained by the lower court. The supreme court affirmed the judgment on the ground of misjoinder. That case was in the situation, when the judgment was pleaded as res judicata, as this would have been had the record of the district court of Shawnee county never been corrected. Because of the silence of the récord on the subject it was held to be the presumption that the district court sustained the demurrer upon the same ground as did the supreme court. That is a well-recognized rule, but it is not applicable here. The amended record pleaded imports absolute verity, and no presumption is to be indulged. True, it was said in that case that “the judgment of this court, and not that of the district court, is the final adjudication.” (Page 83.) In this state, however it may be in Iowa, the judgment of a district court having jurisdiction is final unless reversed or set aside. If appealed from it is only suspended or stayed upon the giving of a prescribed bond, and, if affirmed, it of course becomes final. We render no independent judgment in case of affirmance.'
It appears from the opinion in a later Iowa case, Trescott v. Barnes, 51 Iowa, 409, 1 N. W. 660, that certain appealed cases in the supreme court of that state are, and others are not, triable de novo. That case was held not so triable, as no pase is in this court. An excerpt from the opinion therein shows that, in such a case, it is the judgment of the district court, and not that of the supreme court, which constitutes the final adjudication. The case of Trescott v. Barnes is very similar in principle to the case under consideration. A judgment was rendered by a trial court. The defeated party appealed, and the supreme court upon a hearing concluded that the judgment was erroneous and filed an opinion to that effect, ordering a reversal. But a rehearing was granted, and the final decision was that, owing to a failure of the appellant to make, a sufficient assignment of error, the judgment could not be reversed, notwithstanding the error. In subsequent litigation the judgment was pleaded as a bar, and the supreme court in sustaining the plea used this language, which may be applied to the case at bar without the change of a word:
“Counsel announce the undisputed rule of law that a former judgment will not be effectual as a bar to an action, unless it was rendered upon a trial on the merits. If the trial went off on any technical point the judgment will be no bar. It is insisted that, as the judgment of affirmance in this court was not upon the merits, it is not a bar to this action. Counsel, in our judgment, mistake the facts upon which they rely in the application of this rule. The judgment of the court below was upon the merits of the case. The appeal to this court suspended that judgment; the final judgment of this court affirms it. The judgment in the case now of force was upon the merits. . . . The fact that our opinion upon the merits of the case was adverse to the decision in the court below did not affect that decision. While we expressed our views of the law and facts, those views never culminated in a judgment. After our final decision the case stood just as though it had never been appealed. It can not be claimed that, had no appeal been taken, the judgment would not have been a complete bar to this action.” (51 Iowa, 410.)
Upon the proceedings in error in this case this court affirmed the judgment, the full purport of which the court was not informed of by reason of the failure of plaintiff in error to have the record made specific. The judgment of the district court was specific, and after the affirmance the record was amended to speak the full truth, which had in part been omitted therefrom. At the risk of repetition we restate the proposition: In answer to a petition claiming relief, upon certain detailed facts, in the district court of Lyon county, the defendants pleaded as res judicata that the plaintiff, in an action between the same parties in the district court of Shawnee county, had in a cross-petition alleged the same facts and prayed for the same relief against them; that therein the defendants had demurred on the ground that the cross-petition did not state a cause of action; that the court had so ruled, and upon the refusal of the cross-petitioner to amend had rendered judg ment for the defendants; that the cross-petitioner had appealed from such judgment to the supreme court, and therein the judgment had been affirmed. To this answer the plaintiff demurred and the demurrer was overruled. Did the court err in so ruling? Realizing that the plaintiff has, through oversight, lost the opportunity of a trial to a jury upon the facts, which might have resulted in the recovery of a large sum of money, we are compelled to answer the question in the negative.
' The judgment is affirmed.
Graves, Benson, JJ., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action Walter Bovaird petioned for a divorce from his wife on the ground of abandonment., She answered denying that she had ever deserted or abandoned her husband, and alleging that he had abandoned her and had instituted three different actions against her for divorce, two of which were tried and decided adversely to him and the other was dismissed. She also alleged that he had been guilty of adultery with a number of women and had been living a dissolute life, and her prayer was that a divorce be refused and that she be granted alimony.
At the trial the court made special findings to the effect that the parties were married in 1888; that in 1897 the plaintiff abandoned his wife, without cause or consent, and in the same year attempted to obtain a divorce from her in Pennsylvania, on the. grounds of abandonment and cruelty, but that a trial there resulted in a decision against him; that he then went to-South Dakota and began another action for divorce, because of alleged abandonment, but, although she appeared and answered, the cause was dismissed; that, two years later he commenced another action in South Dakota, alleging a later desertion on her part because, he had notified her to come to that state and live with, him, but it was found that the offer was not made in. good faith and only for the purpose of laying a ground, upon which he might obtain a divorce, and it was then-decided that she was not guilty of desertion; that he came to Independence, Kan., in 1902, where he has. since resided and is held in good repute; that in 1904-he wrote to defendant asking her to come to Kansas and live with him, admitting his misconduct and suggesting that she, too, was not without fault, and that each should forgive and forget the past. It was also-found that he had provided a home for her in Kansas, and that the offer was made by him in good faith, and was again renewed when the defendant came to attend trial, but that she did not accept his proposal to-resume marital relations with him. It was found that, he had contributed nothing toward her support since he-had deserted her in 1897, but that she had lived with, a brother and with his assistance had supported herself. It was further found that he admits committing-adultery since he separated from his wife, and that she has not lived, or cohabited with him since 1897 and. has in no manner condoned or forgiven him. The court-found that she had not abandoned him, and that the-ground alleged for divorce was not sustained.
Notwithstanding the recited facts, the plaintiff is. here insisting that he is entitled to a decree of divorce. Abandonment was the only ground upon which a divorce was asked, and the court found upon unquestioned! evidence that she was not guilty of that charge. On the contrary it appeared and was found that he had abandoned her without cause and against her will, and has since been guilty of adultery and gross neglect of duty. Has one guilty of these violations of the marital relation against a spouse found to be without fault any cause to complain that his petition was refused? The statute vests the court with discretion to refuse a divorce where the plaintiff, as well as the defendant, is in the wrong. (Civ. Code, § 643.) Therefore can there be any doubt of the propriety of refusing a divorce to a plaintiff who admits that his conduct was reprehensible and who is found to be guilty of the gravest and grossest violation of the marital relation? Divorce is a remedy available to an innocent party, and one who has deserted his wife and held adulterous relations with a number of women is not in a position to ask for a divorce. (Burke v. Burke, 44 Kan. 307, 24 Pac. 466, 21 Am. St. Rep. 283.) In the recent case of Day v. Day, 71 Kan. 385, 80 Pac. 974, it was said that the matrimonial offense of a plaintiff would bar his claim for a legal separation. It was further said:
“It is no more than the application of the equitable rule that one who invokes the aid of a court must come into it with a clear conscience and clean hands. Divorce is a remedy for the innocent and injured, and the plaintiff that has himself broken the marriage contract can not well ask to be relieved from its obligations because his spouse may also have broken it.” (Page 388.)
Much less may an offending plaintiff ask for the severance of the matrimonial bonds where the spouse is free from blame. There is a strong statement of the same rule in volume 2 of the fifth edition of Bishop on Marriage, section 87, in this language:
“The matrimonial relation is one of mutual dependence and duty; and it would seem to be within all legal analogies, and all sound canons of morality, to refuse to hear a plaintiff complaining of the defendant’s infraction of one of the links of this common chain, when he had equally broken another. Moreover, the law is for the assistance of those who obey it, not those who violate it; and, when two parties are both in the same wrong, the court helps neither.”
But plaintiff calls attention to the fact that since coming to Kansas he has apologized for his wrong, has requested his wife to resume marital relations, has offered to provide her with a home, and. that these tenders have all been made in good faith. At an earlier timé he proposed reconciliation and offered her a home in South Dakota, but the court that tried the case be- ' gun in that state found that the offer was not bonafide and was only made for the purpose of laying the ground for an action of divorce. Is it any wonder that she distrusts his motives in the later offer or that she should be slow to accept him as a repentant and reformed spouse? It is noticeable, too, that he couples with his confession and proposal the statement that his wife was in fault.- Aside from his previous duplicity and deceit there are the admitted acts of adultery to make her ■ hesitate, and it is not easy to overlook or condone matrimonial offenses of that gravity. They were not only wrongs against her, but were wrongs' against society, and public opinion does not readily sanction the conduct of a spouse who condones adultery in the other. But is she compelled to condone his wrongs when her husband confesses his guilt and informs her that he is ready “to forget and forgive the past?” Courts are inclined to encourage reconciliation and the resumption of the marital relation between, spouses who are estranged; but here plaintiff is claiming the benefit of an . offer of reconciliation made, it. must be assumed, in good faith, and is using it as a. •basis for a charge of desertion against his wife in order to obtain a complete severance of the marriage-bonds. Seven years before that time he had broken his marriage vows in a number of ways, but she had never-condoned his misconduct; and must it be said that she ■ is compelled to condone his matrimonial offenses, however flagrant, or be chargeable with desertion?
According to the ecclesiastical law one who committed adultery was not entitled to any relief, and while the modern law is not so strict or severe it does not enforce condonation upon a faithful wife who has been loaded with shame and sorrow resulting from the infidelity and gross misconduct of her husband. Even in the case of the less serious ground of desertion the rule is that if the deserter desires to put his wife in fault by an offer of reconciliation it must be made before the other party acquires the right to a divorce against him. In Benkert v. Benkert, 32 Cal. 467, it was held that repentance does not obliterate the matrimonial offense, and that, where the offending party comes with an offer of reconciliation after the time has expired and the right of action has fully accrued for desertion, the injured party is not obliged to accept such an offer, and, also, that the offer is not binding upon one who makes it unless it is accepted and acted upon. It has been said:
“The offer to return is ineffectual if made after the statutory period has elapsed. However wilful the leaving may have been, or however destitute of reasonable cause, it is not a ground of divorce unless the separation has continued for the statutory period. The ‘door of repentance and return’ must be kept open during that period. But after the statutory time has elapsed the injured party has a cause for divorce. If such party refuses to renew cohabitation it is not desertion. For to renew cohabitation is to condone the offense, and the law does not enforce condonation. The refusal of an offer to return will not bar the divorce to which the party is already entitled.” (1 Nelson, Div. & Sep., § 75.) •
Reconciliation may, in the course of time, follow reformation, but the court will not hold that because the defendant did not accept the plaintiff’s proposal she is to be treated as a deserter, nor that he be awarded a divorce on the theory that she is the party in the wrong. The theory of the law is rather that a divorce shall not be granted to one who is guilty of matrimonial misconduct. ..
The judgment of the district court is affirmed. | [
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The opinion of the coürt was delivered by
Burch, J.:
The state of Kansas brought a suit for an injunction to restrain the city of Concordia from committing a public nuisance by discharging sewage into an abandoned channel of the Republican river lying outside but near the city limits. The material portions of the petition are the following:
“That said defendant for a long time past has discharged and now discharges its sewage and other noxious substances upon premises near or adjoining said city on the north, thereby producing noxious and disagreeable gases and odors injurious and dangerous to the health and lives of the inhabitants of said city, more especially to those in the north portion thereof, •and rendering that portion of the city an unhealthy and unsafe place to live.
“That said sewage and the place where the same is •discharged, to wit, the old river-bed, adjoining or near said city on the north, is a public nuisance, to wit, a nuisance to several hundred of the inhabitants of the north part of said city, that the said city has maintained, now maintains, threatens to maintain and will maintain said nuisance unless restrained.”
To this petition the defendant filed the following ■answer:
“The said defendant, for answer to the petition of the plaintiff, says:
“(1) It admits that it is a corporation under the laws of the state and is a city of the'second class; that it did at the time this action was begun, and a long time prior'thereto, discharge its sewage at a place near to said city on the north thereof; that said place was until the summer of 1903 the channel of the Republican river, but that before the beginning of this action the said Republican river had abandoned this channel at its ordinary stage, except that Wolf creek and Lost creek, two tributaries of said Republican river, have continued to flow therein. The defendant avers that in 1901 the said defendant, being then a city of the second class, by due process of law obtained the lawful right to and did construct a sewer and connect the same with the said Republican river at the place aforesaid, and has ever since maintained the same.
“ (2) For further answer the defendant says that it denies each and every averment and allegation in said petition,' except as hereinbefore admitted.”
The facts stated in paragraph 1 of the answer being true, no reply was filed, and the defendant moved for judgment on the pleadings.
Concordia is a city of the second class. In 1887 the legislature passed an act relating to sewerage and drainage in such cities, section 3 of which reads as follows:
“Such city shall have authority to lay sewer pipes and drains and connect the same with any creek, ra vine or river at any point within five miles of the. corporate limits of said city; and for this purpose the right of eminent domain is hereby granted to cities of the second class.” (Laws 1887, ch. 102.)
Section 4 prescribes the method by which the right-of eminent domain granted in section 8 may be exercised, and provides for the payment of damages to any' person injured by the laying of pipes or drains to a creek, ravine or. river, whether the pipes or drains are laid through his land or he is otherwise damaged.
The district court regarded the sewer connection with the river as a work specifically authorized by the. statute referred to, and therefore lawful, whatever the consequences. In deciding the case the learned district judge said: “Where the law by one rule authorizes the, city to do what it has done it will not by some other rule of law enjoin- it from doing the same-thing.” Therefore the motion for judgment on the-pleadings was sustained, an injunction denied, and judgment rendered against the state for costs.
The allegations of the petition are so general that a question might have been raised if facts and circumstances are pleaded with sufficient certainty to show the city to be guilty of maintaining a public nuisance. However, no motion was made for a more full and definite statement., The defendant treated the petition as setting forth a cause of action for an injunction against a public nuisance, and filed an answer. The district court treated the case as if a nuisance were charged unless -the statute legalized what the city had done and was doing. Under these circumstances this, court will give the petition liberal interpretation against the city.
The disposal of sewage in a city is frequently a. serious problem. It may be practically impossible to devise a system adequate to the -needs of the city or within its ability to carry out which will not occasion inconvenience and discomfort to somebody. The mayor and council must meet the situation as best they cali. When their candid judgment has been deliberately exercised and the work has been properly plannéd and skilfully executed the rights of individuals must ordinarily be subordinated, so far as all incidental disadvantage and loss is concerned. The city is, however, .liable for negligence in the plan, construction and maintenance of sewers, as of other* public works, and the right to build sewers and drains implies no right to create á nuisance, public or private. In the case of The City of Leavenworth v. Thomas Casey, McCahon, (1 Kan., Dass. Ed., 545) 125, the syllabus reads:
“It is the duty of a municipal corporation to build a sewer so that it will not be a nuisance to a neighborhood, as much as it is to avoid the samé result by keeping it in repair aftér it is built.”
In the case of City of Atchison v. Challiss, 9 Kan. 603, it wás said:
“Of course cities have no power, discretionary or otherwise, to create nuisances. And they probably could not abandon or. discontinue a sewer or dram so as to leavé an individual in a wórsé condition than' if no sewer or dfáih hád éve'r been constructed.” (Page 613.)
In the case of Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, 49 Am. Rep. 496, the opinion reads:
“A city has no more right to-plan or create an únsafe and dangerous condition of one of its public streets than it has to pían and create a public or common nuisance; and it is admitted that it has no right to do this.” (Page 490.)
In the case of King v. City of Kansas City, 58 Kan. 334, 49 Pac. 88, the syllabus reads r
“In devising a plan of sewerage the municipal authorities of a city are vested with a large legislative discretion, and if .it is exercised in good faith the city is ordinarily not liable for incidental injuries to property which are solely attributable to the plan.
“In such cases, however, if, through any negligence in carrying out the plan or in constructing or maintaining the sewers, the property of a private owner is. injured, a liability will arise.
“The collection and précipitation of water or sewage upon the private property of an owner, in such a way as to constitute a direct invasion of the owner’s rights, and in the nature of a trespass upon his property, will create a liability against the city, regardless of the plan upon which the sewer is constructed.”
Such conduct may perhaps be classed as an excess or abuse of corporate power rather than as the negligent exercise of it, but whatever descriptive term may be used thé principie is sound, and there can be no. doubt but that if the same or similar acts should result in a public and common' nuisance instead of a. private one merely the public would have the same right to protect itself as an individual.... The subject is summed up in volume 2 of the fourth edition of Dillon on Municipal Corporations, in section 1047, as follows:
“Although a municipality having the power to. construct drains and. sewers may lawfully cause them to be built so as to dischargee their refuse matter into the sea, or natural stream óf water, yet'this right must be so exércised as not to create a nuisance, public or private. If a public nuisance is created, the public has a remedy by .a public prosecution; and. any individual who suffers special injury therefrom may recover therefor in a civil action.”
In Joyce on Law .of Nuisances, in section 284, it is. said: ■
“Where municipal, gttasi-municipal and public bodies, generally proceed to exercise or do exercise their powers, in constructing and maintaining great public works of a sanitary nature, such as a sewerage system, and the question of the extent of or limitations upon their powers has come before the courts, these powers and the rights of the public and of private individuals in connection therewith have occasioned much discussion. But notwithstanding certain decisions not in harmony herewith, it may be stated that even though a municipality or other body has power to construct: and maintain a system of sewers, and although the work is one of great public benefit and necessity, nevertheless such public body is not justified in exercising its power in such a manner as to create by a disposal of its sewage a private nuisance without making compensation for the injury inflicted or being responsible in damages therefor or liable to equitable restraint in a proper case, nor can these public bodies exercise their powers in such a manner as to create a public nuisance, for the grant' presumes a lawful exercise of the power conferred and the authority to créate a nuisance will not be inferred.”
The legislature may authorize many things to -be done which create disturbance, annoyance, discomfort and affect health, but which must be endured by private parties unless some constitutional mandate be violated. Thus in Railway Co. v. Armstrong, 71 Kan. 366, 80 Pac. 978, 1 L. R. A., n. s., 113, 114 Am. St. Rep. 474, the syllabus -reads:
“An authorized business properly conducted at an authorized place is not a nuisance, for . whatever .is lawful can not be wrongful; and the owner, of a railroad, thus authorized and operated, is not liable in damages to one whose residence is permeated by .smoke, cinders and gas emitted from the engines to such an extent as to be injurious to the health and comfort of the inhabitants.” .....
As against the public the, legislature may go further and direct or permit that to be done free from liability to state prosecution, civil, or criminal, which, without the statute, would be a. public nuisance. The legislature is the judge of what the public good requires.
In any action attacking what is claimed to be a pub-lie nuisance the first question must always be, Has the legislature authorized it? In determining this question certain rules of interpretation are- well established. In volume 2 of the third edition of Wood on Nuisances, in sections 757 and 758, it is said:
“An individual or corporation acting strictly within the scope of legislative .power can not be indicted for a public nuisance... The legislative grant is á license to do the act and operates as & complete and full immunity from prosecution; either civilly or criminally, bn the part .of the public. But it by no means follows that because an act is. done under legislative authority the person doing the.act can not be punished therefor by indictment if the act creates a public nuisance. If the act is in excess of the power given, dr if it is done in a manner not within the reasonable contemplation of the legislature, to be gathered frbm a fair construction of, the grant — as if it is not a ñecéssary and probable result of the exercise of the. power given — the act will be no protection against liability, both civilly ánd. criminally. It is only against such consequences as are fairly withiti the cdhtemplation of the legislature in conférring the authority, ánd such fesülts as áre necessarily incident to its beiiig doné — in other words, such results as are the.natural and probable consequences •of and exercise of the power at .all — that thé. grant operates as.a protection. Beyorid thát it.affords no protection; Whatever. . . : The right given, however, iri order to Warrant the erection of a public nuisance, must be cl.éáriy Withiri the scope of the grant, ánd must fairly be Within contemplation of the legiSlátüre iri ebrifeirnig the power;”
In Joyce on Law of Nuisances a stricter rule is derived from the decided cases:
“In..such, cases, the statutory sanction.necessary to justify such act must , be given, either, expressly or by clear and unquéstidriablé implication from thé.powers •conferred, so as.to show that thé íegisláture intended and contemplated the doing of the very act in question. BUch statutes should receive a strict construction, and It will not be assumed that the legislature intended to .authorize a nuisance unless, this is the necessary result of the powérs granted.” (§ 72.)
In the case of Morse v. Worcester, 139 Mass. 389, 2 N. E. 694, the opinion reads:
“When the legislature authorizes a city or town to •construct sewers, or to use- a natural stream as a sewer, it is not to be assumed that it intends to authorize thé city or town so to construct its sewers, or so to use the stream, as to create a nuisance, unless this is the necessary result of the powers granted. On the contrary, if it is practicable to do the work authorized without creating a nuisance, it is to be presumed that the legislature intended that it should be so done. This principle has been recognized and applied in many cases. ... In the case at bar, the legislature authorized the city of Worcester to use Mill brook as a sewer; by necessary implication, the statute authorized it to empty its sewage into Blackstone river; but we can not presume that it was the intention of the legislature to exempt the city from the obligation to use due care in the construction and management of its works, so as not to cause any unnecessarily injurious consequences to the rights of others. If it is practicable to use any methods of constructing the sewer, and, as a part of the construction, of purifying the sewage at its mouth, at an expense which is reasonable, having regard to the nature of the work and the magnitude and importance of the interests involved, it is the duty of the city to adopt such methods.” (Pages 391, 392.)
The opinion in the Morse case cites Att.-Gen. v. Leeds Corporation, 5 L. R. Ch. [Eng.], *583. There an act of parliament was interpreted to authorize the drainage of sewage into a river in such a manner as not to create a nuisance. In deciding the case Lord Chancellor Hatherly said:
“I think the true answer is that which had occurred to us before we called on Sir Roundell Palmer, namely, that when any person finds that the legislature has authorized a work to be done (and, of course, the force of this is increased by the view we have taken, that the true construction of the act is that-it is to be done without creating a nuisance), he is not to assume it will create a nuisance. On the contrary, the presumption would be that the board would not do anything unlawful. It is lawful for them to make the sewers, it is lawful for them to conduct the sewage into the river Aire, but they are to do it in such a way as not to create a nuisance.” (Page *594.)
This seems to be a sensible view, and authorities need not be multiplied. If the legislature authorizes or directs something to be done by a city it will be presumed no nuisance was intended unless such be the natural and necessary result of the work.
The act of 1887 conferred no new power on the city by declaring that it should have authority to lay sewer-pipes and drains and connect them with any creek, river or ravine as an outlet. It had that power without the statute. (10 A. & E. Encycl. of L..237, et seg.) The declaration of the power was made, merely for the purpose of attaching to it the right of eminent domain. The obligation .to avoid committing a public nuisance was not weakened.
It can not be the law that this act authorizes a city to pour the contents of its sewer mains into any dry ravine it may find convenient to. its borders, infect a populous neighborhod with disease, and then, in an action to abate the nuisance, exculpate itself by the simple, answer: “The sewers were connected with a ravine.” Perhaps some sewage may properly be emptied into a ravine, but manifestly the thought of the statute is that ravines may be utilized for drainage. Cities may lie in close proximity to each other on the banks of a river. It is impossible to believe that one city may empty all the filth of its sewers at the in-take of another city’s water-supply and then justify by saying: “The sewers were connected with the river.” A city has no right arbitrarily to select the point of outlet for its sewers regardless of the public health and comfort. It may take its sewers to the river, but it must not be indifferent to the very interests to be sub-served in building sewers. '
There is nothing unusual about the fact that the water of the Republican river changed' to another channel. The valleys of Kansas are filled with channels, old and new, from which the water of the rivers has departed. The effect upon the sewer in question is the same as if a sand-bar had blocked the mouth of the sewer, dammed up its contents, and caused them to overflow the streets; or as if a bar had formed opposite the mouth of the sewer in such a way as to form a foul and pestilence-breeding basin. In planning and in maintaining any sewer system provision must be made for that which naturally and reasonably may be anticipated.
The petition is such that the court does not know what facts may be relied upon to show that the city is at fault. Assuming that a public nuisance exists, the first count of the answer states no defense.
The judgment of the district court is reversed and the cause is remanded for trial. | [
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The opinion of the court was delivered by
Benson, J.:
This was a prosecution for the unlawful sale of intoxicating liquors and for keeping and maintaining a common nuisance, commenced by the attorney-general in the district court of Leavenworth county on the 20th of August, 1907. The information was filed by Charles D. Shukers, special assistant attorney-general, who caused the warrants to issue in this and several other cases of the same nature at that time. Mr. Shukers left Leavenworth on the evening of August 21, at which time none of the warrants had been returned.
On or about August 23 the sheriff and county attorney of Leavenworth county called on the attorney-genbral in his office at Topeka relative to these prosecutions, and during the interview the .attorney-general directed the county attorney to attend to the cases and to keep him informed of all procedure therein. The sheriff’s return showed that certain property had been seized, as commanded in the warrant, and thereupon, on August 26, a notice was issued by the clerk, as required by section 2495 of the General Statutes of 1901, describing the property so taken, and notifying the defendant and all persons claiming an interest in the property to appear in the district court-room on September 7 and answer the complaint made against such property and show cause why the same should not be adjudged forfeited and destroyed.
On September 7 the defendant, T. F. Foren, filed his answer, consisting of a general denial, and demanded an immediate trial of the ownership of the property. One Mike Kirmeyer filed his interplea and answer, and asked the court therein to fix a time for a trial of the property, but took no other action in the case. The county attorney requested a continuance until such ■time as he could communicate with the attorney-general and subpoena the witnesses, which request was by the ■court refused and the trial ordered to proceed. The •county attorney thereupon offered in evidence the return of the sheriff on the warrant, showing the schedule of property seized, which was: “1 front bar; 1 back bar; 2 dozen glasses; 1 ice-box.” The defendant offered no evidence, and thereupon the court rendered a judgment finding the defendant “not guilty as ■charged,” and ordered the property returned to him. The attorney-general filed a motion for new trial on 'September 10, 1907, which was by the court denied. Exceptions were duly taken by the attorney-general, who brings the case here for review.
An affidavit of the assistant attorney-general was read in support of the motion for a new trial, from which it appeared that when he left Leavenworth on “the 21st of August the warrant had not been returned, and, as the notice could not then be issued, he requested the clerk of the court to furnish him with information concerning any proceedings taken in the case, which the clerk did by mailing to him, on the 29th day of August, a statement, as follows:
'“Hon. F. S. Jackson, attorney-general, Topeka, Kan.:
“Sir — Pursuant to your request of the 28th, I herewith submit the following [omitting reference to the other cases therein]: Case No. 8806, State v. T. F. Foren; defendant arrested, gave bond, property seized and notice served.”
This was duly received at the attorney-general’s •office, and it does not appear that any further inquiry concerning the notice or the date fixed for answer was made by that officer or his assistant. The clerk testified on the hearing of the motion that after mailing this statement he called up the attorney-general’s office and asked the assistant, over the telephone, if it was what was wanted, and that he received an answer that it was satisfactory.
Upon the foregoing facts it is urged that the action 'of the court in refusing the application of the county attorney to postpone the trial to a later date, and in proceeding to trial on the answer day, was an abuse of discretion. The statute is as follows:
“Whenever any intoxicating liquor or other property shall be seized under such a warrant, whether an arrest has been made or not, a notice shall issue within forty-eight hours after the return of the warrant, in the same manner as a summons, directed to the defendant or defendants in such action and to all persons claiming any interest in the intoxicating liquors or other property, and fixing a time and place at which all persons claiming any interest therein may appear and answer the complaint'made against such intoxicating liquors or other property, and show cause, if any they have, why the same should not be adjudged forfeited and ordered destroyed. Such notice shall be served upon the defendant or defendants in the action in the same manner as a summons, if they be found within the jurisdiction of the court, and a copy thereof shall also be posted in a conspicuous position on the place where such property was seized. If at the time for filing answer said notice has not been duly served, or other sufficient cause appear, the time for answering may be by the court extended, -and such other notice issued as will supply any defect in the previous notice and give reasonable time a,nd opportunity for all persons interested to appear and answer. At or before the time fixed by notice, any person claiming an interest in the intoxicating liquors or other property seized may file his answer in writing setting up his claim thereto, and shall thereupon be admitted as a party defendant to the proceedings against such liquor or other property. The . complaint or information and answer or answers that may be filed shall be the only pleadings required; and at the time fixed for answer, or at any other time then to be fixed by the court, a trial shall be had in a summary manner before the court of the allegations of the complaint or information against the liquors or other property seized; and whether any answer shall be filed or not, it shall be' the duty of the county attorney to appear and adduce evidence in support of such allegations.” (Gen. Stat. 1901, § 2495.)
The prosecuting officers knew that a notice had been issued, and that some date had been named for answer. It is true that the attorney-general did not know the date, but the county attorney was assisting in the prosecution, upon the attorney-general’s direction, and it must be presumed that he knew the fact; but, whether known to the prosecuting officers or not, it was a matter incident to the regular progress of the case that could have been ascertained upon inquiry. The fact that the date was omitted from the statement furnished challenged attention and naturally suggested further inquiry.
The statute specifically states that “at the time fixed for answer, or at any other time then to be fixed by the court, a trial shall be had in a summary manner.” This gives the court discretion to proceed to the trial on the answer day or to fix a later date. It is true that this discretion should be exercised reasonably, in accordance with the rules of orderly procedure, and not according to the mere arbitrary will of the judge. Various definitions of judicial discretion have been given (4 Words & Ph. Jud. Def. 3855), but it is difficult, if not impossible, precisely to define its limitations. Discretion is the freedom to act according to one’s judgment; and judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence — to act upon fair judicial consideration, and not arbitrarily. When so acting in a matter committed to the discretion of the court by the law the judgment ought not to be overruled by a re viewing court, for to do so would be to deny the right to exercise the discretion given by the law itself.
By the mandate of the statute the court was directed to try summarily the issue arising upon the information and the answer, either upon the day fixed for answer or at any other time to be fixed by the court. The time of trial was then to be determined in the discretion of the court. By virtue of the language of the statute the parties knew that the trial might take place on the answer day, if there was ho good reason, either in the condition of the docket or situation of the parties, requiring delay. No reason was given to the court for the failure to subpoena witnesses or to procure their testimony. The abstract filed by the state says that the county attorney “stated to the court that these cases had been prepared and filed by the attorney-general, and asked that the time for hearing be postponed until the attorney-general could be notified and witnesses procured.” No reason was given why these steps had not been taken before. Some additional reasons are given in the attorney-general’s affidavit, read on the motion for a new trial, but they were not presented when the application for delay was made. In that affidavit it is stated that the attorney-general had no personal knowledge of the date fixed for answer, that the witnesses did not reside in Leavenworth county, and that he was taken by surprise. Still no reason was given why the testimony of the witnesses had not been taken or an attempt had not been made to procure their attendance. It will be noticed that the statute requires the prosecuting officer to appear and adduce evidence in support of the allegations that the property was used for the unlawful purpose, whether any answer is filed or not. So it is not necessary to wait for an answer before preparing to make proof. We can not say that the court abused the discretion given to it in ordering the trial to proceed upon the answer day, or in refusing a new trial, although if it had granted the delay asked no error would have been committed nor injustice done.
It is further urged that upon the proof offered by the county attorney, which was the return showing the seizure of the articles named, a prima, facie case was made out, and that the order to return the property was erroneous. The issue arising upon the answer was upon the unlawful use of the property. This was affirmed by the information, and denied by the answer. The statute makes the finding of intoxicating liquors in the possession of one not authorized to sell the same, except in a private dwelling-house, prima facie evidence that they are kept for sale or use in violation of law. It also provides that the finding of a place fitted up with a bar or counter and other paraphernalia usually connected with places where intoxicating liquors are sold as a beverage, and of a stamp showing payment of the special revenue tax for the sale of intoxicating liquors at such place, is prima facie evidence • that the person to whom the stamp was issued was maintaining a common nuisance. The sheriff’s return, however, did not show the facts necessary to the operation of this statute, and failed to show that the articles seized were used in maintaining a nuisance.
The judgment included not only a finding upon the particular issue tried but also that the defendant was not guilty, and other matters not within this issue, but this is surplusage and will not prevent a trial of the principal issue in the orderly course of practice. The order directing the return of the property seized is .affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Numerous assignments of error have been presented, but in argument only one has been seriously discussed. It is insisted that the ordinance under which the appellant was prosecuted is void. The argument is based upon the rule announced by this court in the case of In re Van Tuyl, 71 Kan. 659, 81 Pac. 181. In that case it was held by this court that the purpose 'of the statute authorizing cities to enact ordinances for the suppression of the sale of intoxicating liquors as a beverage containing substantially the same provisions as the statute enacted for that purpose was to enlarge the facilities for maintaining the general policy of the state upon that subject, and cities in the exercise of the power conferred by this statute must fully comply with its provisions, and an ordinance enacted under this statute which provided for a less punishment for the offense of selling liquor than was prescribed by the statute was void. It was further said that a part of the object of this statute was to have the law of each municipality in the state uniform with the provisions of the statute, so that offenders would be dealt with alike throughout the state. It is urged that according to this view a want of uniformity in the punishment prescribed for violators of the law, because of dissimilarity in the condition of jails, would as effectively. destroy the uniform operation of the law as an express difference in the punishment prescribed by or dinance. The ordinance in question, enacted in pursuance of this statute, provides for imprisonment in the city jail of Wichita. It is insisted that city jails are not uniform in quality throughout the state; that some may be reasonably comfortable, while others are so exposed to the weather or other uncomfortable and unhealthy conditions as to imperil the lives of those confined therein; that this wide difference in the character of city prisons would make the punishment very unequal if all offenders were to-be committed to the city prison, and therefore any ordinance is void which so provides.
The logic of this argument seems to go to the extent that incarceration in a clean, comfortable city jail would be less repressive upon offenders than in one which might be offensive and unhealthy, and would amount to a milder degree of punishment in one place than another. We do not concur in this view. The statute, by not prescribing whether the imprisonment imposed shall be in the jail of the county or in the city prison, has left the question open for the determination of the city. It is impossible to make all prisons uniform in character, or equally comfortable; any of them is bad enough. If a city has a suitable jail, this is sufficient. If not, it can arrange for the use of the county jail. The legislature can do no better than to trust the officers of the city in this respect. If a joint-keeper in any city thinks the jail there worse than in other cities, the law will permit him to move his business to wherever he can find a jail that is satisfactory. We do pot think the ordinance is void, and therefore the judgment of the district court is affirmed.
The plea in bar is based upon the idea that a repeal -of the ordinance nullified all proceedings had thereunder, including the judgment and sentence. The decided •cases are not entirely harmonious upon this subject. The great weight of authority, as we think, is to the effect that a repeal of an ordinance before judgment places all further proceedings at an end. Before judgment the prosecution is engaged in ascertaining-whether the provisions of the ordinance have been violated by the defendant or not. If the ordinance is repealed before this fact has been ascertained, then the-inquiry becomes immaterial and useless, as the offense' no longer exists, the law authorizing the proceeding-having been extinguished. If the repeal occurs after-sentence has been pronounced, the court acts upon the-judgment and not upon the ordinance. By the judgment it has been judicially determined that the defendant violated the provisions of the law and incurred the liability therefor. The will of the legislative representative of the people was thereby fulfilled, and it is: then beyond the reach of further legislative action. It. has been said that, if the legislature could nullify the-judgments of courts which have been regularly pronounced under a valid law by repealing the law, this-would amount to an appeal from a judicial to a legislative tribunal, which is contrary to well-established: and fundamental principles.
The question is quite fully discussed in the case of In re Kline, 70 Ohio St. 25, 70 N. E. 511, which was reported in 1 A. & E. Ann. Cas. 219, where the cases are-collected in the notes. Practically the same conclusion, is reached in the case of The State v. Boyle, 10 Kan. 113. We think that after final judgment and sentence-the repeal of the ordinance under which the conviction, was had does not relieve the defendant from the sentence. In this case the ordinance was repealed nearly six months after the defendant was sentenced, and therefore can not affect the execution of the judgment-
The plea in bar is denied. | [
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The opinion of the court was delivered by
Porter, J.:
The instructions properly told the jury that the burden was upon the plaintiff to prove- that the signature was not genuine and that he must do so by a preponderance of the evidence. On this very material issue the jury were unable to agree, but for some reason, which is not apparent, the court refused to set aside the verdict and rendered judgment. This was error. If the signature was genuine the bank was obliged to pay, unless there was something in the appearance of the check to excite suspicion or there was some fact known to the bank sufficient to put it upon inquiry. True, the jury found that the bank was guilty of negligence in paying the check, but they also found in what the negligence consisted, and no one of the things, or all of them combined, would constitute negligence.
It is not negligence for a bank to pay a depositor’s check written on the form of another bank. There is no invariable rule by which customers of a bank are required to use a blank check prepared by the bank, and in the ordinary course of business it is of very common occurrence to use a check of another bank, erase the name and insert that of the bank in which the depositor’s account is kept. This occurs every day in all banks.
Nor did the fact that the chéck was for an amount in excess of the 400-dollar letter of credit tend to prove negligence or put the bank upon inquiry. The letter was given the plaintiff to establish credit with other banks or persons with whom he might have business. His account was subject to check, and he needed no letter of credit to oblige the bank to pay checks drawn by himself. Again, the fact that some days previously the bank had paid a check for $100 drawn by the plaintiff on a regular blank of the defendant was wholly immaterial and not sufficient to excite suspicion as to the genuineness of the check in controversy. The last circumstance found by the jury is that the check was not filled out by the plaintiff, but there was nothing unusual in this, even if the plaintiff had not been in the habit of having others fill out his checks.
“The rule requiring the bank to know the customer’s handwriting was always confined to requiring a knowledge of his signature. Neither any rule of law nor the ordinary course of business renders it a matter of suspicion that the body of the check or bill is not written in the handwriting of the maker or drawer.” (2 Morse, Banks & Banking, 4th ed., § 480.)
The rule is stated in volume 2 of the fourteenth edi tion of Daniel on Negotiable Instruments, section 1654a, as follows:
“But a bank is not bound to know more than the signature of the drawer of the check; for in the ordinary course of business the body of the check is as often as otherwise filled up by a clerk, and it is by no means a matter of suspicion that it is not filled up in the handwriting of the drawer. If the rule were otherwise, a bank could never safely pay a check filled up in a handwriting not the drawer’s until it had inquired of the drawer whether it was properly filled up. And to require this would greatly embarrass commercial transactions.”
(To the same effect see Redington v. Woods, 45 Cal. 406, 419, 13 Am. Rep. 190; Bank of Commerce v. Union Bank, 3 N. Y. 230, 234; National Park Bank v. Ninth National Bank, 55 Barb. [N. Y.] 87, 124.)
If this check had been genuine and the failure of the bank to pay it résulted in loss to the plaintiff the bank would have been liable to him for all damages resulting therefrom, and none of the circumstances mentioned by the jury would have relieved the bank from its liability. Of course, a false or fraudulent alteration in any material matter in the body of the check, after signature, would have constituted technical forgery, and the bank would have been liable to the plaintiff, unless by some act of negligence upon his part he furnished the opportunity for the fraud which deceived the bank, in which case he must suffer the just consequences of his own carelessness and bear the loss. The jury found that the plaintiff was guilty of negligence in signing his name to some blank or partly filled out paper in the hands of a stranger, and it is insisted that on the facts found judgment should be directed for the defendant. There was no motion or request for judgment notwithstanding the verdict, and it is unnecessary to consider the effect of this finding.
The motion to strike from the petition all allegations with reference to the payment of the 100-dollar check and the giving of the letter of credit should have been sustained, since .they were averments of immaterial facts which added nothing to the plaintiff’s cause of action. ' '
The failure of the jury to agree upon one of the most material, issues in the case, as well as the inconsistent findings as to the negligence of the bank, require that the judgment be reversed and a new trial ordered. | [
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The opinion, of the court was delivered by
Johnston, C. J.:
In a suit brought by Arch Piper, as guardian for Priscilla J. Lanham, a person of unsound mind, against John F. Piper and Angeline Summers, he alleged that Mrs. Lanham was the. owner of an undivided one-fourth interest in a half-section of land formerly owned by John F. Piper,1 sr., father of Mrs. Lanham and the defendants. In one count he asked for the possession of the land, for $500 as damages for being kept out of possession, and for rents and profits. In another count the plaintiff stated the way in which his ward derived her interest in the land, alleging in sub stance that in 1897, John F. Piper, sr., having died, George Bennett, the administrator of the Piper estate, was about to sell the land under the direction of the probate court; that an agreement was made between the heirs of John F. Piper, sr., that the land- should be purchased for their benefit and the title thereto taken in the name of defendant John F. Piper; that to obtain the money with which to purchase the land the heirs procured a loan, for which they gave a note, and to secure its payment a mortgage upon the land was also executed; that it was agreed that if the rents and profits were insufficient .to pay the interest on the mortgage each heir should share in paying the deficiency, and that if any one of them failed to pay his pro rata share his interest should cease and become the property of the remaining purchasers. It was alleged to have been the understanding that all of the heirs were to be included in the transaction, and that a written agreement was prepared and signed by some of the parties, but plaintiff was unable to state whether all in fact did sign it, as the writing was taken and retained by defendant Piper. What purported to be a copy of the agreement, so -far as it was executed, was set forth, but it appeared not to be signed by the defendant Piper or by several others of the heirs. It was further alleged that one of the heirs lost her interest by failing to pay a share of the charges against the land, and that another had assigned her interest to defendant Piper. The plaintiff asked the court to determine the respective interests of the parties in the land and make a partition -among them.
In his answer, aside from other averments and defenses, John F. Piper admitted the purchase of the land from the administrator, and also that there had been negotiations looking to the purchase of the land and the holding of the same for the benefit of all of the heirs, but he alleged that the agreement was never consummated, as all of the heirs did not enter into the contract. He also alleged that, while the plaintiff had made some payments toward the excess of the charges over the rents and profits of the land, they were received with the understanding that the contract would be completed, which was never done; that plaintiff had failed to pay other and later deficiencies; and that he (Piper) was ready and willing to return the money received from plaintiff under the proposed agreement. On the trial of the issues the verdict was against the plaintiff, and he complains mainly of rulings on the admission of testimony.
The plaintiff offered proof of conversations between some of the heirs and John F. Piper as to the purchase of the land, the placing of the title in the name of piper, and his holding the land in trust for the heirs. Plaintiff also offered proof of admissions by Piper that he had taken, and was holding, the land in trust for the others. Testimony was excluded which tended to show that when Piper and another applied for the loan with which to buy the land it was then stated that the land was to be conveyed to Piper, who was to hold it for the benefit of the heirs, and that the party from whom the money was obtained insisted that all of the parties interested in the land should sign the note and coupons. The record discloses that most of the heirs did sign the note and coupons given to obtain the purchase-price of the land. The testimony tended to show a resulting trust, and should have been admitted. While it is required that trusts concerning lands shall be in writing, signed fiy the party creating the same, an exception is made as to those arising by implication of law. (Gen. Stat. 1901, § 7875.) If by agreément and without fraudulent purpose the plaintiff’s ward and other heirs paid the consideration of the purchase, or of certain interests in the land, and vested the title in Piper, who was to hold the land for their use and benefit, a trust resulted by operation of law in their favor, and the fact that some of the agreements and elements of the trust are not in writing does not prevent its enforcement. (Franklin v. Colley, 10 Kan. 260; Fink v. Umscheid, 40 Kan. 271, 19 Pac. 623, 2 L. R. A. 146; Barlow v. Barlow, 47 Kan. 676, 28 Pac. 607; Rayl v. Rayl, 58 Kan. 585, 50 Pac. 501; Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52; Reemsnyder v. Reemsnyder, 75 Kan. 565, 89 Pac. 1014; Gen. Stat. 1901, § 7882.)
Every agreement and circumstance tending to show that Piper was acting as trustee and holding the land for the heirs, or some of them, was competent. The trust relation may be founded partly on writings and partly on oral agreements, as well as in the conduct of the parties and the circumstances in connection with the matter. So testimony of the signing of the note and coupons upon which the money to buy the land was borrowed, and also the writing acknowledging the receipt of money for-the purchase of an interest of one of the heirs, was admissible. Testimony, -too, of the admissions of Piper, whether oral or in writing, that he was acting in the capacity of a trustee should have been received. Any act of his in recognition of the trust, while holding the land, such as the receipt of money from The plaintiff and others in payment of a proportionate share of the charges upon the land where they exceeded the rents and profits derived from it, as well as his purchase of the interests acquired by some of the heirs under the trust agreement, would tend to establish the trust, and was therefore admissible. Some testimony of that character was admitted, but much that was material and competent was excluded. An objection to some of the testimony .excluded was' that the witness occupied the privileged relation of attorney, but the ruling of the trial court was not placed on that ground. Later in the trial some testimony, similar to that excluded, appears to have been received, but not in such a way or to such an extent as to cure the error that had been committed.
It is argued that plaintiff based his right of recovery upon a written agreement, and for that reason defendant Piper’s admissions and the conversations that were had outside of that writing were not competent testimony. Plaintiff did set forth a purported writing, signed by some of the heirs but not by John F. Piper, which upon its face appeared to be incomplete. There was an averment, too, that plaintiff was unable to state whether all of the parties had signed it, as the writing had been taken and retained by Piper, but that the terms written in it had been fully accepted and agreed upon by all of the parties. The signing of this paper by plaintiff did not preclude proof of all of the circumstances, including the writing itself,' which tended to show a trust in the land, and the evidence offered did not contradict the terms embodied in the writing. If the transaction had the elements of a resulting trust the failure to complete the contract showing the terms agreed upon at the time the land was purchased will not defeat the trust.
The trial court properly advised the jury that, in ascertaining, whether the land was purchased by Piper as trustee for the others or solely upon his own account, they might “take into consideration any writing that may have been drawn up at the time, the conversations of the parties, their acts, conduct, and all the circumstances, in connection with the matter.” The exclusion of testimony which came within this rule requires a reversal of the judgment and the remanding of the case for another trial. | [
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The opinion of’the court was delivered by
Benson, J.:
This is an original action in mandamus to require the defendant to collect and tax as costs, in civil actions tried by a jury, fifty cents for each juror, as provided by a statute which the state claims is still in force. The answer admits that such fees have not been collected and taxed as costs in the court of which defendant is clerk, but avers that such omission was caused by orders of the court forbidding such action, and that the statute relied upon has been repealed. The evidence shows that upon request made by the proper county authorities for the collection and taxa tion of such fees the court, attention being called to such request, ordered that such fees should not be collected or taxed. The orders were made in open court, but do not appear to have been entered on the journal.
Chapter 89 of the General Statutes of 1868, fixing the fees of certain officers and persons, among other numerous provisions contains the following:
“Section 1. That the officers and persons herein mentioned shall be entitled to receive for their services the fees and compensation herein allowed, and no other, except as may be otherwise provided by law.”
“Sec. 16. Jurors shall be paid the following fees out of the county treasury: For attending before any court of record, for each day’s attendance, $1.50.”
“Sec. 18. In each civil action, tried by a jury, in the district court, upon the verdict being delivered to the court, and before judgment is rendered thereon, each juror shall be entitled to receive fifty cents from the successful party, which shall be taxed in the costs against his adversary; and such fee, when so paid, shall be deducted by the clerk from the fees of said juror, in the jury fee bill, before certifying the same to the board of county commissioners.”
Section 16 was amended by chapter 84 of the Laws of 1871, increasing the fees of jurors to $2 per day, and was reenacted with no other change.
■ The state alleges that the clerk has failed to perform the duties required by section 18. The defendant alleges that this section was repealed by chapter 131 of the Laws of 1897, an act which has the same title as the act of 1868, and which fixes the fees of the same officers and has the same general scope, but changes the fees for the same services in several instances. It fixes the fees of other officers, and contains other provisions not in the old law. Original section 18, upon which the state relies, was not included in the new act, and the defendant claims that it was repealed because it was so omitted and because" of the following repealing section:
“All acts and parts of acts heretofore passed, general or special and now in force, that conflict with the provisions of this act are hereby repealed.” (Laws 1897, ch. 131, § 23.)
The contention that the section in question was repealed is based upon the proposition that the act of 1897 covers the subject-matter of the former law and was designed to take its place, and that the provision requiring the payment of a part of the jury fees by a party is in conflict with section 16 of the old law, being section 17 of the new one, which provides that jurors’ fees shall be paid out of the county treasury. Considering these provisions together as parts of the same statute, and in connection with the clause that the jury fees so paid by a party shall be deducted from the jury fee bill which is to be certified for payment by the county, the legislative intent is obvious, and no real conflict appears; and if section 18 is still in force there is no more conflict now than before. That the act of 1897 does not entirely supersede that of 1868 and make the latter inoperative, or effect a repeal by implication, is apparent from the fact that many important provisions of the old law are not found in the new one, but are necessary to give effective operation to many of its provisions. The argument that the section in question was repealed by omission or by the repealing clause of the later act is not persuasive (Stephens v. Ballou, 27 Kan. 594; Hornaday v. The State, 63 Kan. 499, 65 Pac. 656), and we conclude that it is still in force.
The statutes referred to have been examined and this opinion written because of the prevailing uncertainty and divergence of the practice concerning this matter in the different judicial districts, but the peremptory writ will not be allowed. We ought not to coerce the clerk to attempt the collection and taxation of fees in cases no longer pending wherein the liability of the parties to such charges has been determined by the final action of the court, which can not be reversed in this manner; and we can not presume that the clerk will fail to perform his duty in the future in each case as occasion may require. (High’s Ex. Leg. Rem., 3d ed., §§ 12, 36,144.) A general order will not be made in anticipation of future delinquencies, for it is presumed that the law as now interpreted will be observed.
The writ is denied. | [
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The opinion of the court was delivered by
Johnston, C. J.:
L. R. Wright recovered a judgment against the Atchison, Topeka & Santa Fe Railway Company of $206.35 for losses arising from the negligent shipping of cattle over the defendant’s railroad. It was based on two causes of action, one for damage resulting from a negligent shipment in April, 1904, from Emporia to Kansas City, and another in February of the same year, between the same places.
As to the April shipment, it appears that a car-load of plaintiff’s cattle was in a wreck’, which resulted in breaking the leg of one animal and in bruising the other cattle, -as well as in the loss of market by reason of delay in transportation. The shipping contract contained a provision that before a recovery could be had for loss or injury to the cattle during transportation the shipper should give a written notice to an officer of the company, or the nearest agent, before the removal of the stock from the place of destination or before they were intermingled with other stock. Formal notice was not given of the loss occasioned- by the negligence of the company in the April shipment before the sale of the cattle, and it is contended that no recovery can be had. A formal written notice of the loss sus tained was not required. The representatives of the company were at the stock-yards when the injured cattle were received. They observed their condition and advised the consignees, who were looking for the arrival of the cattle, that they had been in a wreck. When the cattle did arrive these representatives of the company inspected them and advised that they be sold at once, which was done. Under recent decisions no notice was required as to some elements of the losses sustained, and in any event the purpose of the written notice was fully accomplished when the condition of the cattle was fully brought to the attention of the representatives of the company. After these representatives of the company, who were in charge of that branch of the business at Kansas City, had inspected the cattle, observed their condition, and then directed what disposition should be made of them, it is too late to insist that any other notice of loss would have afforded the company either information or protection. The railway company, having had a fair opportunity to examine the cattle and to ascertain the extent of the injury resulting from its negligence, has had the full benefit of the provision of the contract as to notice. (Cornelius v. Railway Co., 74 Kan. 599, 87 Pac. 751; Railway Co. v. Fry, 74 Kan. 546, 87 Pac. 754; Railway Co. v. Frogley, 75 Kan. 440, 89 Pac. 903; Darling v. Railway Co., 76 Kan. 893, 93 Pac. 612.)
As to the February shipment, written notice was not given as to the losses sustained, but as to the one item of $51.93 for loss of market no notice was essential. Loss in weight because of extra confinement was the other item of loss, and was fixed by the jury at $42.27. From the averment in the petition, as' well as from, the evidence, it seems that this loss was due, at least in part, to delay in transportation. Shrinkage in weight because of the unnecessary length of time the cattle were on the road to market would be an injury during transportation, and hence would come within the pro vision of the contract requiring notice. Shrinkage, or loss in weight, arising from delay after transportation has ended is not within the contract (Railway Co. v. Frogley, supra), but it can not be said that the loss in weight occasioned by the extra confinement in the cars was not, to some extent, the result of the great length of time that the cattle were confined in the cars on the way to market.
The objections to rulings on the admission of testimony are not deemed to be material, nor is it nécessary to consider further the objections to the instructions.
The recovery on the first cause of action of $113.15 is affirmed, but the judgment so far as it is based on the second cause of action will be reversed, unless the defendant in error shall remit $42.27, the item of loss found by the jury to have been caused by the extra confinement of the cattle; and, if that is done, judgment for the remaining item of $51.93 damages found to have resulted from the loss of market will be affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The appeal in this quiet title action once again presents to this court the familiar question whether a deed conveyed an estate in joint tenancy or tenancy in common. The issue framed requires a determination by this court of the constitutionality of K. S. A. 1969 Supp. 58-2270. If constitutional, then the further question arises concerning the application of the statute to the facts of this case.
The trial court held the statute unconstitutional, which resulted in a judgment to the effect that the deed in question created an estate in tenancy in common.
The facts are stipulated.
On May 21, 1945, the subject real estate, consisting of two separately described tracts, was conveyed by warranty deed to Roy N. Graves and Susanna M. Graves, husband and wife. The grantees were identified and described in the introductory clause of the deed, which reads as follows:
This Indenture, made this 21st day of May in the year of our Lord Nineteen Hundred and Forty Five, between H. A. Kepler and Bessie Jane Kepler (Husband and Wife) of Kansas City in the County of Wyandotte and State of Kansas of the first part, and Roy N. Graves and Susanna M. Graves (Husband and Wife), Or the Survivor of either, of Tonganoxie in the County of Leavenworth and State of Kansas of the second part.”
The granting and habendum clauses, respectively, referred to the grantees as “said parties of the second part, their heirs and assigns.”
Roy N. Graves died testate on December 7, 1964. His will was filed for probate and probation of his estate is now pending before the probate court of Leavenworth County. Susanna M. Graves died intestate on November 9,1966, and the probation of her estate is also pending in Leavenworth County.
On May 6, 1964, Roy N. Graves executed his last will and testament, which was duly consented to by Susanna. There is no dispute concerning the execution of the will and Susanna’s consent. By the terms of his will, Roy directed his executor to pay all of his debts, including funeral expenses, and then bequeathed and devised all of the residue of his property to Perry Walters, Sr., defendant herein, in trust for the benefit of Susanna, for and during her natural life. The trustee was directed to provide for the care, support and maintenance of Susanna and, if the net income from the trust was inadequate, the trustee was authorized and directed to use portions or all of the principal of the trust estate to properly maintain and support Susanna.
Roy’s will further provided that upon the death of Susanna, and after payment of all the expenses of the administration of the trust, the trust estate should be closed and the residue to be disposed of according to specific bequests, one of which was to Damon L. Freeman, a defendant-appellee herein.
Roy N. and Susanna M. Graves, on March 27, 1964, entered into a contract for the sale of one of the two tracts of the subject real estate. The validity of the contract is not disputed and it is agreed that this tract of real estate is subject to the rights of Lillian Slawson, Raymond Slawson and David Slawson, as purchasers under the contract.
An inventory was filed in Roy’s estate in which an undivided one-half interest in the subject real estate was listed.
Following the death of Susanna, plaintiff-appellant, Homer Davis, was appointed administrator of her estate. He instituted this quiet title action against Perry Walters, Sr., Trustee under the will of Roy N. Graves, deceased, Damon L. Freeman, the recipient of a specific bequest, other beneficiaries of Roy’s will; and certain other defendants not connected with the issues herein, but who apparently appeared in the chain of title.
In short, appellant claims that by reason of the provisions of K. S. A. 1969 Supp. 58-2270, the deed (1945) conveyed an estate in joint tenancy and that Susanna, as the survivor, acquired full title to the subject real estate on the death of Roy; and thus Roy’s estate has no interest in the subject real estate.
On the other hand, appellees claim that under the decision of this court in Riggs v. Snell, (1960), 186 Kan. 355, 250 P. 2d 54, the deed in question conveyed the subject property to Roy and Susanna as tenants in common and thus Roy’s estate is entitled to an undivided one-half interest in the remaining tract of real estate and in the proceeds of the sale of the tract previously sold. Appellees argue that 58-2270 is unconstitutional if applied retroactively to the date of the death of Roy N. Graves, violating the Fifth and Fourteenth Amendments to the federal constitution, in that it would deprive the defendant-trustee and the beneficiaries of the trust of their property without due process of law; and amounts to the impairment of vested rights by the unconstitutional assumption of judicial power by the legislature. Appellees further argue that even though 58-2270 is found to be constitutional, they attacked this deed within the time prescribed by the statute and gave the trial court substantial evidence to show the deed created a tenancy in common.
Following the trial below, the trial court found in pertinent part as follows:
“The Supreme Court of Kansas in the case of Riggs v. Snell, 186 Kan. 355, decided as a matter of judicial construction that a deed containing language identical with the language used in the deed in question in this case created a tenancy in common. However, the plaintiff contends that this court should apply the provisions of K. S. A. 58-2270 and declare that the deed in question created a joint tenancy.
“It is the opinion of this court that the deed in question at the time of its execution and delivery created a tenancy in common; that the rights of the grantees became vested upon the delivery of the deed in question; and that K. S. A. 58-2270 is unconstitutional and invalid because its effect is to impair the obligation of contracts.”
On appeal appellant contends 58-2270 is constitutional and should be construed together with 58-501, supra, that when the language of the Graves’ deed is measured by the two statutes, the result is the creation of a joint tenancy with a right of survivorship in Susanna. Appellant further claims the evidence offered by appellees in the trial below was insufficient to prove the deed created a tenancy in common under the requirements of 58-2270.
At the time of the decision in Riggs v. Snell, (1960), supra, G. S. 1949, 58-501, (amended in 1955, Ch. 271, § 1, now K. S. A. 58-501), insofar as pertinent to that decision read as follows:
“Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created: Except, That a grant or devise to executors or trustees, as such, shall create in them a joint tenancy unless the grant or devise expressly declares otherwise. . . .”
The portion of 58-501, above quoted, remains unchanged and constitutes the portion of the statute material to the issue herein.
This court recognized the concern of members of the Bar following the decision in Riggs v. Snell, supra, and a rehearing (Riggs v. Snell, 186 Kan. 725, 352 P. 2d 1056). The result was an affirmance of the former decision.
When the Riggs case came before this court in 1960, the court, as then constituted, relied on the mandate of the statute requiring language clearly expressing intention to create a joint tenancy and then held that the phrase “or the survivor of either,” following the names of the grantees in the introductory clause, did not make it clear that a joint tenancy was intended to be created. Previous cases in which 58-501 was given a similar construction are cited in the Riggs opinion.
The Riggs decision and that denying a motion for rehearing were unanimous and the rule therein has since been the settled law of this state with respect to the nature of an estate created by similar deeds. The same rules of law applied in Riggs were used in the recent case of Spresser v. Langmade, 199 Kan. 96, 427 P. 2d 478.
The critical language used in the identification of the grantees in Riggs — “W. N. Snell and Georgia Elma Snell, his wife, or the survivor of either” is identical with that used in the instant deed — Roy N. Graves and Susanna M. Graves (husband and wife), or the survivor of either. (Emphasis supplied.)
Likewise, the reference to grantees in the granting and habendum clauses of both deeds, as “said parties of the second part, their heirs and assigns,” is the same.
K. S. A. 1969 Supp. 58-2270 reads as follows:
“Any deed of conveyance affecting an interest in real estate which has been recorded in the office of register of deeds in any county of the state of Kansas prior to March 5, 1960, wherein is contained in the introductory or granting clause following the names of two (2) or more grantees, the words, ‘or survivor/ or, ‘or the survivor,’ or, ‘or the survivor of either/ or, ‘or the survivor of either of them/ or, ‘as joint tenants with the right of survivorship/ or, ‘as joint tenants with the right of survivorship and not as tenants in common/ or, ‘of the survivor of them/ is hereby declared to be a grant of an estate in joint tenancy and not tenancy in common, regardless of the fact that elsewhere within such instrument following the designated grantees or reference to such grantees is contained the words, ‘their heirs and assigns’: Provided, That any person desiring to present proof that any such deed conveyed an interest in real estate to such grantees as tenants in common shall have one year after the effective date of this act within which to file proceedings attacking such deed: And provided further, That infancy, incompetency, or nonresidence shall not affect the operation of this act.” (Effective July 1, 1967.)
It is apparent that in enacting 58-2270 the legislature attempted to strike down the effect of the Riggs decision with respect to deeds recorded prior to March 5, 1960, the date of the decision. Undoubtedly, as an attempt to circumvent constitutional infirmity, the legislature added the proviso which afforded a person desiring to present proof of intention to create tenancy in common the right to file proceedings attacking a deed within a year after the effective date of the act.
Before proceeding further it should be pointed out that we are deprived of any judicial choice between prospective, retrospective or retroactive application of the statute because by its express terms application is restricted only to those deeds recorded prior to March 5, 1960. Thus the statute must be deemed purely retroactive in effect.
Appellant says that 58-2270 is a curative statute and even though necessarily retrospective in character, it may be enacted to cure or validate errors or irregularities in legal or administrative pro •ceedings, except such as are jurisdictional or affect substantial rights. (16 Am. Jur. 2d, Constitutional Law, § 430, p. 772.)
Appellant also cites general law treating curative acts directed at real estate deeds as follows:
“It is competent for the legislature to validate imperfect or irregular deeds by enactment of curative statutes provided no vested rights are thereby disturbed. Even though such a statute is retroactive, it is constiutional, provided it does not impair vested rights or interfere with the rights of innocent third persons. Insofar, however as such statutes may impair vested rights they are unconstitutional.” (23 Am. Jur 2d, Deeds, § 141, pp. 187-188.)
The principles of law stated by appellant are universally recognized. However, we are unable to apply them to the statute in this case in the manner sought by appellant.
Decisions of the court dealing with the subject are in harmony with the rules cited by appellant. The nature of curative statutes and constitutional limitations restricting the operation and effect thereof were treated in the case of Beeler & Campbell Supply Co. v. Warren, 151 Kan. 755, 100 P. 2d 700, wherein it was held:
“Curative statutes are necessarily retrospective in character, and may be ■enacted by the legislature to validate any proceeding which it might have authorized in advance or have dispensed with altogether, provided such legislation does not impair vested rights but only confirms rights already existing.” (Syl. | 2.)
In Beeler the rights affected by the statute in question were found to be rights already existing, and the confirmation thereof by curative statute was held to be constitutional. Retroactive divesting of vested private rights by statutory enactment has received different treatment.
Although there is no express constitutional provision against retrospective legislation in this state, the subject is not a new one in the reported decisions of this court.
Retrospective operation of statutes was treated at some length in the case of State, ex rel., v. Public Service Comm., 135 Kan. 491, 11 P. 2d 999, wherein the reparations act of 1929 (Laws of 1929, Chapter 223), as enacted, affected shipping contracts between shippers and common carriers. It was held invalid insofar as its retroactive aspects violated the provision of the federal constitution which forbids the state to pass any law impairing the obligation of contracts. The act was said to have been expressly designed in text and terms to disturb vested rights and to deprive carriers ■of their property without due process of law, and therefore was un constitutional and void. In the text of the opinion Justice Dawson speaking for the court reviewed many of the early Kansas cases dealing with the subject of retrospective legislation. Insofar as pertinent to the instant case the rule was stated to be:
“. . . retrospective legislation which attempts to impair vested rights or deprive a private litigant of a right he had at the time the later statute was enacted cannot be enforced. (Richards v. Comm’rs of Wyandotte Co., 28 Kan. 326, 331; Barrett v. Montgomery County, 109 Kan. 685, 201 Pac. 1098; Serrault v. Price, 125 Kan. 548, 265 Pac. 548; Almquist v. Johnson, 130 Kan. 417, 286 Pac. 217.)” (p. 503.)
The rule stated in State, ex rel., v. Public Service Comm., supra, is recognized in a number of later cases including International Mortgage Trust Co. v. Henry, 139 Kan. 154, 30 P 2d 311; and Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860. See, also, Wyandotte County Comm'rs v. General Securities Corp., 157 Kan. 64, 138 P. 2d 479; and Beeler & Campbell Supply Co. v. Warren, supra.
All of the events relating to the devolution of title to the subject real estate occurred prior to the enactment of the statute in question. The rights of appellees in the subject property became vested on the death of Roy N. Graves on December 7, 1965. (In re Estate of Countryman, 203 Kan. 731, 457 P. 2d 53; Riling, Executor v. Cain, 199 Kan. 259, 428 P. 2d 789; Peterson v. Peterson, 173 Kan. 636, 251 P. 2d 221; and Magaw v. Emick, 167 Kan. 580, 207 P. 2d 488.)
In the case of Cress v. Hamnett, 144 Kan. 128, 58 P. 2d 61, the court was confronted with the application of the forerunner of 58-501, supra, (Laws of 1891, Ch. 203, § 1, R. S. 1923, 22-132), to a deed executed less than a month prior to the effective date of the statute. The subject land was conveyed to George S. Crary, conditioned that if he died without issue the estate passed in fee simple to Martha Crary and Abigail Cress. The court first determined that George S. Crary took a fee simple defeasible, and Martha Crary and Abigail Cress took a joint estate in an executory interest. The holding in the decision was effectively recapitulated in paragraph two of the syllabus:
“The deed became effective April 11, 1891. The statute converting joint tenancies into tenancies in common became effective May 20, 1891. Abigail Cress died in 1933, leaving heirs. George S. Crary died, without issue, in July, 1935. Held, on the death of George S. Crary, Martha Crary took the entire estate, and the heirs of Abigail Cress took nothing.”
In the body of the opinion Chief Justice Burch speaking for the court described the rights of Martha Crary and Abigail Cress as follows:
“. . . The nature of the interest each one would take, if she did take, was fixed by the deed, and the legislature was powerless by subsequent act to deprive either one of any element of the interest created by the deed.” (p. 131.)
Further in the opinion the court noted:
“. . . there is not the slightest indication the statute was intended to be retroactive, and the statute operated to destroy survivorship under instruments, in form creating joint tenancies, executed after the statute was enacted and not otherwise.” (p. 132.)
The 1891 act, unlike the statute before us, did not direct retroactive application and the court, as it was bound to do, avoided constitutional fault by limiting the act to prospective operation.
A similar application of the act of 1891 was given to a preexisting estate in entirety in the case of Holmes v. Holmes, 70 Kan. 892, 79 Pac. 163.
In further support of their position, appellees assert that the enactment of 58-2270, supra, amounts to encroachment of legislative upon judicial power. Appellees’ position in this regard is fully supported by the decision of this court in Wyandotte County Comm'rs v. General Securities Corp., supra, wherein it was held:
“House bill 168 enacted by the 1943 legislature is unconstitutional as an encroachment of judicial powers in that it purports to direct the judiciary in the interpretation of existing statutes.” (Syl. f 5.)
In the opinion the court cites with approval the rule stated in Cooley’s Constitutional Limitations, 8th ed., 183, 184, 191, which we quote in pertinent part:
“ ‘As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. “To declare what the law is, or has been is a judicial power; to declare what the law shall be is legislative. . . (p. 76.)
In an excellent work dealing with the entire subject of retroactive legislation affecting interest in land, the author speaks to the specific problem encountered when a legislature attempts to repeal or amend an existing statute which has abolished the common-law presumption favoring joint tenancies. We quote:
“The Effect of Repeal of a Statute.
“If any of the legislatures should repeal or amend the existing statutes so that the common-law presumption would again operate (an event which is unlikely to occur), the objections on constitutional grounds to the retroactive operation of the repeal or amendatory acts would be much more cogent than the objections to the retroactive operation of the statutes which abolished the presumption. A real and substantial burden would be imposed on the tenants if the common-law presumption were allowed to operate on their estate to make into a joint tenancy what had been a tenancy in common under the statute. The living tenants would have just grounds for complaint if they were compelled to take steps to prevent the operation of the incident of survivor-ship, and the heirs of deceased tenants, whose interests were destroyed by the survivorship, would have even more reason to complain of a deprivation of property without due process.” (Michigan Legal Studies, Retroactive Legislation affecting Interest in land by Scurlock, at page 327.)
Under the deed in question, Roy N. Graves and Susanna M. Graves acquired vested rights in the subject property as tenants in common. On the death of Roy N. Graves appellees succeeded to a vested right in his undivided one-half interest as a tenant in common. The vested rights of appellees cannot be impaired or divested by the assumption of judicial power by the legislature in the enactment of retroactive legislation.
In view of our disposition of this appeal, other points raised by appellant do not require consideration.
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The opinion of the court was delivered by
Kaul, J.:
Plaintiff-appellant, Hutchinson National Bank and Trust Company, hereafter referred to as Bank, instituted this action against defendant-appellee, N. F. English Construction Company, Inc., hereafter referred to as English, to recover on two accounts receivable, which had been assigned to Bank as collateral by its debtor Bybee.
Bybee was a floor covering contractor doing business as Bybee’s Custom Floors. English is a general contractor in the construction business.
On August 30, 1963, Bybee secured a loan from Bank, evidenced by a promissory note in the amount of $2,200.00. As security Bybee executed, on the same date, what was entitled “Assignment of Specific Account(s) Receivable.” By the terms of the document, Bybee assigned to- Bank an account shown to be in the amount of $2,936.00 due from English on the new Metropolitan Life Insurance Building.
On September 13, 1963, Bybee executed a second assignment of an account receivable, in the amount of $2,304.75, which was alleged to represent an account due Bybee from English on a contract with the Atchison Topeka & Santa Fe Railroad Company. The second account was connected with Bybee’s subcontract with English for the installation of flooring in a new railway freight depot. This assignment was made as collateral for a note of Bybee’s due Bank in the amount of $1,618.00.
Both assignments were accepted by English in this language:
“We hereby accept the above assignment on this 3 day of September, 1963. It is hereby agreed that all checks in payment of this account will be made payable jointly to Bybee Custom Floors and ‘Hutchinson National Bank and Trust Company.’
“Debtor /s/ N. F. English Construction Co. Inc. /s/ Jay Ewing, Jr.”
On November 20, 1963, Bybee filed a voluntary petition in bankruptcy in the United States District Court. In due course Bybee was adjudicated a bankrupt.
On his bankruptcy schedule of liabilities, Bybee showed:
“Hutchinson Natl Bank-locally
“Hutch, Kansas
“Note given for adv of moneys on contract for work being done for N. F. English Constr Co., Hutch, Kans — Assignment accepted by English (3 separate transactions)
“14,000.00”
On his schedule of debts due petitioner, Bybee listed the account due from English on the Santa Fe Freight Depot in the amount of $2,304.75 and three other accounts due on subcontracts, which were not assigned to Bank. The Metropolitan Life Insurance Building account was not listed.
On May 13, 1964, Bank filed a proof of claim in Bybee’s bankruptcy proceedings in the total sum of $17,210.00 plus interest. Bank attached to its proof of claim an exhibit in which it set forth the particulars of the assignments of the accounts on the Metropolitan and Santa Fe contracts, and one other subcontract on a South Dakota school facility with which we are not concerned.
As far as we are able to ascertain from the record, Bank took no further steps in the matter until it filed this action in the District Court of Reno County on August 29, 1968.
In the meantime, Bybee was discharged in bankruptcy on October 6, 1965.
In its petition Bank recited the particulars of the Bybee loans, the assignments of the accounts, and attached, as exhibits, copies of the assignments and acceptances thereof by English. Bank prayed for judgment against English in the amount of $5,240.75, representing the total of the two assigned accounts.
English filed an answer to Bank’s petition on September 17, 1968. English admitted the assignments, as alleged by Bank, but alleged that Bank submitted to the jurisdiction of the United States District Court by filing its claim therein; that all matters with respect to the two accounts were fully adjudicated; that by reason of the findings of the United States District Court no amount was or is due Bybee from English; and therefore no amount is due Bank from English. With respect to the Metropolitan account, English further alleged:
“. . . This Defendant further states that such transaction grew out of a subcontract between Wilbur L. Bybee d/b/a Bybee’s Custom Floors and this Defendant in connection with the construction of a building known as the new Metropolitan Life Insurance Building on North Plum Street in Hutchinson, Kansas; that said Bybee failed to perform such subcontract and that this Defendant had the same done by BoureU’s Floor Covering Company of Hutchinson, Kansas, and that by reason of these facts no amount became due said Bybee by this Defendant.”
Apparently, the next event in the course of this litigation was a pretrial conference. The record discloses a memorandum opinion filed by the trial court on July 28, 1969.
In its memorandum the trial court states tibe matter came on for determination whether the accounts receivable were previously adjudicated by the bankruptcy court.
The trial court described the issues and noted the positions of the parties in this manner:
“From the evidence presented it appears that with reference to the two accounts receivable assignments involved in our present case the plaintiff filed proof of claim pertaining to same in the Matter of Wilbur L. Bybee d/b/a Bybee’s Custom Floors, Bankruptcy Case No. 8203-B-2, United States District Court for Kansas sitting as a bankruptcy court, and thereafter received proportionate distribution as other common creditors at the' conclusion of said bankruptcy. In said bankruptcy proceedings certain setoffs were allowed which plaintiff in our present case alleges are in violation of the terms of the accounts receivable assignments, said terms being binding upon the defendant: to this allegation the defendant disagrees and contends such issue along with the issue of whether Bybee failed to perform his subcontract in the Metropolitan matter so that no amount became due under one account receivable assignment, now is res judicata by virtue of the bankruptcy proceedings.”
The trial court then observed that state courts are under an obligation to defer to the bankruptcy jurisdiction of federal courts and must yield to the extent that federal jurisdiction is exclusive.
The trial court then ruled:
“In our present case, it seems to the court the plaintiff, represented by council, submitted the assignment claims to the bankruptcy court and thus the matters litigated therein, or which could have been litigated therein, are res judicata, and this court should take no further action herein.
“Accordingly, this case is dismissed without prejudice and costs are assessed against fire plaintiff.”
Following this ruling, Bank filed a motion for a new trial claiming in substance: (1) The matter was not properly before the court for summary judgment; (2) whether the Metropolitan account was collectible from Bybee was a question of fact; (3) there was no showing that the setoff to English involved any of the accounts claimed by Bank; and (4) the bankruptcy court did not have jurisdiction of the controversy between Bank and English.
The trial court filed a second memorandum opinion overruling Bank’s motion for a new trial. The court noted that arguments were made by counsel and that the prior files and records in this case and in the bankruptcy case in the United States District Court were made a part of the memorandum opinion by reference.
Bank then perfected this appeal, raising substantially the same questions presented in its motion for a new trial.
We shall first consider the propriety of tire trial court’s dismissal of the action in a pretrial proceeding. Bank claims the trial court erred procedurally by dismissing its actions since no motion re questing dismissal had been filed. In its ruling on Bank’s motion for a new trial, the trial court disposed of this contention:
“In answer to the plaintiff’s contention this matter was not strictly presented in the form of a motion for summary judgment and thus this court had no authority to make its decision on July 28, 1969. Counsel’s attention is invited to the fact at a pretrial conference under KSA 60-213 this matter was raised, briefs and documentary evidence were submitted to the court, and thereafter said court made its decision. . . .”
The trial court’s disposition of the contention is squarely in line with this court’s holdings in Collins v. Meeker, 198 Kan. 390, 424 P. 2d 488; and Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019.
In Green it was held:
“A trial court has inherent power to summarily dispose of litigation on its own motion where there remains no genuine issue as to any material fact, and giving the benefit of all reasonable inferences that may be drawn from the evidence judgment must be for one of the parties as a matter of law.” (Syl. ¶ 1.)
While we have none of the transcript of the pretrial conference in the record before us, the trial court makes it clear in its memorandum that the issues were argued and briefed by counsel and submitted with documentary evidence. The record discloses no objection by Bank to this procedure until after the trial court’s decision was announced.
The substantial issue on appeal is whether the trial court’s ruling was correct as a matter of law.
Was there a question of fact concerning the collectibility of the assigned account in connection with the Metropolitan contract? English alleged that Bybee failed to perform the Metropolitan subcontract; that another floor covering company was engaged in Bybee’s stead, and thus no amount became due Bybee. The trial court noted that Bank states:
“. . . it has no evidence to refute that portion of the defendant’s answer stating Bybee did not perform the work which pertains to one accounts receivable involved in this case.”
Bank makes no claim now that it has evidence to refute the allegation of English. Bank merely argues that since Bybee warranted in his assignment the account was valid, existing and collectible, English cannot deny liability thereon. The trouble is that English was not a party to such warranty. In its acceptance of the assignment, English merely agreed to make all checks in payment of the account, payable jointly to Bybee and Bank. Since it is undisputed that Bybee did not perform on the Metropolitan subcontract nothing became due and no checks were written by English. The terms of the acceptance by English fell far short of an outright agreement between a general contractor and a bank, which created a new and direct legal right in the Bank, such as existed in Nello L. Teer Company v. Kanawha Valley Bank (4th Cir. 1955), 227 F. 2d 306, cited by Bank.
Since nothing was due him, Bybee did not list the Metropolitan account in his bankruptcy schedules, thus Bybee’s bankruptcy had nothing to do with the Metropolitan account. Inasmuch as Bybee never performed, the Metropolitan account never came into being as to English under the terms of his acceptance. There is nothing due Bank from English by reason of the assignment.
However, with respect to the Santa Fe account, the Bank’s rights against English, under Bybee’s assignment, depends upon the effect of the bankruptcy proceedings.
Bank strenously argues the bankruptcy court had no jurisdiction over the Santa Fe account and, even if so, it had no summary jurisdiction to adjudicate the rights of Bank in a proceeding allowing the trustee to setoff the Santa Fe and other accounts against the claim filed by English.
By filing its proof of claim against Bybee, Bank submitted the validity and amount of its claim to the jurisdiction of the bankruptcy court. (2 Collier on Bankruptcy [14th Ed.], §23.08 [6], p. 550; 9 Am. Jur. 2d, Bankruptcy, § 53, p. 95.) Whether the bankruptcy court acquired summary jurisdiction to adjudicate Bank’s rights in the Santa Fe account, in a proceeding to allow setoffs, is another question.
As previously noted, Bank attached an exhibit to its proof of claim setting out all of the particulars concerning Bybee’s assignment of the Santa Fe account and the acceptance by English. Bybee listed the Santa Fe account together with other accounts due from English, totaling $5,028.54, as assets. Apparently, Bybee was indebted to English for more than $5,028.54. English filed a proof of claim in excess of the $5,028.54. The amount of English’s claim is not shown but the statement that it was in excess of $5,028.54 is not challenged.
The setoff of mutual debts or credits between the estate of a bankrupt and a creditor is directed by 11 U. S. C. A. § 108 which reads:
“a. In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.” (p. 535.)
On September 23, 1965, the trustee filed a motion in the bankruptcy court to permit setoffs and reduce claims filed by various creditors of the bankrupt for the reason that many of the claimants were indebted to the bankrupt estate and that a setoff should be allowed the bankrupt estate in the amounts owed by the claimants. English was one of the claimants named in the motion and his indebtedness to the bankrupt estate was shown to be $5,028.54. A hearing on the motion to allow setoffs was set for October 8, 1965, and a notice, which included a copy of the motion, was mailed to all creditors and their attorneys of record.
The motion for setoffs was allowed on October 6, 1965. Bank did not appear.
On November 8, 1965, a final meeting of creditors was held. The only appearances shown are those of the trustee and the attorney for Bybee. A distribution to creditors was made which shows $701.15 paid to Bank and $287.81 paid to English.
Bank now says the $701.15 was duly credited against its claim against Bybee and English in another suit, which is not a part of the instant action. The Santa Fe account was a portion of the sum setoff against the claim of English, thus reducing its distributive share, and — to that extent at least — if Bank were to prevail here the effect would be to hold English accountable twice for the same account. The setoff proceeding certainly amounted to an exercise of jurisdiction by the bankruptcy court over the Santa Fe account.
Even though it filed its proof of claim with assignments attached, Bank earnestly argues the bankruptcy court did not acquire summary jurisdiction to absolve the Santa Fe account in the setoff proceedings.
Bank directs our attention to this language found in 2 Collier on Bankruptcy [14th Ed.], § 23.05 [4]:
“. . . But where there has been an outright and complete assignment of the chose in action to a third party prior to bankruptcy, as distinguished from a mere encumbrance of it, a summary proceeding will not lie, and a plenary suit is the proper remedy. . . .” (pp. 487-488.)
However, the issue here is not whether the bankruptcy court could or would have exercised summary jurisdiction over the timely objection of Bank. The question is whether Bank’s failure to object in any manner at anytime in the course of the proceedings constituted consent to summary jurisdiction.
We find the applicable general rule stated in a subsequent section of 2 Collier on Bankruptcy [14th Ed.], § 23.08 [1]:
“It is well settled that in all cases where a party is entitled to the determination of his rights in a plenary action, he may nevertheless consent to the exercise of summary jurisdiction by the bankruptcy court and in that manner have his rights adjudicated. . . .” (p. 530.)
In all likelihood if Bank had expressly reserved its right to proceed against its security in a plenary action or suit in another court, when filing its claim or if it had objected to the exercise of summary jurisdiction in the setoff proceeding, it might well have obtained the plenary adjudication it now seeks. The cases uniformly have not found consent where reservations were stated in the claim filed. (Glens Falls Insurance Co. v. Strom [S. D. Cal. S. D. 1961], 198 F. Supp. 450; Pickens v. Roy, 187 U. S. 177, 47 L. Ed. 128, 23 S. Ct. 78.)
However, the right to a plenary suit is a procedural right which may, of course, be waived. (O’Dell v. United States [10th Cir. 1964], 326 F. 2d 451; Reconstruction Finance Corp. v. Riverview State Bank, [10th Cir. 1955], 217 F. 2d 455.) Thus, one who invokes the jurisdiction of the bankruptcy court by filing a claim with that court or who fails to object to the summary jurisdiction of the court at the earliest opportunity, thereby consents to jurisdiction. (O’Dell v. United States, supra; Commercial Discount Company v. Rutledge [10th Cir. 1961], 297 F. 2d 370.)
It is true the controversy over the Santa Fe account is between third parties. The question, however, whether Bank by reason of its assignment was entitled to the account, thus barring setoff of the account against the claim of English, directly involved the bankrupt and his property.
We hold that since Bank invoked the jurisdiction of the bankruptcy corut, by filing its claim and then failed to object to the exercise of summary jurisdiction by the court, in allowing the setoff, Bank thereby consented to such jurisdiction.
Bank complains the notice received of the trustee’s setoff motion was not sufficiently specific so as to apprise it of the English setoff, and thus the adjudication of the bankruptcy court is open to collateral attack in this action.
Bank does not dispute the fact that a two weeks’ notice of the hearing on the trustee’s motion to permit setoffs was received and that a copy of the motion showing a proposed setoff to English was attached.
A bankruptcy court has jurisdiction to determine in the first instance whether a summary proceeding can be maintained. If it errs in so proceeding, the remedy is by way of appeal. (Schweer v. Brown, 195 U. S. 171, 49 L. Ed. 144, 25 S. Ct. 15.)
Where a bankruptcy court has determined its jurisdiction, the exercise thereof cannot be collaterally attacked in a state court action commenced three years after termination of the bankruptcy proceeding. The general rule is stated in 9 Am. Jur. 2d § 81.
“In the absence of fraud, the bankruptcy court’s determination of an actual controversy involving its jurisdiction of the subject is res judicata and not subject to collateral attack by persons who participated therein. . . .” (p. 123.)
While there is no showing here of an actual controversy in bankruptcy court concerning its jurisdiction, the record does show that Bank in the first instance submitted to bankruptcy jurisdiction by filing its claim with assignments attached. The bankruptcy court assumed jurisdiction and proceeded to administer the affairs of the bankrupt estate without objection by Bank. The issue concerning the setoff of the Santa Fe account against the claim of English directly affected the bankrupt and his property. The question was properly before the bankruptcy court and the determination thereof cannot be challenged at this late date in a state court proceeding.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This suit was commenced in the district court of Pottawatomie county, December 8, 1905, by Ed Vander Meerschen against A. J. Beakey, to recover judgment upon a promissory note and to foreclose a mortgage given to secure the same. The defendant filed an answer, consisting of a general denial, unverified, and a cross-petition founded upon an account for services rendered, and judgment was demanded thereon in the sum of $3302.21. To this answer and cross-petition the plaintiff in his reply admitted the employment of the defendant, set up a counter-claim for money received by him during such employment which had not been accounted for, and prayed judgment for the balance due, amounting to the sum of $5281.14.
When the case was called for trial the defendant made application for a continuance, which was denied. Thereupon he dismissed his cross-petition. The plaintiff then demanded a trial upon the counter-claim in his reply, which the court allowed, and the trial proceeded. The defendant’s application for a continuance was based upon his inability to be present on account of neuralgia in the face, and he did not appear. The plaintiff recovered judgment on the note and a decree of foreclosure by default, and upon the trial recovered $3845.27 on his counter-claim. The defendant insists that the judgment entered upon the counter-claim is erroneous. We concur in this claim. The statute which prescribes what a reply may contain expressly limits the statement of new matter to that which constitutes a defense to the answer. The section reads:
“When the answer contains new matter, the plaintiff may reply to such new matter, denying generally or specifically each allegation controverted by him; and he may allege, in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition constituting a defense to such new matter in the answer.” (Civ. Code, § 102.)
The statute prescribing the contents of an answer, being section 94 of the code, has no such limitation, but expressly permits the statement of any defense, counter-claim, set-off, or right to relief. It is obvious that the right to set up new causes of action or defense must end at some point, or pleadings and issues might become interminable and confusing. The statute having-placed this point at the reply, parties may insist upon a compliance therewith.
The cause of action contained in the petitiob, being-one to recover judgment upon a promissory note and to-foreclose a mortgage, and the cause of action in the; reply, being one for money had and received, are wholly disconnected and foreign to each other, and the prosecution of them in the same action in this manner is, to-say the least, unusual in code pleading. Whether they might have been properly united in the petition is immaterial, as the contents of a petition are regulated by a statute entirely different from that which prescribes, the contents of the reply. In this case the defendant, was unprepared for trial upon the set-off contained in his answer, and failing to obtain a continuance was compelled to dismiss this part of his answer. He was. then forced to meet the counter-claim of the plaintiff, which involved practically the merits of the set-off, which had been dismissed. Under the statute quoted, such a condition is avoided by confining the plaintiff' in his reply to new matter which constitutes a defense-to the answer; and a dismissal of the answer carries, with it the new matter in the reply.
The rule that a cross-petition should be regarded, so-far as the parties are concerned, the same as if- the-cross-petitioner were a plaintiff and the plaintiff a defendant, to the extent that a dismissal of the petition, does not affect the cross-petition, but leaves the issues, made by it and the reply thereto to be litigated the same-as between a petition and answer, does not apply here, for the reason that the statute authorizes the rule in the former case, and impliedly prohibits it in the latter.
In volume 19 of the Encyclopaedia of Pleading and’ Practice, at page 794, it is said:
“In some jurisdictions it is held that the plaintiff: may set up in reply a counter-claim or set-off against" the defendant’s • claim. But such .set-off or counter claim can be used only to defeat a recovery by- the defendant, and can not be made the subject of a substantive claim upon which a judgment for the excess over the' defendant’s demand can be based.
“The more generally accepted doctrine is that a reply to a set-off or counter-claim is restricted to the averment of new matter constituting a defense which is not inconsistent with the complaint or declaration, and therefore a set-off or counter-claim can not be set up against the defendant’s claim.”
Because of the error noted, the judgment of the district court will be modified. The judgment upon the cause of action stated in the petition is affirmed; the judgment entered upon the cause of action stated in the reply is reversed and vacated. The costs are equally divided between the parties. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued the defendant before a justice of the peace of Franklin county to recover upon a promissory note. The principal question was whether a former proceeding tolled the statute of limitations. Judgment was rendered for the plaintiff, and the defendant appealed. In the district court the following findings of fact and conclusions of law were returned:
“FINDINGS OF FACT.
“(1) On January 2, 1899, N. D. Parker, Frank B. Parker and Mary L. Parker executed the note in suit. N. D. Parker was the principal, and Frank B. Parker and Mary L. Parker were sureties. This fact was known to the plaintiff. The payment of interest July 2, 1899, as also the payment of $2 August 2, 1899, was made by N. D. Parker, the principal, while the payment of March 10, 1900, of $80, was made by Frank B. Parker, the defendant in this action, in the manner following: Shortly before March 10, 1900, as also on that day and since, Frank B. Parker was engaged in the life-insurance business. His brother, N. D. Parker, the principal on this note, informed him that he believed that A. Dobson, the plaintiff, would take a policy in his company, if he, Frank B., would permit Dobson to retain and credit upon his note his (Frank B.’s) commission. Whereupon Frank B. Parker solicited Mr. Dobson to accept a policy of life-insurance, and it was agreed, that $80, being the commission of Frank B. Parker as agent of the company, should be retained by Mr. Dobson and credited on this note, which was accordingly done. . '
“(2) On March 1, 1905, the plaintiff, A. Dobson, caused to be filed in the office of the clerk of the district court of this county his petition, wherein he was -plaintiff, and Frank B. Parker, Mary L. Parker and N. D. Parker were the defendants, by which petition the plaintiff, A. Dobson, sought to recover judgment against the said three defendants upon the note in suit in the sum of $282.66, with interest. He caused a summons to be issued to the sheriff of Franklin county, Kansas, bearing date March 1, 1905,* against Mary L. Parker, which summons was duly served upon her on March 2, 1905. At the same time he caused a summons to be issued by the clerk of the district court of this county tc the sheriff of Shawnee county, Kansas, for Frank B. Parker, the defendant in this action, Shawnee county being then the residence of Frank B. Parker, which summons bore date of March 1, 1905, and was duly served upon Frank B. Parker in Shawnee county on March 3, 1905. The record does not disclose that any summons was issued for or served upon N. D. Parker.
“(3) At the time of the commencement of said action, being cause Np. 7213 of the records of this court, Mr. Dobson knew that Mary L. Parker had made no payment on this note. He, however, believed in good faith that the payments made by N. D. and Frank B. Parker had the effect of tolling the statute of limitations, not only as to them but as to the defendant Mary ' L. Parker as well, and in that belief commenced said action No. 7213, and caused the defendant Mary L. Parker to be served in Franklin county and Frank B. Parker to be served in Shawnee county. After the commencement of said action the attorney of Mary L. Parker and Frank B. Parker called upon Mr. Dobson, in person, and advised him that the note sued on was barred by the statute of limitations, as against Mary L. Parker, as she had made no payment thereon, and that the payments made by Frank B. and N. D. Parker did not toll the statute of limitations as against Mary L. Whereupon, and on or about the 29th day of March, 1905, a stipulation was entered into between the plaintiff and Mary L. Parker that at the next term of the district court of Franklin county the cause should be dismissed, as against Mary L. Parker, which was accordingly done on April 3, 1905. On the same day Frank B. Parker, the defendant in that action and the defendant in this action, filed his motion in said cause to set aside the summons served upon him in Shawnee county, for the reason that he was a resident of Shawnee county, and that as no relief was now asked against his codefendant, Mary L. Parker, who was served in Franklin county, the cause should not be prosecuted against him, which motion was by the court sustained on the 3d day of April, 1905, and the action ordered dismissed as against Frank B. Parker, and the costs taxed against the plaintiff.
“ (4) On June 5, 1905, this action was commenced by the plaintiff, A. Dobson, against the defendant, Frank B. Parker, in the court of a justice of the peace of this city, and Frank B. Parker was served with summons on that day in this county. A trial was' had, and from the judgment rendered an appeal was taken to this court. The present action, being cause No. 7259, is upon the same note, and is the same cause of action upon which the former suit, cause No. 7213, was commenced by the plaintiff, A. Dobson, against Frank B. Parker and others on March 1,1905.”
“CONCLUSIONS OP LAW.
“(1) The proceedings had in cause No.. 7213 of the records of this court' were the commencement of an action, and a failure other than on the merits within the meaning of section 23 of the code, even though Mary L. Parker was neither a necessary nor a proper party defendant, the plaintiff having acted in good faith. Mary L. Parker was justly indebted to Mr.- Dobson when that action was begun, even though she had a defense. The plea of the-statute of limitations is a personal one, of which she might or might not avail herself. Had no defense been made, the judgment against both would have been binding.
. “(2) The present action, having been commenced within one.year after the dismissal of cause No. 7213, is not barred by any statute of limitations, and the plaintiff ought to recover the sum of $303.26.”
Judgment was entered pursuant to the conclusions of law, and the defendant prosecutes error. The substantial question is whether the proceedings in the first action disclose the commencement of an action and a failure of the plaintiff to recover otherwise than upon the merits. Sections 20 and 23 of the civil code read as follow:
“An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.”
“If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”
The district court has found that the plaintiff sued Mary L. Parker believing in good faith that he had an enforceable claim against her. She was not a nominal party, joined merely for the purpose of obtaining service upon the defendant. No fraud upon the jurisdiction of the court was intended or committed, and .no wrong was done the defendant because of the manner in which the proceeding was instituted.
There .is no finding that the bill of particulars dis closed the fact that action against Mary L. Parker was barred, but the propriety of the proceeding would not be affected if it had done so. The fact that a right of action has become barred by lapse of time is a defense which must be actively urged in some proper way or it will be waived. The obligation of Mary L. Parker .to pay the note remained, and still remains. The defense was. personal to her. The defendant could not interpose it for her, and unless she chose to appear and claim the benefit of the statute judgment could rightfully be rendered against her.
A summons was issued against Mary L. Parker on March 1, and served upon her on March 2. On that date an action was commenced against the defendant, who was served the following day. If the case had taken the ordinary course — Mary L. Parker filing and establishing an answer setting up the statute of limitations and obtaining judgment on that ground — there would have been a judgment upon the merits. Yielding, however, to the persuasion of the defendant’s attorney the plaintiff dismissed Mary L. Parker from the action. The foundation for the joinder of the defendant being thus removed, the service upon him was quashed and the entire proceeding was dismissed, so that the merits of the casé were never reached. Therefore the plaintiff failed otherwise than upon the merits.
This case is distinguished by the fact that originally it was properly brought. The service upon both Mary L. Parker and the defendant was valid in all respects when made. It became insufficient to sustain further proceedings against the defendant only because of the plaintiff’s conduct after the action had been commenced. That conduct did not change the fact that the action had been duly and legally commenced. It merely brought into existence a new factor in the relations of the parties, which authorized the court to abate proceedings which were perfectly unimpeachable until the new factor appeared.
The defendant argues that because Mary L. Parker was dismissed from the action it should be presumed she was not a real party at the beginning and was joined merely for the purpose of obtaining service upon the defendant in Shawnee county, citing Brenner v. Egly, 23 Kan. 123. This presumption can not be indulged against the proved facts upon which the court’s finding to the contrary rests.
It is said that when the court set aside the service upon the defendant it must have found that a fraud upon its jurisdiction had been attempted. Manifestly it was not essential that the court so find to warrant a dismissal as to the defendant; no facts existed authorizing such a finding, and as a matter of fact the court did not so find. The journal entry is printed in the counter-abstract, and it merely shows that the summons and the return were held to be irregular.
The case of Smith v. Comm’rs of Bourbon Co., 43 Kan. 619, 620, 23 Pac. 642, is cited. The syllabus reads:
“Where a plaintiff has no right or cause of action against a defendant, and no claim, title or interest in the subject-matter stated in his petition, and brings his action in a court that has no jurisdiction of the defendant, and when he is in all respects a stranger to the defendant, the pendency of such an action will not entitle him to the saving provisions of section 23 of the civil code, although after the dismissal of his action he obtains such an interest in the subject-matter of the prior action as would entitle him to maintain an action thereon but for the statute of limitations.”
The purpose of the legislature is to preserve to the plaintiff the right to pursue in a second suit a cause of action which he has once undertaken to enforce but which has been left undetermined by the first proceeding. Smith’s second suit was the first one to involve the cause of action upon which it was based.
The case of Insurance Co. v. Stoffels, 48 Kan. 205, 29 Pac. 479, is referred to. An effort was made to collect an. insurance policy which limited the time within which an action could be brought upon it. A petition and precipe were filed and a summons was issued and served. Afterward the summons and service were set aside, without objection or exception, so that nothing remained toward the commencement of an action except the petition and precipe. After the period limited for bringing suit had expired a new summons was issued,' and of course the court held the action was commenced too late.
The case now under consideration is different in that prior to the time Mary U. Parker was dismissed the summons and service upon the defendant could not have been set aside. Since the process was not irregular or defective in any respect when it was issued, and since it was regularly served, the defendant was in fact rightfully brought into court; and the action which thus had been properly commenced early in March remained duly pending until April 3, 1905. Nothing which happened after valid service had actually been made could render that service non-existent. The fact had occurred and the legal consequences had attached. It makes no difference that the court treated the dismissal of the local party as a theoretical vitiation of the service upon the defendant. The result was not to obliterate historical facts but to start a new train of events; not to render uncommenced an action which had been commenced but to afford ground for terminating, otherwise than upon the merits, an action which had been commenced. This.being the true analysis of the situation, it is not necessary to pursue the argument or to investigate the authorities further.
The bill of particulars was sufficient as a pleading before a justice of the peace. The defendant suffered no substantial injury from any of the rulings upon the admission of evidence, and the findings of fact are not erroneous in the particulars pointed out.
The district court rendered judgment for $303.26. Its jurisdiction on appeal was subject to the same lim itation as that of the justice of the peace before whom the action originated. The statute reads:
“When the balance claimed to be due on any open or unsettled account, or on any bill, note or bond, shall not exceed three hundred dollars, the party by whom such balance shall be claimed may commence his action therefor before a justice of the peace, who shall have power and he is hereby authorized to hear and determine the matters in controversy without regard to the amount of the original account or contract, and he may render judgment for any balance found due, not exceeding three hundred dollars.” (Justices’ Civ. Code, § 3.)
The amount claimed was within the jurisdiction of the justice when the action was commenced. This fact gave the court jurisdiction to adjudicate the controversy even although the accumulation of interest while the action was pending increased the amount due the plaintiff to more than $300. But the judgment for any balance found to be due could not exceed $300. In some states accruing interest is treated as a mere incident of the cause of action and has no more effect upon jurisdiction than costs. But the carefully considered language of the statute quoted forbids that it be so interpreted.
The cause is remanded, with direction to the district court to modify its judgment by reducing the amount to $300 and costs. The costs in this court will be'taxed to the plaintiff in error. | [
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The opinion of the court was delivered by
Smith, J.:
This original action is brought on the relation of the county attorney of Wyandotte county, to test the validity of certain appointments to city offices of Kansas City, Kan., by the mayor of such city, to have several defendants removed from such offices, and to procure an adjudication that other persons, veteran soldiers, are respectively entitled thereto. The action as to each defendant is several in its nature, but by agreement of the parties and the consent of the court the issues will be determined in this proceeding, although the evidence relating to each appointee and claimant will require separate consideration. The action has been dismissed as to the defendant Larkin Norman, and, by his death, has been abated as to defendant Alex. Eagle.
Dudley E. Cornell is, and has been during all the time involved in the issues, the mayor of Kansas City. About April 9, 1907, the offices of city physician, sanitary sergeant and city engineer became vacant, and it was the duty of the mayor, by and with the consent of the council, to fill such positions by appointment, which he did. It is admitted that the claimants for such offices had served in the army of the United States in the war of the rebellion and had been honorably, discharged therefrom, and it is not contended that any of the defendant appointees was such a veteran. It is correctly asserted by the plaintiffs that by the provisions of chapter 374 of the Laws of 1907 the appointment of each of the defendants was illegal, provided one of the claimants applied for the position before the appointment was made, and was a man of good reputation and competent to perform the- duties of such'position.
The act of 1907 has been interpreted by this court in an opinion written by one of its veteran members, Mr. Justice Graves, upon a former hearing of this case. (The State v. Addison, 76 Kan. 699, 92 Pac. 581.) That decision is the law of the case, but it remains for the court to determine issues of fact presented by the pleadings and evidence. The validity of the law is established by the former decision, and it should be so administered as to secure the intended benefits to this honored class of citizens, to whom the nation and the state owe so much. On the other hand, efficient service to the state and to the counties, cities and towns thereof must not be sacrificed. The language of the act itself suggests both of these considerations, and even those for whose benefit the law was intended would insist as strenuously upon the latter as upon the former. In the former opinion in this case Mr. Justice Graves used this language:
“The meaning of the word 'competent,’ as-used in this statute, is not very clear: To ascertain the signification intended reference may be made to the subject-matter about which it is used. ‘Competent,’ when used to indicate the qualifications which a public officer should possess, must necessarily include every qualification essential to the prompt, efficient and honest per formance of the duties pertaining to the office to be filled. A law which means less than this can not stand. The maintenance of an efficient public service in all the departments of the government is a matter of paramount importance. Desirable as it may be to confer special public favors upon the rapidly disappearing patriots of this state, it can not be done at a sacrifice of the public welfare.
“Many old veterans remain who are abundantly qualified to meet all the requirements which the best public service may demand, and to such the provisions of the veterans’ preference law were intended to apply. The determination of the appointing board or officer as to the qualifications of the applicant involves official discretion, and, when''made fairly and in good faith, is final.” (The State v. Addison, 76 Kan. 699, 707, 92 Pac. 584.)
It was also said in the same case:
“The conditions named in the statute which compel the recognition and appointment of a veteran are: (1) A vacant office; (2) an application by a veteran for appointment to such office who (3) served in the army or navy of the United States in the war of the rebellion and was honorably discharged therefrom, (4)- is competent to perform the duties of such office, and (5) sustains a good reputation.
“When these conditions exist it is the duty of the appointing power to appoint the applicant.” (Page 705.)
If the veteran claimants were entitled to the offices sought the appointment of the defendants was illegal; otherwise the defendants should not be ousted. We shall, then, proceed to consider the evidence as it relates to each of the three appointments in question.
The evidence shows that Mayor Cornell was himself a soldier of the United States in the war of the rebellion and was honorably discharged from such service and has since been a member of the Grand Army of the Republic. It may therefore be presumed that he did not determine his appointments, generally, with any adverse prejudice against veteran applicants.
C. L. McClung, an honorably discharged veteran-. duly applied for the office of city engineer, and the mayor refused the appointment and appointed defendant McAlpine to that position. Kansas City is the largest city in the state of Kansas, and the evidence shows that the site of the city is quite hilly and is cut by numerous deep ravines, and that the engineering qf the present and prospective improvements in the city involves the planning and building of bridges and the planning and constructing of difficult systems of sewers. Mr. McClung had served as assistant engineer and had done some work in railroad engineering, both of which occupations involved little more than the work of an ordinary surveyor. In regard to his qualifications he testified that he was “not a graduate of any school, only theory and practice . . . ; never built nor planned bridges; have planned and helped work at pontoon bridges; never planned a system of sewers; nothing but street grades . . . ; have done all kinds of work as an engineer except bridge work; city engineer is required to do bridge work, viaduct work and construction.” Section 84 of chapter 122 of the Laws of 1903 prescribes certain duties of the engineer:
“He shall prepare plans, specifications and estimates for and superintend the construction of all public improvements, do all surveying and engineering ordered by the mayor and council, and perform all other duties pertaining to his office.”
The applicant is not, by his own estimate, thoroughly competent to perform the duties imposed by the statute. Other engineers specified particularly the amount and character of work which the city engineer is required to supervise, and, among other statements, it was said that since April, 1907, one hundred and fifty contracts had been let for public works in the city, at a cost of nearly a quarter of a million dollars. Mayor Cornell testified as follows:
“I made an investigation in good faith for the purpose of ascertaining his qualifications for the position of city engineer, and determined in good faith as to his competency and fitness for such office; from the investigation I made, I did not consider him competent for the position of city engineer.”
It appears that the mayor did tender Mr. McClung a position as assistant engineer, which the latter refused. We think the evidence shows that the mayor acted in good faith and after a fair investigation. This, under the rule laid down in the former decision, ends the controversy as to this appointment.
Dr. W. F. Waite duly applied to the mayor for appointment as city physician. He is shown to have been a graduate in medicine and surgery in 1893 from the University Medical College of Kansas City, Mo., and to have been continuously in the practice of his profession since that time, and is shown to have had a good reputation. It appears that he had theretofore occupied the position of city physician in Kansas City, but in his testimony he says that his duties as such were confined almost entirely to looking after smallpox cases. The evidence relating to the qualifications of Doctor Waite, including the testimony of several doctors, seems to be generally favorable to him, except that it does not appear that he was an 'expert bacteriologist or especially expert in chemical analysis. Mayor Cornell testified in regard to the qualifications of Doctor Waite that he made an investigation as to the applicant’s qualifications in good faith, and that in considering the appointment of a city physician he had in-mind the duties that would probably devolve upon the city physician in view of the pure-food law that had been enacted; that he thought the city physician ought to be well posted in bacteriology as well as pathology, and from what he learned of the doctor he did not think he was well up in those things; that at the time the appointment was made a pure-food ordinance was under consideration and was shortly afterward passed. It appears to us from the evidence that Doctor Waite was fairly well qualified for the position, except as to the specialties mentioned. Wonderful advancement has been made recently in these specialties, and, through them, in warding off and stamping out contagious diseases and in guarding against other diseases the seed of which is conveyed through impure or contaminated water, milk, drugs and food. The great city, which is adjacent to, and really a part of, a greater city, with people, resident and passing through its gates, of every nationality, of every degree of opulence, refinement, squalor and debasement, should demand here the last attainment of medical science. The city physician should not only attend the indigent sick but should be competent to guard the cleanly from the diseased and squalid and the squalid from the manner of living that makes them so, and to guard all from the contamination and adulteration to which avaricious commerce subjects the ailments of the body and even the drugs which should heal its ailments. “Competent,” always a comparative term, should, as applied to qualifications for this office, be construed in the sense of fully capable of adequately rendering all the services which the welfare of such a city demands. There is no suggestion that the mayor did not act in good faith, although he measured competency by higher standards than had, perhaps, theretofore obtained. His decision in regard thereto is final. The appointment, therefore, of Doctor Eager was not illegal.
As to the claims of F. T. Albertson for the position of sanitary sergeant, to which the mayor appointed defendant Addison, there is a conflict of testimony as to whether Albertson ever applied for the position. Albertson himself testifies that he applied for the position of humane officer but at the suggestion of the mayor he changed the application to that for sanitary sergeant. The mayor testifies that Albertson applied for the position of humane officer and that he did not remember that Albertson made any application for the position of sanitary sergeant. The mayor also testified that he had made no appointment to the position of humane officer but had decided to devolve the duties of that office upon a deputy sanitary sergeant, and had offered Albertson that position but that Albertson declined to accept it. Other evidence seems to j ustify the inference that there was a misunderstanding between the mayor and Albertson as to whether Albert-son made application for the position of sanitary sergeant. We can not therefore say that the appointment of George K. Addison to the position was illegal.
Judgment is rendered for the defendants. | [
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Per Curiam:
The court rightly held the tax deed void on its face. The interest of the county was assigned for thirty-seven cents less than the amount necessary to redeem. The statute authorizes an assignment for the amount necessary to redeem, and limits the authority of the officers. They had no authority to assign for a less sum. (Noble v. Cain, 22 Kan. 493; Douglass v. Lowell, 60 Kan. 239, 56 Pac. 13; Manker v. Peck, 71 Kan. 865, 81 Pac. 171.)
There was no error in refusing to permit the county treasurer to explain that he made an error in computation. If such evidence were admissible for any pur pose, which is doubtful, it would only emphasize the fact that the assignment was made for a sum less than the law authorized.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
R. N. Molyneux brought injunction to test whether what was claimed by the township trustee to be a public highway was such in fact. The district court held against him, and he prosecutes error.
Proceedings were had by the board of county commissioners which resulted in the establishment of the road, unless that result was prevented by some of the considerations now to be stated. They were taken while the land affected belonged to. the federal government. The plaintiff’s grantors derived title through settlements made after the laying out of the road. He contends that the local officers can not create a highway across land owned by the United States. This contention ignores the effect of the federal statute of 1866 which reads:
“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” (U. S. Rev. Stat. 1878, § 2477.)
In Tholl v. Koles, 65 Kan. 802, 70 Pac. 881, it was held that an act of the legislature declaring certain section-lines across government lands to be public highways operated as an acceptance of this congressional grant and cut off the right of any one subsequently acquiring title to object to the opening of the road or to claim compensation therefor. (See, also, cases cited in 6 Fed. Stat. Ann., pp. 498, 499.) The principle is precisely the same where the action is taken by the county authorities having jurisdiction to establish highways. Several of the cases cited in Tholl v. Koles, su-pra, were of that character. In Smith v. Smith, 34 Kan. 293, 8 Pac. 385, it was said that a public road can not be established by prescription or limitation, or through dedication by the occupant, while the land over which the road runs belongs to the United States. There, however, no claim was made under the federal statute, and it was not called to the attention of the court. It would seem that the public might directly accept the offer of congress by general and long-continued use, and some of the decisions collected in the work referred to are to that effect; but whether so or not, it is clear that an effectual acceptance may.be made by the officers to whom the matter of establishing highways has been committed by the legislature.
The statute (Gen. Stat. 1901, § 6018) requires that the county clerk shall give notice of the meeting of the viewers by publication in a newspaper and by advertisement set up in his office and in every municipal township through which the road is designed to be laid out, and that the commissioners shall “cause a record of such notice to be entered on their journal.” The plaintiff claims that there was a failure to post the notice in one of the two townships through which the road runs, and a failure to cause a record of it to be entered in the commissioner’s journal. No affidavit or other proof of the advertisement was filed or otherwise made of record in the clerk’s office. But it was decided in Crawford v. Comm’rs of Elk Co., 32 Kan. 555, 4 Pac. 1011, that this is not necessary. The opinion in that case states that a record of the notice was entered on the journal, without further indicating the character of the entry. An examination of the case-made therein discloses that a copy of the notice was spread upon the commissioner’s journal, with no words of introduction or explanation, and with no reference to the manner of giving it publicity. Therefore it is settled that the requirement that a record of the notice shall be entered on the journal is met if the contents of the notice, are written there. That was done in this case, and it follows that the objection based on this part of the statute fails.
The only evidence introduced bearing upon the question of how the notice was published was an entry on the clerk’s record reading thus: “Notice sent to Republican Herald January 15,1886. Published in Herald January 23, 1886, and January 30, 1886. Posted similar notice in clerk’s office and in P. O. at Ashland, January 25, 1886.” If this were a record required to be made it would doubtless be presumed to be complete and to cover all that was done in that connection. The inference would follow from the mention of a posting in one place that the notice was not posted in any other. But since the law requires no proof of publication to be recorded by the clerk the entry was a voluntary one, and its failure to state that advertisement was made in more than one township is not sufficient to overcome the presumption in favtir of the regularity of official proceedings against collateral attack.
The petition for the road in question was presented at the regular meeting of the board of commissioners in October, 1885, when viewers were appointed. At the meeting of the board held in pursuance of the statute (Gen. Stat. 1901, § 1636) on the second Monday of January, 1886, a new viewer was appointed in place of one who had in the meantime become a member of the board. The plaintiff contends that this appointment was void because not made at a regular meeting of the board. The provisions of the statute bearing on the matter are as follow:
“Upon presentation of any petition for a road . . . to the county commissioners at any regular session of their board, it shall be the duty of said commissioners, if they find the petition to be a legal one, and that the proper bond has been filed, to appoint three disinterested householders of the county as viewers.” (Gen. Stat. 1901, § 6018.)
“The board of county commissioners in counties where the population does not exceed twenty-five thousand shall meet in regular session at the county-seat of the county on the first Mondays of January, April, July and October in each year, and in special session on the call of the chairman, at the request of two members of the board, as often as the interests of the county may demand.” (Gen. Stat. 1901, § 1616.)
“It shall' be the duty of the board of county commissioners to meet on the second Monday in January succeeding their election, or within thirty days thereafter, and organize by electing one of their number chairman, who shall preside at that meeting and at all other meetings during his term of office, if present.” (Gen. Stat. 1901, § 1636.)
Obviously the law does not contemplate that the board at its “organization” meeting shall elect a chair man and at once adjourn. The provision that he shall preside at the meeting implies that business is expected to be transacted after his election. ■ The meeting is one required to be held. The public has notice of the time it is to be held, at least whenever, as in this instance, the date is that specifically named in the statute. It is therefore a regular meeting in the sense that it is one fixed by law to be held on a certain- day. We think these considerations make it a regular meeting within the meaning of that phrase as used in section 6018. Other answers to the objection might readily be given, but this is sufficient.
The statute (Gen. Stat. 1901, § 6020) provides that ordinarily the surveyor shall meet with the viewers, but that where the road is upon a section-line the survey may be dispensed with. (Gen. Stat. 1901, § 6018.) Here the principal part of the road as described in the petition lay along section-lines, but for some distance it followed a half-section line. No survey was made, and this is urged as a fatal objection. Such an omission was, however, a mere irregularity, and did not render the proceedings void. The exact line of the road was shown by the viewer’s report. For a short way its location was defined by reference to a traveled road then in existence. Such a road may serve the purpose of an artificial monument nearly or quite as well as a surveyor’s stakes.
The viewers recommended the establishment of the road for only a part of the distance petitioned for. The plaintiff maintains that they had jurisdiction only to approve or reject it as a whole. The statute, however, provides that they shall in their report state “their opinion in favor of or against the establishment . . . of said road, or any part thereof.” (Gen. Stat. 1901, § 6021.) The commissioners established the road for its full length, and the further contention is made that prior to the amendment of 1903 their only authority to create a highway was derived from a favorable report by the viewers. The statute, so far as important in this connection, reads:
“The viewers shall make and sign a report in writing, stating their opinion in favor of or against the' establishment, alteration or vacation of said road, or any part thereof, and set forth the reason of the same, which report shall be delivered to the county clerk by one of the viewers on or before the first day of the session of the county commissioners then next ensuing; and ip shall be the duty of the commissioners on receiving the report aforesaid to cause the same to be read before their meeting, and if said report is favorable, and no legal objections appear against said report, and they are satisfied that such road will be of public utility, they shall order said road, survey and plat to be recorded, and from thenceforth said road shall be considered a public highway, . . . but if the report of the viewers be against such proposed road or alteration, and in the opinion of the commissioners said report is a just one, and that such road as applied for is unnecessary, then no further proceedings shall be had thereon.” (Gen. Stat. 1901, § 6021.)
It will be observed that the statute does not say that an adverse report of the viewers shall terminate the proceedings, but that if the report is against the proposed road and, the opinion of the commissioners agrees with that of the viewers no further proceedings shall be had. The fair implication is that if the ^commissioners think the report unjust they still have •discretionary authority to establish the road if by them 'considered necessary.
The order establishing the road was made at an adjourned session of the meeting at which the new viewer was appointed. The plaintiff argues that the commissioners had no jurisdiction to act upon the report of the viewers because the statute provided that it should be delivered to the county clerk “on or before the first day of the session of the county commissioners then next ensuing.” (Gen. Stat. 1901, § 6021.) The argument is that this provision by implication forbade action on the report before the next regular meeting of the board. We do not think, however, that this is the true construction of the statute, the purpose of which seems merely to have been to limit the time within which the viewers must complete their work.
The final contention is that the road was not opened for travel within seven years from the date of the order establishing it. The evidence, however, seemed to show that it was in fact opened within that time, but perhaps afterward was permitted to remain unused for the period named. This did not work a vacation of the road. (Eble v. The State, 77 Kan. 179, 93 Pac. 803.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
For present purposes these assertions of the defendant in error may be taken to be the established facts of this case, inasmuch as there was evidence to support them and the finding of the trial court was general: George Sheidley owned a note-given by a corporation, which as a matter of convenience he assigned to David E. Gurney for collection,. Gurney having no beneficial interest in it. Judgments, thereon were taken in the name of Gurney against the-corporation and some of its stockholders. Sheidley died testate, making his sister, Sarah M. Sheidley, his. legatee. Gurney thereupon assigned the judgments to her. Gurney then died and the judgments were revived in the name of his administrator, W. L. Wood, who col lected thereon $6325. Sarah Sheidley asked the probate court to order this money to be paid to her. Carrie M. Fischer, the legatee of Gurney’s legatee, also made a claim to the fund, and the probate court decided in her favor. Miss Sheidley appealed to the district court, which reversed this decision and awarded the money to her.
Miss Fischer prosecutes error, joining the administrator as a coplaintiff in error. She relies largely upon Reynolds v Quaely, 18 Kan. 361, where it was said that when a plaintiff assigns his cause of action before judgment, and then dies, a revivor should be had, not in the name of his administrator, but of his assignee. But the question of what may be the proper practice in such a situation is not here involved. Although the administrator could not have been required to prosecute the action in which the interest of his decedent had ceased, and although it may have been error to permit him to do so, his services in that connection have now been performed; he has already obtained the judgments and realized upon them. The question now is, How shall he be deemed to hold the proceeds of the note — as a part of the estate of a man who had not the slightest real title to it or in trust for the successor in interest of its actual owner? The mere statement of the question furnishes the necessary answer. The trial court rightly preferred substance to shadow and directed the money to be paid to the only person having a meritorious claim to it.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The information in this case charged the defendant with a number of unlawful sales of intoxicating liquor, and also with keeping and maintaining a common nuisance under the prohibitory law. The jury returned a verdict finding defendant guilty of three sales, as charged in the eighth, ninth and tenth counts of the information, and of maintaining a nuisance, as charged in the eighteenth count, and not guilty on the other counts.
There is nothing substantial in the claim of error in the admission of testimony. In prosecutions of this kind certified copies of the records of the collector of internal revenue are admissible. (The State v. Nippert, 74 Kan. 371, 86 Pac. 478; The State v. Schaeffer, 74 Kan. 390, 86 Pac. 477; The State v. Shook, 75 Kan. 807, 90 Pac. 234.)
The objection to the question asked of Leona Larson was properly overruled. The question was asked in rebuttal of something first brought out by the cross-examination, and, besides, could not have prejudiced the defendant.
We find no error in the refusal to give the instructions asked. The abstract contains no reference to any evidence tending to show that Grant Richards was a “spotter.” In The State v. Blackman, 32 Kan. 615, 5 Pac. 173, it was held that a judgment of conviction in a criminal case can not be reversed for any supposed error in the instructions with respect to the evidence of informers where it does not appear that the conviction might have been founded upon the evidence of an informer.
In the instructions given the jury were charged that: every material fact and allegation necessary to constitute the crime must be proved to their satisfaction beyond a reasonable doubt, and were also instructed, that if they.found that the defendant was the proprietor of the place where intoxicating liquor was sold, and that such liquor was in his possession and control: as proprietor and was sold with his knowledge and consent, he would be guilty of a sale, although he might' not have performed the physical act of handing out the-liquor to the customer himself. This instruction, taken, in connection with the evidence, was sufficient. Sheriff Wilkerson testified as to this particular sale, and' said that at the moment it was made he was standing-with the defendant in a doorway leading into another-room. The jury found that the defendant was the proprietor of the place, upon evidence, sufficient to support: such a finding, and the testimony was that this sale was; made by some one, not while the proprietor was absent,, but while he was present and when he might have seen-all that the sheriff saw. Being the proprietor of the-place, the sale was made by some one presumably in; his employ.
On the tenth count the state elected to rely upon a-, sale of two Manhattan cocktails to Leona Larson and' Kittie Edie. The precise question raised is that there-was no evidence to show that a Manhattan cocktail is-intoxicating, and the evidence can hardly be said to> have established this fact. The Century Dictionary defines a cocktail as “an American drink, strong, stimulating, and cold, made of spirits, bitters, and a little-sugar, with various aromatic and stimulating additions.” The particular kind of cocktail under discussion is popularly understood to have taken its name-from the island whose inhabitants first became addicted! to its use. While its characteristics are not so widely known as those of whisky, brandy or gin, it is our understanding that a Manhattan cocktail is generally and popularly known to be intoxicating. Apparently the jury held the same view. It has been said by this •court:
“Whatever is generally and popularly known as intoxicating liquor, such as whisky, brandy, gin, etc., is within the prohibitions and regulations of the statute, and may be so declared as matter of law by the courts.” (Intoxicating-Liquor Cases, 25 Kan. 751 [Syllabus], 37 Am. Rep. 284)
A further contention is that the verdict is insufficient- and indefinite, and not in the form required by law. The verdict, omitting the caption, is as follows:
“We, the jury impaneled and sworn in the above-•entitled case, do, upon our oaths, find the defendant, Robert Pigg, guilty on the eighth, ninth, tenth and ■eighteenth counts, as charged in the information; and not guilty on the first, second, third, fourth, fifth, sixth, seventh and eleventh counts, as charged in the information. George A. Anderson, Foreman.”
It is insisted that the verdict should contain a separate finding on each count of the information, and that the court in construing it has no power to add thereto anything which the jury has omitted. But it is unnecessary to add anything to this verdict in order to ■understand definitely the jury’s finding. It is plain from the language that the jury found the defendant guilty on four of the counts and not guilty on all the others.
The judgment is affirmed. | [
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Per Curiam:
This action of quo warranto was brought by the state on the relation of the attorney-general to oust the city of Coffeyville from the exercise of the assumed and unwarranted corporate powers, privileges and franehises. of indirectly levying and collecting license-taxes on those engaged in the unlawful sale of intoxicating liquors within the city, and also authorizing and licensing the keeping of gambling-houses in the city. It is alleged that for certain sums of money, paid from time to time in stipulated sums in the form of simulated fines and forfeitures, these persons were permitted to carry on the unlawful business and practices and to have immunity from prosecution and punishment. An answer containing a general denial was filed by counsel for the city. The case was finally submitted upon testimony taken to be used in this and the case of The State v. Wilcox, ante, p. 597, which abundantly sustains the allegations and claims of the state. No one appeared at the final hearing to contend that the charges made by the state were not sustained by the proof nor to justify the illegal practices of the city authorities.
A judgment of ouster is awarded against the city, in accordance with the prayer of plaintiff’s petition. | [
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The opinion of the court was delivered by
Price, C. J.:
This is an action to recover for personal injuries sustained by plaintiff — a pedestrian — when struck by defendant’s automobile.
The jury returned a verdict in favor of plaintiff for $28,575. Following a hearing on defendant’s motion for a new trial the trial court found there was misconduct of the jury in discussing and considering matters relating to probable insurance coverage of defendant and attorney fees — resulting in prejudice to the substantial rights of defendant. The verdict was set aside as to damages and a new trial limited to the question of damages was granted.
Both parties have appealed.
Although other matters are raised and will be mentioned briefly —we consider the real and decisive questions to be—
1. Whether the record establishes such misconduct of the jury in arriving at the amount of the verdict as to show prejudice to the substantial rights of defendant, and—
2. Whether, if the finding of misconduct and resulting prejudice was correct — a new trial limited to the question of damages should have been granted rather than a new trial on all issues.
For reasons hereafter stated we are of the opinion that both rulings were correct and should be affirmed.
Defendant White was a school teacher in Alta Vista. She roomed in a house on the northeast corner of an intersection. Plaintiff, a 78 year old widow, was a long-time resident of Alta Vista and lived a few doors north of defendant — on the east side of the street. They were acquainted.
At about 8:30 on the morning of October 31, 1966 plaintiff left her home to walk to a neighbor’s house on the west side of the street. In the meantime defendant came out of her house intending to drive to school. Her car was parked in the street in front of the house heading north. She discovered that during the night Hallo ween pranksters had jacked up the car and had done a thorough job of “soaping” the windows and windshield. She succeeded in pushing it back down on its wheels and attempted to scrape off the windows. While she was doing this the plaintiff walked by, and they spoke briefly. Defendant, being in a hurry to get to school, decided to drive to a nearby service station to have her windows cleaned.
In the meantime plaintiff had left the neighbor’s house and walked south to an east-west sidewalk and then east a few feet to the edge of the street — intending to go to another neighbor’s house to the south of the intersection. She saw defendant’s car— which, as stated — was parked heading north. She saw no other cars. The street was coarse gravel or chat. At this moment defendant — instead of driving ahead north — proceeded to back her car in a southerly and then westerly direction. It struck plaintiff, knocked her down, and ran over her. She sustained a broken hip, a severely lacerated arm, and cuts and bruises to her head and other parts of her body. She was hospitalized at Council Grove and later in Manhattan.
This law suit was filed in May of 1967.
The pleadings contained the usual allegations and denials of negligence, and require no mention. And neither is the pretrial order of any significance for our purposes. The case was tried with the result as above stated.
At the hearing on defendant’s motion for a new trial seven of the jurors testified concerning "proceedings” in the jury room. We summarize briefly.
Juror A — A verdict of $23,000 was first reached. Then followed a discussion that state law required a person to carry $50,000 insurance, and that after attorney fees were paid plaintiff would not have much left to live on. He did not recall discussion that “it was a fight between two insurance companies”.
Juror B — When they went into the jury room someone “wondered out loud if this isn’t between two insurance companies rather than between two parties,” and it was suggested that the law required a person to carry “fifty or a hunded thousand”. After they decided to hold for plaintiff they arrived at a figure of $23,000. Some thought it should be more. One juror suggested that attorney fees would be from “25 to 50 per cent”. He, as foreman, then suggested that each put down a figure increasing or decreasing the $23,000, and that the figures be “averaged”. There was no agreement to be bound by the averaged figure. The jurors assumed “they could discuss anything they wanted to in the jury room”.
Juror C — They arrived at the $23,000 figure as a “starting point.” There was general discussion about attorney fees. Someone mentioned the amount of insurance a person was required to carry and they then decided to increase the $23,000 figure. Each wrote down a figure, and upon being averaged the ultimate verdict of $28,575 was reached and all agreed to that amount.
Juror D — When they first went in the jury room there was discussion of insurance coverage of defendant. The $23,000 figure was a “starting point”. There was general discussion as to how much insurance a person had to carry. He knew that attorneys “get a big ‘hook’ out of everything”. He recalled no agreement to be bound by the average of the figures each wrote down, and he had no idea they were not supposed to discuss insurance in the jury room.
Juror E — When they went into the jury room mention was made of insurance — $25,000 or $50,000, and that it was a fight between two insurance companies”. They arrived at the $23,000 figure by each one writing down an amount, adding them and dividing by twelve. Some discussion was had as to attorney fees, and there seemed to be agreement that $23,000 was not enough. They then wrote down additional amounts pursuant to an agreement that the average would be the verdict — although he did not believe such agreement was binding.
Juror F — There was casual mention of insurance and attorney fees. The initial figure of $23,000 was considered to be too low, so each put down a figure and they “averaged it out”. He did not recall a prior agreement to be bound by the quotient. All agreed to the ultimate figure reached.
Juror G — He recalled very little conversation about insurance or attorney fees. No one seemed to know how much insurance a person was required to carry. They rejected the $23,000 figure as being too low. Each wrote down another figure and they agreed beforehand to be bound by the average. After the higher figure was reached the foreman asked each juror “if it was all right” and “everybody agreed to it”.
In a detailed memorandum opinion the trial court found on conflicting evidence that there was no quotient verdict. Such finding — being supported — is not to be disturbed. It further found, however, that the jury was guilty of misconduct in discussing and considering matters relating to insurance coverage and attorney fees and that it must be concluded that the jury was affected by such extrinsic matters to the prejudice of defendant. The court further found that discussion and consideration of such matters did not touch or relate to the question of liability, that the determination of liability was fully sustained by the evidence and that such determination need not be vitiated by the jury’s consideration of the matters in question. Accordingly, the motion for a new trial was sustained as to the issue of damages only, the verdict was set aside as to damages, and a new trial ordered on that issue only.
Defendant appealed, and contends die trial court erred in (1) denying her motions for a directed verdict at the close of plaintiff’s evidence and at the close of all the evidence, (2) denying her motion for judgment notwithstanding the verdict, and (3) granting a new trial on the question of damages only rather than a new trial on all issues.
Plaintiff filed a cross-appeal from the order setting aside the verdict as to damages and granting a new trial as to that issue.
Defendant’s first two contentions are without merit. The evidence did not convict plaintiff of contributory negligence as a matter of law. The physical facts of defendant backing her car into the intersection when her vision was obscured were such as to present a proper question for the jury on the question of negligence of both parties. The record contains no complaints as to instructions, and the presumption is that the jury was properly instructed on all issues pertaining to liability.
Was this jury guilty of misconduct to the prejudice of defendant?
K. S. A. 60-259 provides that a new trial may be granted on all or a part of the issues when it appears that the rights of a party have been substantially affected because of misconduct of the jury. Concededly, a trial court has a wide discretion in the matter, and the rule is that an order granting or refusing a new trial will not be reversed unless a clear abuse of discretion is shown (Timmerman v. Schroeder, 203 Kan. 397, 400, 454 P. 2d 522). Matters as to there being insurance coverage of a defendant usually arise through references to such fact injected during the course of a trial, and the cases on the subject have been decided pretty much on a case-by-case basis — depending on the particular facts. (See the numerous decisions cited in the opinion and dissenting opinion in Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100).
During the course of this trial, however, the record shows no reference to any insurance coverage of defendant or the probability of the case being a “fight between two insurance companies”. But the record of the hearing on the motion for a new trial does show that immediately after the jury retired there was discussion of insurance coverage of defendant and the fact that probably the case was a fight between two insurance companies. Where or how some of the jurors got the idea that the law requires a person such as defendant to carry a certain amount of liability insurance is not disclosed. Further, after the initial figure of $23,000 was reached, the jury proceeded to speculate not only on the insurance feature but on how large a “hook” would go to plaintiffs attorney in the event of a verdict in her favor. The function of a verdict in a case of this kind is to compensate for the injuries sustained — uninfluenced by extraneous matters here shown.
We recognize fully the argument often advanced that jurors are only “human”, that in this day and age it is common knowledge that most people carry automobile liability insurance, and that in saying that jurors are prohibited from taking into consideration such matters “within the common knowledge of all mankind” courts are in reality merely “hiding their heads in the sand”. It also is a matter of common knowledge that attorneys charge for their services and expect to be paid for their work the same as anyone else. Again, we say that no hard-and-fast rule can be laid down, and that each case must be decided on its particular facts taking into consideration the over-all picture presented.
Without further discussion we hold that under the facts shown here the trial court was correct in finding the jury was guilty of misconduct to the prejudice of defendant’s substantial rights, and the verdict as to damages was properly set aside.
Did the trial court err in limiting the new trial to the question of damages rather than ordering a new trial on all issues?
As stated, the statute (K. S. A. 60-259) authorizes the granting of a new trial on all or part of the issues.
Plaintiff’s position of course is that it was error to grant a new trial on any issue, and suggests that if the verdict is to be disturbed the court should have ordered a remittitur of damages in excess of the initial figure of $23,000 reached by the jury.
Defendant contends that here the issues of liability and damages were so intertwined and related that she is prejudiced by not having a new trial on all issues, citing a number of cases including Parker v. Allen, 171 Kan. 360, 233 P. 2d 514; Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60 and Timmerman v. Schroeder, above.
Running through the decisions dealing with the question is the rule that where liability has definitely been established, that where it may be said the questions of liability and the amount of damages are separate and distinct, that where there is no indication the verdict was the result of a compromise involving the question of liability, and where it may fairly be said defendant will not suffer manifest prejudice — a new trial limited to the issue of damages is proper (Schmidt v. Cooper, 194 Kan. 403, 399 P. 2d 888). In ruling as it did the trial court stated—
“The matters of complaint here relate to the damage portion of the verdict only. The objectionable matters in the jury room did not touch or relate to the question of liability. There is no indication or suggestion that the determination. on that issue was influenced thereby. In this case, the defendant was backing her automobile which she knew had the windows covered with wax or similar substance which obscured her vision and she did not look out for or see the plaintiff at plaintiff’s place of travel until after the plaintiff had been struck by her automible. The determination on the issue of liability by the jury is adequately sustained and is not and need not be vitiated by the jury’s error in its consideration of outside matters.”
Under the facts and the law the ruling of the trial court was correct. As to both the appeal and cross-appeal the judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This case is the sequel to Brown v. State Highway Commission, 202 Kan. 1, 444 P. 2d 882, in which we affirmed a judgment against the highway commission for damages resulting from a defect in a state highway. (K. S. A. 68-419.) In subsequent proceedings before the district court, plaintiff’s claim for interest on the judgment was denied, and he now appeals from that order.
The sole question for determination is whether the state highway commission is liable for interest on a judgment rendered against it in an action under the provisions of K. S. A. 68-419.
The general interest statute, which has been a part of our law since 1863, provides, in substance, that all judgments shall bear interest from the date on which they are rendered. (K. S. A. now 1969 Supp. 16-204.) In apparent recognition of the sweeping character of the doctrine of sovereign immunity, and the underlying principle that a state (or a county as an arm of the state) can be sued only with its consent, this court has held that the statute has no application to judgments against the state or county. (School District v. Kingman County Comm'rs., 127 Kan. 292, 273 Pac. 427; Salthouse v. McPherson County, 115 Kan. 668, 224 Pac. 70; Jackson County v. Kaul, 77 Kan. 717, 96 Pac. 45. Also, see, First Nat’l Bank v. Wabaunsee County Comm'rs, 145 Kan. 552, 66 P. 2d 558.) The rule is well stated in Salthouse v. McPherson County, supra:
“. . . The county is not hable for interest on its obligations, for a statute which in general terms requires the payment of interest does not apply to the state or county unless it expressly so provides. (Jackson County v. Kaul, 77 Kan. 717, 96 Pac. 45.) The statute declares that all judgments shall bear interest. (R. S. 41-104.) There being no express reference to the state or county, they are by implication excepted from the operation of the general rule. (See 15 R. C.L. 17.)” (p. 673.)
The thrust of plaintiff’s entire argument in this appeal is that with the enactment of 68-419, waiving the state’s immunity in respect to actions for damages resulting from highway defects, the legislature, by implication, brought the state within the purview of the general interest statute (16-204). In other words, waiver of immunity from suit impliedly waived immunity from liability for interest. We are unable to agree.
Since the state cannot otherwise be sued, its liability for damages resulting from highway defects is purely statutory. A statute waiving immunity must be strictly construed, and the court has no right to enlarge the scope of the statute or to amend the law by judicial interpretation. (Cronin v. State Highway Commission, 182 Kan. 42, 318 P. 2d 1066; Brock v. State Highway Comm., 157 Kan. 252, 139 P. 2d 811; American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 69 P. 2d 1091.)
Waiver of immunity by implication was touched on in First Nat'l Bank v. Wabaunsee County Comm'rs, supra, which was an action to recover principal and interest on county warrants. Although no statute expressly provided that such warrants should bear interest, this court held the various statutes under consideration implied that the legislature expressly contemplated the counties’ inability to pay what they owed when it was due; therefore, interest was recoverable. The court, in reaching its conclusion, emphasized that the statutes were “so clear and compelling as to leave no doubt” about the lawmakers’ intention. The same view was expressed earlier in Jackson County v. Kaul, supra, in the following language:
“. . . The general rule that the state is not bound by statutes limiting rights or imposing burdens unless it be expressly named or be intended by necessary implication is familiar. ... To bind the state by an implication it must he one that is unavoidable. If there be a doubt upon the subject, that doubt must be resolved in favor of the state. . . .” (p. 719)
The statute authorizing this action against the state highway commission expressly provides for payment of any judgment rendered in such case out of the highway fund. Nothing, however, is said about allowing interest on such a judgment, nor is there anything from which we can conclude that the legislature intended, by way of implication, to waive the state’s immunity from liability for interest.
The plaintiff suggests that since all procedural laws apply to actions filed pursuant to the statute, the general interest statute (16-204) also applies. We find this argument without merit, for the general interest statute is substantive in nature, rather than procedural. The authority to bring an action under the statute (68-419), while carrying with it many of the ordinary incidents of litigation, does not by implication embrace consent by the state to be held liable for interest on judgments under the general interest statute.
Substantial support for our conclusion may be found in numerous decisions collated in the annotation in 24 A. L. R. 2d 928. Also, see 45 Am. Jur. 2d Interest and Usury § 60; 49 Am. Jur. States, Territories, and Dependencies § 75; 81 C. J. S. States § 196.
The rule that a state is not liable for interest in the absence of a statute is grounded upon public policy. Delay or default ordinarily cannot be attributed to the state, for it is presumed to be ready to pay what it owes. (First Nat'l Bank v. Wabaunsee County Comm'rs, supra.) While the delay in this particular case of twenty-two months before the judgment was paid may be inordinate and unreasonable, we believe such matters rest within the exclusive province of the legislature. That body has full authority to determine the feasibility of waiving the state’s immunity from liability for interest, including interest on judgments rendered finder K. S. A. 68-419. If the lawmakers, in their wisdom, deem it advisable that the state be liable for interest on judgments, they may enact appropriate legislation which will leave no doubt about the matter.
The judgment is affirmed. | [
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Per Curiam:
There was testimony which tended quite strongly to show that the deed from George H. Winsor to his son Frank, although absolute in form, was a mortgage given to secure a debt of $300, and that A. D. Winsor, another son, to whom Frank conveyed the farm after their father’s death, knew the facts and circumstances when he took the conveyance. There was evidence that the last time the father left the place, which was less than three weeks prior to his death, he went to Frank and demanded that the farm be deeded back to him, and that Frank told him it would not be done until the $300 which he owed was paid. In order to establish the plaintiff’s claim that the farm belonged to the heirs it was not necessary to prove that the debt which the mortgage was given to secure had been paid. Continued default would not make the conveyance absolute if it were in fact a mortgage. The evidence also tended to establish that A. D. Winsor, the defendant in error and one of the defendants below, lived on the farm with his father for some time prior to the latter’s death; that the personal property on the farm, or some of it, belonged to the father; that the defendant in error took or retained possession of it and has never accounted to the plaintiff or to the other defendants in any manner for the share belonging to their father. We have no hesitation in saying that the court erred in sustaining the demurrer to the evidence.
The judgment is reversed, and the cause remanded for another trial. | [
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Per Curiam:
The purpose of the petitioner is to have this court review the action of a justice of the peace binding him over to the district court to answer a felony charge. There is evidence from which a justice might fairly conclude that the petitioner made an assault with the intent charged. The proceedings are regular, and the facts ought to be investigated before a jury.
The writ is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action by M. J. Click and R. C. Click, mother and father of Charles A. Click, deceased* to recover damages for his death by the alleged negligence of the railway company. The trial was to a jury and the verdict and judgment were for the plaintiffs. The railway company prosecutes error.
Charles A. Click, an unmarried son of the plaintiffs, came to his death by falling under, and being run over by, a railway-car in the yards of the Missouri Pacific Railway Company, at Osawatomie, October 4, 1904. He died intestate, and no administrator of his estate was appointed.
Three grounds of negligence are alleged in the petition, one of which was excluded from the consideration of the jury by an instruction that it was entirely unsupported by evidence. The remaining grounds were: (1) That the company failed in its duty to the deceased by employing an incompetent person as engineer, whose ignorance caused the accident in question; (2) that the company failed in its duty to the deceased by allowing various obstructions to accumulate and remain in its depot yards at Osawatomie, and by causing piles of cinders to be deposited and remain along its railway tracks therein.
The jury answered one of the special questions submitted to them as follows:
“Ques. If you find that deceased did not come to his death by being thrown from the coal-car, then state what did cause his death, and the particular act or acts ■of negligence on the part of the defendant company which brought it about. Ans. Pile of cinders between tracks three and four.” .
This answer renders it unnecessary for us to consider any claim of negligence except the last (numbered 2), and also relieves us from reviewing the questions relating to the introduction of evidence pertinent only to the other claims. In answer to this claim of the plaintiffs the defendant alleged that the deceased, Charles A. Click, had been employed as a field switch-man in its yards at Osawatomie for a number of years prior to the date of the accident; that he was thoroughly familiar with the yards and his duties therein; that he was familiar with the condition of the yards and tracks at the time of his injuries; that his injuries resulted from his failure to exercise ordinary care' to avoid the dangers incident to his employment; and that at the time the deceased entered the employ of the company he had signed a written statement admitting that he had been fully advised as to the dangers incident to his employment and that he assumed the risks and hazards incident thereto. The reply was a general denial. There was evidence tending to support all the allegations of the defense.
In view of the facts proved by the defendant’s witnesses relative to the long-continued employment of deceased in the yards, continuing up to the time of the accident, and his evident familiarity with everything in the yards, including the customary practice of the company of having cinders piled along the tracks for the purpose of repairing them, the following instructions given by the court seem to be erroneous:
“(20) If you find from the evidence that the deceased, Charles A. Click, was injured in the manner alleged in the plaintiffs’ petition solely because of the condition of the yards and tracks, and that deceased had equal opportunity with defendant to know of such condition, and had knowledge thereof, and continued to work in said yards with knowledge on his part of the dangers incident thereto, he would then be held to have assumed the risk of all such dangers of which he had notice or knowledge.
“(21) If you find from the evidence that at the time of his death the said Charles A. Click was in the employ or the defendant railroad company as field switch-man, and was at said time at his post of duty and exercising ordinary care, then in the absence of proof that he had knowledge of the defective and dangerous condition alleged to have existed in said yards and of the alleged unskilfulness of said engineer, he had a right to assume and presume that said yards were in a reasonably safe condition to work upon and that said engineer was a reasonably skilful engineer.”
The criticism of instruction No. 20 is the implication therein that it was not sufficient that the defendant should prove the deceased had full and equal op portunity with the employer to know of the piling of cinders and leaving of other obstructions in the yard, but that it must prove that the deceased had actual knowledge of the pile of cinders which caused the accident. This imposes upon the defendant the almost impossible task of proving what a deceased person actually knew at the time of his decease. It is the ordinary rule that a person of full age and in possession of all his faculties, when brought in such relation to physical objects that he would naturally observe their presence, will be presumed to know and take cognizance thereof; in other words, it is too much to require proof, under such circumstances, that one actually did know such facts as a person ordinarily would know if placed in the same position.
Instruction No. 21 is even more objectionable. It assumes that there was an absence of proof that the deceased had knowledge of the defective and dangerous condition alleged to have existed in the yards, and instructed the jury that, in the absence of such proof, the deceased had a right to assume that the- yards were in a reasonably safe condition, and this notwithstanding the evidence offered by the defendant showed that the deceased had full opportunity to know, and almost necessarily knew, the actual condition of the yards. The jury should have been, instructed that in determining whether the deceased had knowledge of the cinders and obstructions they should take into consideration his opportunity of. knowing thereof, as shown by the evidence, and that if the dangers therefrom were open to common observation and as fully known to him as to the railway company he should be held to have assumed the risk of his employment in the yards. The true rule is stated in Walker v. Scott, 67 Kan. 814, 64 Pac. 615:
“A servant assumes the- ordinary risks of his- employment in cases where its dangers are open to common observation and are as fully known to him as to his employer, and where he is as capable of knowing and measuring the dangers of such employment and is not induced to continue in the work by any promise of betterment or indemnity from his employer. In such a case the servant can not recover from his employer damages for any injury that may come to him in the course of his employment.” (Syllabus.)
(See, also, Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; U. P. Rly. Co. v. Monden, 50 Kan. 539, 31 Pac. 1002; Railroad Co. v. Mealman, post.
The evidence tended to show that cinders were only placed between tracks numbered 3 and 4, and the jury found that the cinders between those tracks caused the accident. It therefore appears that the refusal to give the following instruction, requested by the company, was erroneous and was material, especially as the evidence did not directly show that the deceased was between tracks numbered 3 and 4 at the time of the accident.
“The jury is instructed that it is alleged in said second amended petition that, by reason of cinders, clinkers, ballast, timbers, scraps of iron, and obstructions in and around said tracks, the said deceased, Charles A. Click, was caused thereby to fall, stumble, and' be thrown over them: If you find from the evidence that there were cinders, clinkers, ballast, timbers, scraps of iron, and other obstructions between tracks numbered 3 and 4, and that said deceased was at no time between tracks numbered 3 and 4 prior to his injury, then you will disregard all evidence as to the condition of the ground between said tracks numbered 3 and 4.”
We base this decision, .however, on the assumption of the risk of dangers from the employment. The deceased must have known of the custom (which the evidence shows had long continued during his employment) of frequently piling cinders along the tracks to ballast or repair them. The findings of the jury show that the particular pile of cinders which caused the accident was of sufficient size and height to be an object of common observation. The nature of the employment of the deceased, moreover, required of him constant familiarity with every part of the yards, and it was his duty to observe and guard against every apparent danger. Any danger reasonably to be apprehended from the pile of cinders which caused the accident was as apparent to him as it could be to any officer or other employee of the company, and therefore it should be held that he assumed the risk of his employment.
• The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Mason, J.:
The city of Osawatomie brought an action against Miami county alleging in substance that for a period of some fifteen years the county had re tained for its own benefit a part of the money collected upon taxes levied by the city, especially with respect to the portion paid as interest by delinquents. The petition asked an accounting and a judgment for the amount found due. The county filed a motion to require the plaintiff to state separately its causes of action, upon the theory that an independent right of recovery accrued upon the failure to pay the amount due at each quarterly distribution. This motion was sustained, and an amended petition was filed containing twenty-eight distinct counts. A demurrer was sustained as to all of them based upon transactions that took place more than three years before the commencement of the action, upon the ground that the statute of limitation had barred a recovery thereon. The plaintiff prosecutes error.
We need not determine whether the trial court erred in requiring the plaintiff to recast the petition, for the order was complied with, and the controversy can be tried upon the new pleading as well as upon the one it superseded. The important question to be decided is whether the statute of limitation applies to an action of this character.
“It is universally held by courts that no statute of limitations will run against the state or the sovereign authority unless the statute itself expressly so provides, or unless the implications of the statute to that effect are so strong as to be utterly unavoidable.” (The State v. School District, 34 Kan. 237, 242, 8 Pac. 208.(See, also, The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041.)
And it is generally held that the same immunity attaches to subordinate political divisions of the state, including municipal corporations, whenever the character of the litigation is such- that the reasons for the exemption apply with substantially equal force. The following are illustrative statements of the rule:
“The general rule is that statutes of limitations run not only for but against municipalities, except in liti gation respecting public rights, or property held upon a public trust.” (25 Cye. 1Q09.)
“The better rule seems to be that where a municipality seeks to assert rights which are of a public nature and such as pertain purely , to governmental affairs, the exemption in favor of sovereignty applies and the statute of limitations will not constitute a bar unless it is expressly so provided.” (19 A. & E. Encycl. of L. 191.) .
“The statute, does .not. run against, the state unless expressly so provided, and all doubts as to whether it does so run are to be resolved in favor of the state. This rule extends to minor municipalities created as local governmental agencies' in respect to governmental affairs affecting the general public.” (8 Cur. Law, 770.) ....
Iñ an elaborate note upon the general subject of the maxim, “Lapse of time does not bar'the right'of the crown,” in 101 Am. St. Rep.' 144,' its application to public bodies other than the state is fully considered. The' aüthorities there gathered show that while the broad statement is often made that statutes of limitation run’against'municipal’corporations in the same manner "as against individuals, "the distinction noted, based upon the character of the right asserted, is generally recogñizéd. The' courts, howevér, are not in harmony as to its precise scope or the reasons for it. In Ralston v. Town of Weston, 46 W. Va. 544, 33 S. E. 326, 76 Am. St. Rep. 834, it was held, overruling three earlier decisions, that an action by a municipality for the recovery of possession of ground claimed as a street was not barred by lapse of time, even under a statutory provision that “every statute of limitation, unless otherwise expressly provided, shall apply to the state.” (W. Va. Code, 1906, § 1137.) The court said:
“That the statute of limitations applies to municipal corporations there can be no question; that it now applies to the state in like manner as to individuals, by express statutory provision, there can be .no question; but it does not apply to the sovereign rights of the people, except as they are restricted in the constitution by their manifest will therein contained; . . . The state is not the sovereign in this country. The people who make it are sovereign, and all its officers are but their servants. So statutes of limitations which are made to apply to the state do not apply to the people or their public rights. But they only apply to the state in the same cases that they apply to individuals. The entry upon, or recovery of, lands held for sale, suits on bonds, contracts, evidences of debt, or for torts — all these, though the state is a party, are subject to bar. As to all such things, there is no reason why the state should have any longer time than an individual. Such is not the case with the right of taxation, the right of eminent domain, the right to use the public highways, and other rights which pertain only to the sovereignty of the people. None of these can ever be lost by the negligence of the public servants, who have no power of disposal over them in any way whatever, except according-to the express will of the people.” (Pages 547, 549.)
In United States v. McElroy, 25 Fed. 804, the view was taken that under some circumstances the lapse of time might operate to bar a claim of the general government, the court saying:
“It may ... be conceded that neither the statute of limitations nor laches bars the government as to any claim for relief in a purely governmental matter; but when the government comes as a complainant into a court of equity, asserting the same rights as a private individual — a mere matter of dollars and cents, involving no questions of governmental right or duty— it seems that, although technically the statute of limitations may not bar, the ordinary rules controlling courts of equity as to the effect of laches should be enforced.” (Page 804.)
This case, however, was reversed by the supreme court. (United States v. Insley, 130 U. S. 263, 9 Sup. Ct. Rep. 485, 33 L. Ed. 968.) A very satisfactory expression of the rule is found in Simplot v. Chicago, M. & St. P. Ry. Co., 16 Fed. 350, 5 McCrary, 158, in these words:
“The true rule is that when a municipal corporation seeks to enforce a contract right, or some right belonging to it in a proprietary sense, or, in other words, when the corporation is seeking tó enforce the private rights belonging to it, as distinguished from rights belonging to the public, then it may be defeated by force of the statute of limitations; but in all cases wherein the corporation represents the public at large or the state, or is seeking to enforce a right pertaining to sovereignty, then the statute of limitations, as such, can not be made applicable.
“In the latter cases, the courts may apply the doctrine or principle of an estoppel, and by means' thereof, where justice and right demand it, prevent'wrong and injury from being done to private rights.” (Page 361.)
A summary of the doctrine discussed is thus stated by the author of the note referred to:' ■
“Theoretically, the rule that statutes of limitation do . not run against governmental bodies when asserting a public right or protecting property held for public úse, and that such statutes do run against such bodies when asserting private rights or enforcing rights arising from out of ordinary business transactions, is sound. The rule is supported by the weight of authority, although there are some cases which seem to hold that the pecuniary interests of the United States are matters of sovereignty. The difficulty of any rule in regard to the subject’ lies in its application to the varied circumstances of each particular case. There-are, of course, many circumstances under which it. would be readily conceded that the governmental body is acting strictly in a sovereign capacity, but, on the-other hand, there are many other circumstances when it seems to us that it is extremely doubtful whether the governmental body is acting in a strictly sovereign capacity in attempting to enforce alleged property rights. It would seem that when all the people of the-United States or of the state (both of which seem to-be recognized as representing the sovereignty) are interested in the subject-matter of the litigation, that there is no question about the maxim applying, but that when only a portion of the people of the state— for instance, that part of the people residing in some minor subdivision of the state, such as a county or municipal corporation — are the sole parties interested in the subject-matter of the litigation, then the maxim does not apply. It seems to be held by some of the courts that in so far as a municipal corporation acts merely for the benefit of the people within the limits of the municipality its actions are similar to those of a private corporation acting in the interest of its stockholders, and that as to such actions the municipality is bound to use the same degree of vigilance as a private corporation, but that when the 'municipality acts in regard to some matter or thing in which all the people of the state are interested, though, perhaps, in a lesser degree than the people within the limits of the municipality, it then acts as the representative of the sovereignty, and the maxim applies.” (101 Am. St. Rep. 184.)
The geographical or territorial test proposed may be helpful in some instances, and even determinative in certain classes of cases, but we doubt its universal applicability. Inasmuch as the city exists in part as an agency of the state for general governmental purposes, and its maintenance depends upon its power to levy and collect taxes, it might be argued that the state itself, or the general public, has an interest in protecting the exercise of that power. But the same argument might apply, although with less force, to the prosecution of any money demand, upon the ground that the purpose of enforcing it is to aid in meeting the expenses of maintaining the municipality. We think the more vital consideration has relation to the character of the power in exercise of which the demand originates. The power of taxation is an essential attribute of sovereignty. This is true no less of taxes levied ’by minor political divisions than of those directly imposed by the state. (27 A. & E. Encycl. of L. 620.) No statute of limitation should apply to any step in the exercise of that power unless a legislative intention that it should do so is expressly stated or appears by the clearest implication. In The City of Burlington v. The B. & M. R. R. Co., 41 Iowa, 134, it was held that the recovery of city taxes by action was subject to the bar of the statute of limitations. But this excerpt from the opinion shows the grounds of the •decision:
“The right of the city to maintain this action can only be supported upon the ground that the taxes are debts, properly held by it in its proprietary character. It appears in this action in that character, claiming to recover on the ground that the defendant is its debtor upon an obligation created by the assessment and levy of the taxes. In the debt thus created it has a right of property in its proprietary character.” (Page 141.)
A tax is not ordinarily regarded as a “debt.” (See mote on recovery of personal judgment for taxes, 42 Am. St. Rep. 655.) The argument of the Iowa court ,seems to be that when the city chooses to collect its taxes through the courts it thereby elects to treat its •claim as an ordinary contract obligation, and must submit to all the consequences of such election, one of which is that its demand must be considered as contractual for all purposes — including that .of determining the effect of the statute of limitations. Even granting the soundness of this reasoning it does not necessarily reach the facts of the present case. Here the tax has been paid by the property owners, but its proper distribution is prevented by the misconduct of one of the agencies which the law has provided for that purpose. True, mandamus would doubtless lie against the county treasurer to compel a proper application of funds on hand, but if the money collected for the city lias been diverted to the use of the county the present action, which is in effect for an accounting, seems'to he an appropriate, if not the only adequate, remedy. (Board of Education v. Spencer, 52 Kan. 574, 35 Pac. 221.) The distribution is not required or expected to be made in the very moneys received. The matter is largely one of bookkeeping. Although the county may have misappropriated the city’s- money, and thereby obliged the latter to sue for its recovery, the action is essentially to compel the performance of a public duty, and not to enforce a private contract.
In State v. Mayor, etc., of City of Columbia [Tenn. 1899], 52 S. W. 511, it was held that statutes of limitation barring taxes not collected or sued for within a stated time had no application to an action to recover an amount which the city received from taxpayers and wrongfully withheld from the state, the court saying:
“These statutes have reference only to suits or proceedings to collect taxes from the taxpayer, and do not apply to suits against persons who may get the revenue of the state in their possession, and who are by such suit called upon to restore the same to the state. And it is immaterial whether we view the city of Columbia as one who has converted the state’s funds to its own use, or as one who holds a fund on which the state has-a lien for its taxes and refuses to surrender it to the state, or as a person charged by law with collecting the state’s funds of the character here involved, and who, having collected, refuses to account for and pay over the fund to the state. The result is the same in either view, so far as concerns the statute of limitations. They, do not apply in either event.”
The present controversy involves no element of private contract. It does not concern the vindication of any private right. It is between public officers or public bodies with respect to the performance of a public duty,' in which the people of the state at large have at least an indirect interest. It is not affected by mere general provisions of the statute, and no statutory limitation is made to ..apply to it either in express terms or by necessary implication. This.conclusion is in keeping with what has been said on the subject by courts generally, and by this court so far as the matter has been touched upon. The authorities are so fully collected in the note already referred to (101 Am. St. Rep. 144) as to make additional citation unnecessary.
The judgment is reversed and the case remanded, with directions to overrule the demurrer to the amended petition. | [
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The opinion of the court was delivered by
Graves, J.:
This action was commenced in Shawnee county by the Alma National Bank to recover upon a township warrant issued by Rossville township to the Leavenworth Bridge Company, and by it assigned to the bank. A demurrer to the petition was overruled by the court, and the township brings that question here for review.
The facts contained in the petition were substantially as follow: Prior to the year 1903 there was a bridge across the Kansas river which connected Ross-ville township in Shawnee county and Maple Hill township in Wabaunsee county. During the year 1903 this bridge was swept away by the high waters of thsit season. The bridge constituted a part of the public highway between the townships named.. An effort was made to have the bridge reconstructed, and to that end subscriptions were made by each of such counties and townships. The Rossville township officers— ■trustee, clerk, and treasurer — on August 26, 1903, met and agreed, for the township, to give the sum of. $1200 toward the rebuilding of the bridge. A copy of the proceedings of this meeting reads:
“Rossville, Kan., August 26, 1903.
“At a meeting of the township board of Rossville township, held at the Rossville State Bank, it was agreed to give $1200 (twelve hundred) toward the reconstruction of the Maple Hill-Rossville bridge. Those present at said meeting were W. J. Kirkpatrick, F. P. McCullough, I. B. Alter, and H. G. Adams.”
Notice of such action was given to the board of county commissioners of Wabaunsee county, which reads:
“To the honorable board of county commissioners of Wabaunsee county: Gentlemen — We, the undersigned, the township of Rossville township, have this day agreed with H. G. Adams to give $1200 (twelve hundred) toward the reconstruction of the Maple HillRossville bridge. The above, amount to be paid either to your county board or to the bridge company building the bridge. The same to be paid when said bridge is completed. W. J. Kirkpatrick, Trustee.
I. B. Alter, Township Treasurer.
F. P. McCullough, Twp. Clerk.”
The subscriptions made by this and the other municipalities aggregated the sum of $15,000. A contract was made by the board of county commissioners of Wabaunsee county with the Leavenworth Bridge Company to build the bridge. The bridge company constructed the bridge .in accordance with such contract, and after its completion the board of county commissioners of each of such counties, and the boards of each of such townships, met at the bridge, examined and inspected it, and accepted the same as being in accordance with the contract under which it was built. The bridge afterward was opened for public travel, and it has ever since been used as a part of the public highway.
The officers of Rossville township, after the bridge was completed, issued to the Leavenworth Bridge Company a township warrant, in payment of the subscription made for the construction of the bridge, which reads:
“State of Kansas. No. 114. $1200.
“To I. B. Alter, P. O. Rossville, Treasurer Rossville Township, Shaivnee County:
“Pay to the order of the Leavenworth Bridge Company twelve hundred dollars out of general fund for Rossville township for rebuilding Maple Hill-Rossville bridge, as allowed by the township board.
W. J. Kirkpatrick, Township Trustee.
“Countersigned:
F. P. McCullough, Toivnship Clerk.
-, Treasurer.”
' On December 22, 1904, this warrant was presented by the bridge company to the township treasurer, who indorsed it as follows:
“Presented for payment, but not paid for want of funds. ■ I. B. Alter, Treasurer.
“December 22, 1904. Registered No. 114.”
The subscription made by the township board of Rossville township was not authorized or ordered by a vote of the electors of the township, and the available means of the township at the time the subscription was made did not exceed the sum of $91.27, and has not since exceeded the sum of $276.75. The township board of Rossville township acted in good faith and, as they believed, for the best interests of the township and in compliance with the wishes of the people. On January 20, 1905, the bridge company sold the warrant to the plaintiff bank and guaranteed the payment thereof.
It is claimed by the township that the subscription made by its officers was absolutely void for the want of power in them to make it. The only power given to townships to build or reconstruct bridges is contained in one or the other of the following statutes. Section 479 of the General Statutes of 1901 reads:
“The board of county commissioners of any county, the mayor and common council of an incorporated city, and the trustee, clerk, and treasurer of any municipal township in this state, are hereby empowered to issue the bonds of such county, city or township, in any sum not greater than five per cent., inclusive of all other bonded indebtedness, of the taxable property of such county, city or township, for the purpose of building or purchasing bridges, free or otherwise, and for the purpose of purchasing land and erecting buildings thereon for the poor; provided, that the limit prescribed in this section shall not apply and be considered to restrict or prevent the issuing of any bonds heretofore voted, or vote now pending in any county, city or township in this state, and which bonds may not have yet been isued.”
The issuance of these bonds is limited by section 481 of the General Statutes of 1901, which reads:
“Before any bonds shall be issued, as herein provided, the same shall be ordered by a vote of the qualified electors of such county, city, or township.”
No steps were taken to issue bonds by Rossville township, and therefore this statute can not apply. The authority is claimed to exist in section 7826 of the General Statutes of 1901, which reads:
“The said board shall have charge of the roads and bridges of their respective townships, and it shall be their duty to keep the same in repair, and to improve them so far as practicable. Whenever the available means at their disposal will permit, they shall construct permanent roads, beginning where most needed. The work on roads shall be done timely, and in accordance with the best-known methods of road-making — by proper grading, and thorough drainage by tile or otherwise, as may be expedient, or by the application of gravel, rock, or other material.”
We are unable to find any authority in this statute which justifies the act herein complained of. The only expenditures therein contemplated are such as are incidental to ordinary road work, such as making culverts, building, small bridges, digging ditches for drainage purposes, making and repairing necessary grades, and other work usually done by road-overseers. Such improvements do not require a very large expenditure, and the aggregate cost of them could be met by the ordinary levy of road taxes. The construction of a bridge across such a stream as the Kansas river, either by the township alone or jointly, with others, is entirely beyond the scope of this law. If this township board could bind the township for $1200, why not for $12,000?
It is true that the bridge is of great convenience to the people of Rossville township, and it seems fair and reasonable that they should contribute to its construe tion; but this is not sufficient to compel them to do so. Taxpayers are not bound by the contracts of officers who assume to act for them without authority. People who build public bridges worth $15,000, which they know must be paid for with taxes levied, in part at least, upon the unwilling taxpayer, should not deal with public officials concerning matters for which they do not possess full legal authority to act. If this were a small bridge or other improvement which would come within the contemplation of the statute in question, like the bridge involved in the case of Coal Co. v. Sugar Loaf Township, 64 Kan. 163, 67 Pac. 630, this court would be glad to apply the law as was done in that case. We think, however, that the rule there applied should not be extended. It has long been the policy of this state to keep the taxing power within reasonable limitations, and to require public officers having power to create public indebtedness to act within the limits of the powers conferred upon them; and, for all important public expenditures, it has been customary to submit the question to a vote of the people who will be expected to pay the debt. To uphold the subscription here involved would confer upon township boards powers not given or contemplated by the law — powers which would enable them to involve their constituents in liabilities for road and bridge purposes practically without limit. This can not be done. Under the rule here adopted township boards have full power to carry out the purposes of the statute, while the taxpayers are protected from expenditures' which are not reasonably within the scope of its provisions. The question is not without difficulty, but this seems to us to be the best solution that can be given to it.
The judgment of the district'court is reversed, with direction to sustain the demurrer and proceed with the case in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Smith, J.:
The only proposition of law involved in the case is whether a new consideration is requisite to sustain a deed given by one, after he has attained his majority, to the same grantee, or, at the latter’s request, to another grantee, in ratification of a conveyance of the same property made during minority. The authorities are so uniform that such new consideration is not requisite that a discussion thereof would not tend to illuminate the question. (See 22 Cyc. 545, 603; 18 Am. St. Rep. 706, note, and cases there cited.)
The judgment of the district court is affirmed. | [
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■ The opinion of the court was delivered by
Porter, J.:
This action was brought by the father of M. J. Lacy to recover damages for the death of his son. The jury returned a verdict in favor of the plaintiff for $1995, and judgment was rendered thereon, which the railway company seeks to reverse.
The facts which are not disputed are that on the evening of March 30, 1904, the deceased, who was an experienced railroad man, requested a conductor in charge of a through freight-train which was about to leave Dalhart, Tex., for Liberal, Kan., to allow him to ride free of charge from Dalhart to Liberal. The conductor refused his request, and told him that the rules of the company did not permit any one to be carried on that train. The deceased then asked the conductor if he did not recognize and carry free of charge members of the brotherhood of railway trainmen. The conductor told him that if one of the brakemen who belonged to that order would vouch for his membership therein he would carry him. On the assurance of one of the brakemen that Lacy was a member of the order the conductor allowed him to enter the caboose.
The train upon which the deceased was riding was the first of two freight-trains running under manifold copies of the same orders from Dalhart to Liberal, and beyond. The rear train followed about ten minutes behind the forward train. The trains had common meeting points during the night, and the crews of both expected to take breakfast at Liberal. The first train reached Liberal at eleven minutes past seven o’clock in the morning, which was after daylight. It stopped on the main track, and the crew went to breakfast. While this train was standing on the main track at the station the rear train ran into it, demolished the caboose in which Lacy was asleep, and he received injuries which resulted in his death.
The petition alleged that Lacy’s death was directly ■caused by the gross and wanton negligence and reckless conduct of the employees of the defendant in •charge of the two trains. The negligence alleged is: (1) That the crew in charge of the forward train failed to send back a flagman to warn the rear train; (2) that the engineer of the rear train failed to give warning of the approach of his train, and recklessly and wantonly ran his engine into the caboose.
The errors complained of are the refusal to sustain .a demurrer to the plaintiff’s evidence, the refusal to give a peremptory instruction directing a verdict in favor of the defendant on the special findings, and the ■denial of the motion for a new trial.
The jury in answer to special questions found that Lacy had been a brakeman and a conductor on other roads for a number of years previous, and that he requested the conductor to carry him free of charge; that he neither paid nor offered to pay fare, nor presented a ticket, pass or permit, and intended to ride without fhe payment of fare; that the train was one on which passengers were not carried, under the rules and regulations of the company; that the conductor had no right to carry him free of charge or on the train in question; that Lacy had no reasonable cause to believe that the conductor had such authority; and that he had no right to be on the train.
The railway company claims that the deceased was a trespasser. On the other hand, it is claimed that he was on the train by the permission of the conductor, and was therefore a licensee. For the purpose of this case, at least, the distinction is unimportant, for there was no claim in the petition or on the trial that the relation of carrier and passenger existed between the railway company and. the deceased. The action was brought, and the trial proceeded, upon the theory that the railway company could only be liable for such injuries as were occasioned by the reckless or wanton negligence of its servants. The jury were instructed that no liability was claimed in consequence of common, or ordinary, negligence. As observed, the jury made a finding that the deceased had no right to be upon the train. The instructions told the jury that, if they so found, the railway company owed him no duty except to abstain from recklessly or wantonly injuring him. The vital question in the case, therefore, is whether there is sufficient evidence to justify a recovery on the ground that Lacy’s death was caused by the reckless or wanton negligence of the employees of defendant.
The first claim of negligence — the failure of the employees of the forward train to send back a flagman to warn the second train — is entirely eliminated by the special findings. The jury found, upon evidence about • which there can be no dispute, that it was not the custom of trains stopping at Liberal in the daytime to guard the rear by sending back a flagman, for the reason that the track from the west is straight for a mile and three-quarters, and slightly up grade, and that a train standing at the station could be seen by the engineer on the second train, under the circumstances and conditions existing at the time of the accident, for a distance of one and one-half or two miles. They also found that the engineer of the second train saw the first train at a distance of a mile and a half, and, in addition, that the engineer and crew of the second train knew that the first train would stop on the main track at Liberal. So that, if the jury had based the general verdict on the ground of negligence of the crew of the first train in failing to send back a flagman, it could not be permitted to stand. Whether negligence or not, the failure to send back a flagman could not have been the proximate cause of the accident. The only object of sending back a flagman would have been to warn the second train of that which the crew of the second train had knowledge long before they could have seen a flagman. The situation is like that in Railway Co. v. Wheeler (on rehearing), 70 Kan. 760, 83 Pac. 27, where the negligence alleged was in failing to give the statutory signals. The jury in that case made a finding that the person in charge of the injured cattle saw the approaching train when it was half a mile distant from him. It was held that the failure to sound the whistle eighty rods from the crossing could not have been the proximate cause of the injury.
The second ground of negligence alleged is that the engineer of the rear train failed to warn the trainmen of the forward train of the approach of his train, and that he recklessly and wantonly ran his engine into the caboose. No affirmative testimony was offered by the plaintiff as to what the engineer did or failed to do in the management of his train, except that a witness testified that when the danger signal was sounded the train was about 300 yards from the caboose.’ Testimony was also offered showing the force of the collision, and that the train, was running twenty-five miles an hour when it struck the caboose. Proof was also offered that it was the duty of the engineer in approaching a station to have his train under control so he could stop it anywhere. Plaintiff’s case rests, therefore, largely upon the natural inference to be drawn from the fact of. a collision in the daytime on a straight track, where the engineer of the rear train had the forward train in plain view for more than a mile and a half. The fact that a collision occurred is. not prima facie evidence that it was caused wantonly. There must be some fact or circumstance in evidence from which the natural or reasonable inference arises, that it was caused by the reckless or wanton conduct of some one. While negligence may be inferred from other facts in evidence, the inference must be a natural and reasonable one. (A. T. & S. F. Rld. Co. v. Brassfield, 51 Kan. 167, 32 Pac. 814.) In Railway Co. v.. Morris, 64 Kan. 411, 67 Pac. 837, Mr. Justice Smith, speaking for the court, said:
“While questions of fact are for the jury to decide, yet a conclusion reached ought to be founded on evidence which fairly tends to support the finding. When a jury finds negligence to exist because of a probability that some one was lacking in care, such probability must be based upon rational grounds and have some support in the evidence introduced in the case.” (Page 415.)
In the case at bar some weight must naturally be given to the presumption that out of regard for his own safety and that of the other persons on the train, as well as for the property of the railway company, the engineer acted neither wilfully nor in utter disregard of the natural consequences of his acts. On the part of the defendant the engineer of the rear train testified substantially as follows: He saw the forward train as he came up over the hill into Liberal; when he first saw it it was standing on the main track, just where he expected to find it, about one and one-half miles away from where he then was; he was running about twenty-five miles an hour; as soon as he got over the hill, and when about a mile or a mile and a quarter from the rear end of the forward train, he applied the air for the purpose of setting the brakes; this was about the distance from Liberal where the air was usually applied in order to stop at that place; the air did not hold and had no effect in slowing up the train; immediately thereafter he made a second application of the air, which did not have any effect on stopping or slowing up the train; he then applied the emergency brake, whistled for brakes, and signaled the forward train by two short blasts of the whistle; in the meantime he set the straight-air brake on the engine, and that took hold; he then reversed the engine and gave it steam, the effect of which was to make the engine work directly against itself; he stayed on the engine until it got within about three car-lengths of the caboose on the forward train, and he saw that he could not stop it; at the time in question there was nothing on his train — no apparatus of any kind — which could have been used for the purpose of retarding the speed of the train that he did not use; he did not know why the air-brakes failed to work; if they had worked in the usual and ordinary manner his train would have stopped before reaching the rear, of the forward train; the brakes had been working first class during the night and from the time he left Dalhart until the time he made the application for the purpose of stopping at Liberal.
Among the special findings of the jury is the following:
“(65) Ques. Did the employees of the defendant railway company purposely cause the collision ? Ans. Not purposely, but through negligence of the employees.”
The term “negligence,” without any qualification, usually means ordinary negligence. (K. P. Rly. Co. v. Pointer, 14 Kan. 37.) It was said in K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730: “In popular use, and by our decisions, ‘recklessness’ and ‘wantonness’ are stronger terms than mere, or ordinary, negligence.” (Page 542.) Again, in the recent case of Railway Co. v. Walters, ante, p. 39, Mr. Justice Burch, speaking for the court, said:
“Reckless disregard of security, wantonness or other equivalent of bad faith and the wilful or malicious disposition to injure all involve something else than negligence.” (Page 41.)
It is insisted that the language of the jury in answer to the special question should be strictly interpreted as a finding that there was neither wilful nor wanton negligence, but only ordinary negligence, for which, in this case, the railway company can not be held liable. On the other hand, the general verdict can only be explained on the theory that the jury found that the death of the deceased was occasioned by the wanton negligence of the engineer, and meant to find by the foregoing answer that there was no purpose or intent to inflict the injury.
It is not contended that there was any evidence of wilful negligence on the part of the engineer. To constitute wilful negligence there must be a design, purpose or intent to do wrong or to cause the injury. True, the courts and text-writers quite generally agree that recklessness amounting to an utter disregard of consequences will be held to supply the place of specific intent. (Cincinnati, Indianapolis, St. Louis & Chicago R. R. Co. v. Cooper, Adm’r, 120 Ind. 469, 22 N. E. 340, 6 L. R. A. 241, 16 Am. St. Rep. 334; Louisville & Nashville Railroad Company v. Filbern’s adm’x, 69 Ky. 574, 99 Am. Dec. 690; Beach, Cont. Neg., 3d ed., 53.) And a reckless indifference to or disregard of the natural or probable consequences of doing or omitting to do an act, which is generally termed wanton negligence, carries with it the same liability as an injury inflicted by wilfulness. We deem it unnecessary to consider here the nice distinctions sometimes drawn-by courts in respect of wilful negligence and wanton negligence. It is sufficient in our opinion that there was in this case an absence of affirmative or other testimony tending to show that the injury was occasioned by the wanton negligence of the engineer or that it was the result of that conscious disregard of, or reckless indifference to, the probable or natural consequences of his conduct which is usually termed wantonness.
In our opinion the trial court should have given a peremptory instruction to find for the defendant. Plaintiff in error urges that judgment should be directed in its favor, but, as observed, the special findings, construed with the general verdict, amount to a finding that the death of the deceased was caused by the reckless and wanton negligence of the engineer. While we hold that the facts in evidence are not sufficient to justify such finding or to support the verdict, it is apparent that judgment can not be directed. The judgment is therefore reversed, and the cause remanded for another trial. | [
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The opinion of the court was delivered by
Mason, J.:
Eackliffe & Gibson constructed a sewer for the city of Atchison under a written contract, one of the provisions of which was that for “rock excavation” they were to receive extra compensation at the rate of $2.40 per cubic yard. They were paid in full except with respect to a claim for 654 yards of rock excavation, which the city denied, contending that the material excavated was not rock, and that in any event the contract made the city engineer the judge of that question and he had so decided. They brought action for the amount in controversy, pleading in two counts, the first declaring in terms upon the contract, the second alleging that in the performance of the work they encountered strata of “rock and solid material of rock substance” which could be removed only by drilling and blasting and was therefore to be “classified . . . as rock excavation,” the reasonable charge for which was $2.40 per cubic yard. They obtained judgment under the second count, upon the basis of $1.50 per cubic yard for the excavation in question, that being the rate of compensation to which the jury, in response to a special interrogatory, found they were entitled. The city prosecutes error, and the contractors file a cross-petition in error claiming that the judgment should be increased so as to allow them the full contract price of $2.40 per cubic yard.
The vital question of law involved is whether by the language of the contract the city engineer was made the judge of the character of the material excavated. The pleadings may be regarded as presenting a claim on the part of the city that the engineer had decided that the material in question was not rock, and a contention on the part of the contractors that the engineer acted in bad faith in that regard. The defendant did not plead in so many words that the engineer had made such a decision, and the plaintiffs did not plead in set phrase that he acted in bad faith in so doing. But the petition alleged that he wrongfully, capriciously, without reason, and in collusion with the defendant, refused to measure the rock, and the answer denied this allegation and added that when the engineer was requested to make such measurement “he fully and frankly discussed with said plaintiffs the condition of said pretended rock excavation and called the attention of said plaintiffs to the fact that the same was not in any sense ‘rock excavation.’ ”
The evidence showed a marked difference of opinion as to whether or not the material in controversy was properly to be regarded as rock. Witnesses for the defendant called it “shale,” “soft shale,” “sand shale,” and said it was not rock, and that it could readily be handled by pick and shovel. One of the plaintiffs testified that he understood the term “rock” to mean “any hard substance that does not yield easily, being picked or shoveled or removed easily from its original position,” adding:
“In classifying excavating material it is usually classified as rock and earth, and rock itself is classified as-shale and sandstone or loose rock; different classification of rock itself. ... If there were but two classifications, rock and earth, rock would cover, I should judge, quite a field; it would cover shale, sandstone— several other classifications.”
The city engineer in the course of his examination, said:
“I was called for the purpose of classifying or describing the material they were excavating; to determine the character of this material, whether or not it was to be measured and paid for as rock, and I determined it should not be so classified, and so informed plaintiffs’ foreman.”
The court gave this instruction:
“You are instructed that sandstone and shale (shale being sometimes called soapstone) are rock; and if you find and believe from the evidence in the case that plaintiffs in the work of constructing the South Atchison sewer encountered what is designated sandstone and shale in place, that is, in their natural state or position, and in large bodies, that in the performance of their contract with defendant city, in the progress of their work under such contract, the only' practicable way of excavating such sandstone and shale, in order that such work might progress expeditiously and economically, so that it might be completed within the time specified in the contract, was by drilling and blasting with powder and dynamite, owing to the nature and density of the substance, and that plaintiffs stripped the overlying earth from the surface and demanded that the city engineer measure the same, and that the city engineer wrongfully, arbitrarily, capriciously, or by reason of a misconception of the terms of the contract, refused to measure, and the defendant refused to pay for the same, and that plaintiffs nevertheless completed said sewer, and the defendant city afterwards accepted and used the same, then and in such event plaintiffs are entitled to recover from the defendant on the second count of their petition whatever amount you may believe from the evidence such excavation was reasonably worth, not exceeding $2.40 per cubic yard, for the number of yards so excavated by them.”
In view of the context, the nature of the controversy, and the evidence, it is manifest that the phrase used in describing a possible ground of the engineer’s decision —“by reason of a misconception of the terms of the contract” — had reference to a misconception as to what was meant by the word “rock” as used in the contract. At all events it was open to that construction, and no other form of misconception was suggested to the jury, If by the contract the engineer was in fact authorized to settle any dispute as to whether material excavated should be classified as rock, his decision made in good faith would be final, and to permit the jury to disregard it upon the ground that he misunderstood the contract in that respect or had a wrong conception of what was meant by the word “rock” as there used would be to allow them to substitute their judgment for his upon the very matter entrusted to his determination. The instruction was therefore erroneous, if this power was actually lodged with the city engineer. The portions of the contract material for the determination of this, question are as follow:
“Eock excavation will consist of rock in place. The contractor will strip off the earth overlying same, so as to expose the surface of the rock, upon which the engineer will take his levels, before the rock is excavated. ... No extra allowance will be made for any class or condition of material excavated except for rock excavation.”
“The engineer is to make all measurements, and to decide as to the amount or quality of the several kinds of work, and as to the quality of all materials. . . . To prevent all disputes and litigation, it is further agreed by the parties hereto, that the engineer shall, in all cases, determine the amount or quality of the •several kinds of work which are to be paid for under this contract, and he shall decide all questions which .may arise relative to the execution of this contract on the part of the contractor, and his estimates and deci,'sions shall be final and conclusive, subject to the approval of the mayor and city council.”
“Whenever the word ‘engineer’ is used, it shall be held to mean the city engineer, or his authorized assistant.”
Standing alone, the provision that the engineer was to “decide as to the . . . quality of the several "kinds of work, and as to the quality of all materials,” might not be sufficient to empower him to pass upon what was to be considered rock; the word “materials” in the phrase quoted might under some circumstances be deemed to refer solely to the materials furnished by the contractors. But in view of the additional pro vision couched in the sweeping language “he shall decide all questions which may arise relative to the execution of this contract on the part of the contractor, and his estimates and decisions shall be final and conclusive, subject to the approval of the mayor and city council,” it must be held that the determination of what material was to be classified as rock was committed to his judgment. Apart from the light shed upon the matter by the conflicting evidence, it is clear that the material excavated might grade insensibly from friable soil to solid rock. As suggested in the testimony of one of the plaintiffs, the contract might well have adopted a more detailed classification. But when the parties elected to recognize no character of formation intermediate between earth and rock they necessarily created a situation which called for an arbitrator to settle the inevitable dispute as to just where the dividing-line should be drawn. This duty was entrusted to the engineer, and his decision that the material in controversy was not rock, if made in good faith, was conclusive.
The plaintiffs rely largely upon Williams v. The Chicago, S. F. & C. Ry. Co., 112 Mo. 463, 20 S. W. 631, 34 Am. St. Rep. 403, where a contract very similar to that here involved was passed upon, the authorities sustaining such contracts as agreements for arbitration being there collected. (See, also, Mundy v. Louisville & N. R. Co., 67 Fed. 633, 14 C. C. A. 583, and United States v. Gleason, 175 U. S. 588, 602, 20 Sup. Ct. 288, 44 L. Ed. 284.) In the Missouri case it was held that the plaintiffs were entitled to show, if they could, that the engineer misconstrued the contract and for that reason had not measured the work in accordance therewith. But the question arose in a very different form from that here presented. The specifications provided:
“Loose rock shall comprise: First, shale of [or] soapstone lying in its original or stratified position, coarse boulders in gravel, cemented gravel, hard-pan, or any other material requiring the use of pick or bar, or which can not be plowed with a strong ten-inch grading plow well handled, behind a good six-mule or horse team; second, detached rock or boulders in masses exceeding one and one-half cubic feet and less than one cubic yard.
“Solid rock shall comprise: First, rock in solid beds or masses in its original or stratified position; second, boulders or detached masses of roek exceeding one cubic yard, and all other material which in the judgment of the engineer can not be removed without being blasted.” (Page 472.)
The contractors contended that the engineer refused to classify certain material as loose rock, although he admitted it to be hard-pan, because it could be plowed with a ten-inch grading plow behind a six-horse team. In other words, the dispute was as to the proper construction of the contract as a matter of grammar or the approved use of language — a pure question of law. The engineer interpreted the words “loose rock shall comprise . . . hard-pan, or any other material . . . which can not be plowed,” to mean that hard-pan should not be regarded as loose rock unless it was the kind of hard-pan that could not be plowed. He construed the phrase “which can not be plowed” as qualifying “hard-pan.” The court very properly held the true meaning to be that all hard-pan was to be classified as loose rock, and that the words “which can not be plowed” related only to the “other material” than the substances specifically named. The decision, therefore, was that it was competent for the contractors to impeach the finding of the engineer by showing that it was influenced by a mistake occasioned, not by his misinterpretation of an engineering term or the name of a material, but by his failure to apply a correct rule of syntax. The Missouri court recognized this distinction, saying:
“It was the province of the engineer to say what was hard-pan, and how much hard-pan there was excavated, but he was bound to classify hard-pan as loose rock, and had no right to decline to so grade it because it could be moved with a ten-inch plow and six-mule team.” (112 Mo. 494.)
The case of Lewis v. Chicago, S. F. & C. Ry. Co., 49 Fed. 708, arose upon a contract precisely like that passed upon in the Williams case. The' court said:
“If it appears that the engineer in charge put a wrong construction on any provision of the contract the court will correct any substantial errors resulting from such mistake, for the reason that the parties did not make the decision of the engineer as to the proper interpretation of the contract final and conclusive. It is the province of the court to construe the agreement. Bridge Co. v. City of St. Louis, 43 Fed. Rep. 768, 10 L. R. A. 826.
“But in determining the kind of material found in the several cuts the engineers were called upon to exercise their judgment. That was a matter, as the contract in substance recites, which involved the exercise of special skill and attention as the work progressed, and for that reason the parties selected an umpire, by whose judgment they agreed to be bound. (Ranger v. The Great Western Railway Company, 1 Ry. & Can. Cas. [Eng.] 1; 13 Sim. [Eng.] *368.) The court will not undertake to revise the decision of the engineer on questions of that character if it appears that he acted in good faith. The utmost it can do is to correct errors of classification that may have resulted from an erroneous interpretation of the contract.” (Page 710.)
The case of Burke v. Mayor, 7 N. Y. Supr. Ct., App. Div. 128, 40 N. Y. Supp. 81, presents another instance in which it was held proper to submit to the jury the question whether the action of the engineer had arisen from a misconstruction of the contract. There, however, the dispute was whether certain work performed by the contractor was within the terms of the contract, which made the engineer’s report “conclusive as to the amount of materials furnished and work done.” (Page 130.) The court said:
“It is not seriously claimed that the contractor did not do the work for which compensation is sought in this action. But it is claimed that it was without the terms of the contract; and it is upon this theory that the engineer excluded the items representing such work in his final certificate. But if it should be found upon an examination of this contract that this work or any part of it was included within the terms of the contract, it seems to us that it would be a harsh rule to hold that because the engineer had acted upon a mistaken view of the law the contractor would be remediless. We do not think that any of the cases cited goes as far as that. It is undoubtedly true that where there is any dispute in regard to the work or its character the certificate is final, if honestly given. But where a contract calls for the performance of work which the contractor has done, and the engineer, upon an erroneous construction of the contract, has excluded it from his final certificate, it is clear that the contractor has a right to recover, notwithstanding the provisions of the contract in regard to the final certificate.” (Page 130.)
The distinction between a misconception of the contract with respect to a question intended to be left to the engineer and one relating to a matter not of that character is plain. It is analogous to that recognized where the action of arbitrators is influenced by a mistake of law. Such a mistake is a ground of setting aside the award, where by the terms of the submission, whether contractual or statutory, the arbitrators are required to determine the rights of the parties according to the law, but not otherwise. (3 Cyc. 740.)
In G., H. & S. A. Ry. Co. v. Henry & Dilley, 65 Tex. 685, the court held that under a contract providing that the engineer should determine the quantity, of work done his determination might be set aside if it were made by a method not authorized by the contract, saying: “If the contract provided that the appellees [the contractors] should be paid according to embankment measure, he [the engineer] would have no right to say that they should be paid by excavation measurement.” (Page 692.) The decision was based upon the ground that while the meaning of the contract in this respect might have been submitted to the engineer it was not so submitted, and therefore the true construction was for the determination of the court. The distinction be tween that case and the one at bar is that, according tc the conclusion already announced, the construction off the contract in the only respect in which a possible misconstruction is suggested was one of the matters covered by the submission.
In Drhew v. Altoona, 121 Pa. St. 401, 15 Atl. 636, the contract fixed the price for earth excavation at. thirty-five cents per cubic yard, and for rock excavation at seventy-five cents. The engineer undertook to-make a new classification, and in his estimate he described a part of the work as “loose rock excavation,”' for which he allowed fifty cents per cubic yard, allowing-seventy-five cents only for what he termed “solid rock excavation.” In that case what the engineer really decided was that the material under consideration was. rock. He had of course no authority to vary the rate of compensation which the parties had agreed upon.
The error in submitting to the jury the question whether the engineer misconstrued the contract was especially prejudicial for the reason that we are unable' to discover any evidence tending to show the existence of any other ground for setting aside his finding. If' the jury had found upon sufficient evidence that the engineer acted in bad faith, and that his decision should, therefore be disregarded, they would then have been required to determine for themselves as an independent, fact whether the work on which the action was founded was rock excavation. Therefore it was appropriate for' the court, if there was any evidence of such bad faith, to instruct them upon the force of the word “rock,” as: used in the contract, for their guidance in making that investigation, if it should become necessary. But any such instruction should have been limited to that purpose. Granting the instruction that shale or soapstone-was rock to have been otherwise correct, it was likely to be understood as a rule binding upon the engineer as well as upon the jury, and was therefore misleading. The instruction relating to the test depending upon the- use of drills and blasting-powder was open to the same objection.
It is not necessary to pass upon the other specifications of error made by the city, for they relate to matters which may not again arise in the same form. The petition and answer might with advantage express more definitely the precise contentions made, but neither is fatally defective. It remains, however, to consider the cross-petition in error.
The second count — the quantum meruit — was evidently inserted by the plaintiffs in their petition upon the theory that as the contract provided for payment according to measurements made by the engineer, and as the engineer had not measured the excavation in controversy, they might not be able to recover upon the very terms of the instrument. The situation, however, was not that of one party preventing the full performance of a contract, thereby giving the other party the option to sue either for damages for the breach or for the reasonable value of the services actually rendered. (9 Cyc. 688.) Here there was full performance on the part of the plaintiffs. If they were in fact entitled to pay for the material in dispute as rock, the fact that the engineer had not measured it could not force them to abandon the contract or to accept payment at less than the agreed price per cubic yard. The only purpose of the measurement was to ascertain the amount of the material. If the engineer wrongfully refused to measure it the plaintiffs were at liberty to establish its amount in some other manner, and to rely upon the contract as fixing the basis of their compensation for removing it. (Crane Elevator Co. v. Clark, 80 Fed. 705, 26 C. C. A. 100; City of Elizabeth v. Fitzgerald, 114 Fed. 547, 52 C. C. A. 321; Wyman v. Hooker, 2 Cal. App. 36, 83 Pac. 79; Chism v. Schipper, 51 N. J. L. 1, 16 Atl. 316, 2 L. R. A. 544, 14 Am. St. Rep. 668.)
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The opinion of the court was delivered by
Mason, J.:
Jefferson D. Sewell, a messenger of the Wells-Fargo Express Company, while engaged in that service was killed in a wreck on the road of the Atchison, Topeka & Santa Fe Railway Company. His widow, Emma M. Sewell, brought an action against the railway company, alleging that its negligence caused the death. The case was submitted upon an agreed statement of facts, from which it appeared that the express company and the railway company had entered into a contract by which the former assumed all risk of injury to its employees and agreed to hold the latter harmless from all loss, cost and damage arising therefrom, and that Sewell had executed a contract with the express company which included a provision that neither it nor any railway company on whose line he might travel in the course of his employment should under any circumstances be liable for any injury occurring to him while so traveling. The trial court held that the defendant was not liable and gave judgment accordingly, from which the plaintiff prosecutes error.
Two questions are presented: (1) Were the contracts referred to effective to relieve the railway company from liability to Sewell for any injury he received occasioned by the negligence of its agents while he was engaged in his work upon one of its trains? (2) If so, did this waiver of any claim upon his own behalf take away the right of his heirs to recover in the event of his death as the result of such an injury?
It was of course competent for the messenger, as between himself and the express company, to assume any risks of his employment resulting from the negligence of the railway company. The question involvéd is whether he could contract away his right to compensation for the results of such negligence, as between himself and the railway company, with which he was brought into privity through its contract for indemnity with the express company. It has often been stated as a general principle that no contract will relieve a common carrier from liability for the consequences of the negligence of its agents to one who is a passenger for compensation. (6 Cyc. 578.) There is abundance of authority that an express messenger is a passenger (6 Cyc. 543, note 47), and as he is present upon the train in pursuance of an agreement from which the railway company receives a financial benefit he is essentially a passenger for hire. (Note, 61 Am. St. Rep. 98.) This consideration is sometimes spoken of as controlling upon the question of the power to waive claims for damages caused by negligence; but while language to that effect may be appropriate to some situations, it is ' not so to that here presented. The messenger is a passenger in the sense that he is not a mere licensee, a trespasser, nor an employee of the railroad company, but one who, through his employer, the express company, has bargained for the privilege of riding upon the train. He is not a passenger in the sense that his primary ob ject in so doing was to be conveyed from one point to another. The definitions that have been given of the word “passenger” are nearly as numerous as the different occasions that have arisen to state its meaning. (See 6 Words & Ph. Jud. Def. 5218.) It is not necessary that a definition of universal application should be framed. The important question is whether one in the situation of Sewell could make a .valid contract releasing the railway company from liability for the results of its ordinary negligence. Or, to state it in the form of a definition, whether he was a passenger within the meaning of the rule that a passenger can not make such a contract.
The most complete discussion of the very matter here involved to be found in the books is that supporting the decision in Baltimore & Ohio &c. Railway v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, where a conclusion is reached in accordance with the judgment of the trial court in this case. If the judgment is to be affirmed it must be upon the theory adopted by the federal supreme court and for the reasons adduced in the opinion written by Mr. Justice Shiras, from which Mr. Justice Harlan alone dissented. In that opinion the question whether the messenger is properly to be described as a passenger is not treated as necessarily decisive. The argument may be thus summarized: Ordinarily persons may make such contracts as they see fit and the courts are required to give them effect. A common carrier, however, in virtue of its character as such, is under partial disability in this regard. The law imposes upon it certain obligations, of which it can devest itself by special contract only when such contract is one which the courts will regard as fair under all the circumstances. Ordinarily it is not fair that a common carrier should be permitted to absolve itself by contract from the consequences of its own negligence in the carriage of either goods or of passengers; and so, ordinarily, such a contract will be held void. But the reason why such a contract is held unconscionable, and therefore unenforceable, is that the common carrier when acting in that capacity does not deal on equal footing with its customer. He has the right to require it to serve him, and to do so upon terms of equality with other customers. He really invokes this right whenever
I he makes a shipment of goods or offers himself as a passenger in the usual course of business, notwithstanding he may be granted some nominal or even substantial concession, such as a reduction from the schedule charge. He is in no position to drive a bargain. He' requires and must have the services of the carrier. He must take them upon such terms as it offers. And if in such circumstances he assents that he will bear his own risk of loss or injury resulting from its negligence the agreement will be regarded as in effect extorted from him and ineffectual to bind him. But in relation to the carriage of express matter railroad companies do not act as in ordinary eases. As to such traffic the services they perform are not done as public carriers but under a private contract. They are not bound to undertake such business at all. They do not hold themselves out to the public as engaged in that business. And while in fact they do generally or universally undertake it, they do so in virtue of special contracts, which are entered into by them with only a few organizations throughout the entire country, and ordinarily with but one of them over the same route. A contract made between a railway company and an express company under such circumstances requires no supervision by the courts, and their interference with it would be unjustifiable. The shipper is as able as the carrier to protect its own interests and to resist the imposition of any inequitable conditions. The agreement therefore must be upheld. The express company, having effected a valid assumption of all risks of injury to its employees, is under no disability to transfer such risk to them as a part of the agreement of employment, for the negligence contracted against is not its own but that of the railway company.
That in- the foregoing synopsis the grounds upon which courts may set aside contracts by which common carriers seek to limit their liability as such are correctly stated appears from the discussion in Railroad Company v. Lockwood, 84 U. S. 357, 21 L. Ed. 627, where it< was held that a drover accompanying stock in shipment might recover for injuries to himself resulting from the railway company’s negligence, notwithstanding his execution of a contract expressly waiving his right to do so in consideration of certain privileges said to have been given him in addition to those .ordinarily granted to shippers. In the opinion it was said:
“The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He can not afford to higgle or stand out and seek redress in. the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one- or the other contains. In most cases, he has no alternative but to do this, or abandon his business. In the present case, for example, the freight-agent of the company testified that though they made forty or fifty contracts every week like that under consideration, and had carried on the business for years, no other arrangement than this was ever made with any drover. And the reason is obvious enough — if they did not accept this, they must pay tariff rates . . . being a difference of three to one. Of course no drover could afford to pay such tariff rates. This fact is adverted to for the purpose of illustrating how completely in the power of the railroad companies parties are; and how necessary it is to stand firmly by those principles of law by which the public interests are protected.
“If the -customer had any real freedom of choice, if he had a reasonable and practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private.affair, and no'concern of the public. But the condition of things is entirely different, and especially so under the modified arrange ments which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the public is compelled to accept.” (Page 379.)
In contrast with the attitude in which these contracting parties stand to each other the relations between the express agent and the railroad company were thus stated in the Voigt case:
“It is evident that, by these agreements, there was created a very different relation between Voigt and the railway company than the usual one between passengers and railroad companies. Here there was no stress brought to bear on Voigt as a passenger desiring transportation from one point to another on the railroad. His occupation of the car, specially adapted to the uses of the express company, was not in pursuance of any contract directly between him and the railroad company, but was an incident of his permanent employment by the express company. He was on the train, not by virtue of any personal contract right, but because of a contract between the companies for the exclusive use of a car. His contract to relieve the companies from any liability to him, or to each other, for injuries he might receive in the course of his employment, was deliberately entered into as a condition of securing his position as a messenger. His position does not resemble the one in consideration in the Lockwood and similar cases, where the dispensation from liability for injuries was made a condition of a transportation which the passenger had a right to demand, and which the railroad companies were under a legal duty to furnish. Doubtless, had Voigt only desired the method of transportation afforded the ordinary passenger, he would have been entitled to the rule established for the benefit of such a passenger. But this he did not desire. He was not asking to be carried from, Cincinnati to St. Louis, but was occupying the express-car as part of his regular employment, and as provided in a contract which, as we have seen, the railroad company was under no local compulsion to enter into.” (Baltimore & Ohio &c. Railway v. Voigt, 176 U. S. 498, 512.)
The vital question is whether in the eye of the law an express company really stands upon any different footing in this respect from any other shipper. That in any particular case it happens to be a powerful corporation can not affect the matter. An individual who had bargained for the right to carry merchandise for his neighbors upon periodical trips to and fro between his home and some commercial center would doubtless be subject to the same rule. Whether a railway company acts as a common carrier in permitting express companies to make use of its facilities for transportation was elaborately considered in the Express Cases, 117 U. S. 1, 6 Sup. Ct. 542, 628, 20 L. Ed. 791, and a negative answer was there given. The conclusion reached by the court, and concurred in by all the justices but three (Justices Miller and Field dissenting and Justice Matthews not sitting), was that a railway company is under no duty to handle the business of any express company, and that by undertaking to do so for one company it does not incur an obligation to offer equal privileges to others. This decision has been regarded as settling the question, and recent adjudica tions are generally if not univei’sally in harmony with it (6 Cyc. 374, par. 5; 12 A. & E. Encycl. of L. 543, note 2.) But the earlier cases showed a tendency to the contrary. (See the second paragraph of the note last cited, and especially New England Express Company v. Maine Central Railroad Company, 52 N. H. 430, 13 Am. Rep. 72, cases which, although affected by local statutes, were avowedly based upon common-law principles.)
However desirable it may be in theory to insist upon a railway company’s offering no facility to one person or corporation that it will not extend upon equal terms to any other, as a practical matter few concerns are engaged in the express business, and the number is not capable of any large increase, for in the nature of things it must be exclusive or substantially so as to each line of railroad. If under the law any applicant has a right to the same opportunity at the hands of a railway company to conduct an express business upon its lines that is granted to any other, it would seem that anything like a general exercise of the right would inevitably result in the. carrier’s being compelled either to abandon the business altogether or to take it absolutely into its own control. We acquiesce in the distinction made between the situation of the individual shipper and that of an express company, between the attitude toward the railroad company of the ordinary passenger and that of an express messenger, and, as a necessary sequence, in the conclusion that the contract in question was valid and effectually waived the right of Sewell to look to the railway company for compensation for any injury he might suffer through the negligence of its agents. This conclusion is in accordance with the weight of authority. (6 Cyc. 579; 2 Hutch. Car., 3d ed., § 1018.) In the last-named work, at the place indicated, it is said:
“A contract between a railroad company and an express company that express messengers shall assume the risk of all accidents or injuries they may sustain in the course of their employment is not void as unreasonable or against public policy. And, if an express messenger actually consents to be bound by the terms of such a contract, there can be no doubt that the contract may be pleaded in bar of any action brought by the express messenger against the railroad company for injuries received in the course of his employment.”
And in volume 4 of the second edition of Elliott on Railroads, section 1645, it is said:
“The adjudged cases hold that express messengers are passengers, and while it may be true that express messengers are in a limited sense passengers, yet we think they can not be regarded as passengers in the broad sense in which persons who pay fare as ordinary travelers journeying from place to place are passengers, for there is a duty to carry such persons, but according to the decisions in the Express Cases, a public carrier is not under a duty to carry for express companies. A railroad company may, as we have elsewhere shown, make special contracts with express companies and may grant to one express company exclusive privileges. As a railroad company is not bound as a public carrier to carry the goods or employees of an express company, it may, upon the principle we have stated, make a valid contract exempting it from liability for injuries to express messengers.”
The- cases are so thoroughly reviewed in the opinion in the Voigt case as to make unnecessary any reference to those already decided when that was written. Additional cases, including Peterson v. C. & N. W. R. Co., 119 Wis. 197, 96 N. W. 532, 100 Am. St. Rep. 879, are cited in Cyc. Ann. to 6 Cyc. 579, note 51. Three cases of a contrary tendency are Shannon v. Ches. & O. R. Co., 104 Va. 645, 52 S. E. 376, Davis v. Chesapeake & O. Ry. Co. (Ky.), 92 S. W. 339, 5 L. R. A., n. s., 458, and T. & P. Ry. Co. v. Fenwick, 34 Tex. Civ. App. 222, 78 S. W. 548. The first, however, was controlled by the fact that the railroad company was not privy to the contract by which the express agent undertook to assume the risk of his employment. In the second, reliance was placed upon a provision in the Kentucky constitution that “no common carrier shall be permitted to contract for relief from its common-law liability,” but the reasoning adopted would have led to the same result irrespective of. this consideration. The third also was influenced by local laws. The Voigt case was decided against the railroad company by the circuit court upon the theory that the decision in Railroad Company v. Lockwood, 84 U. S. 357, 21 L. Ed. 627, established for the federal courts a different rule upon the subject from that which had already been definitely announced by the courts of last resort of Indiana and Massachusetts and has since been followed by those of Illinois and Wisconsin. Mr. Justice Harlan based his dissent from the conclusion of the supreme court “upon the broad ground that the defendant corporation could not, in any form, stipulate for exemption from responsibility for the negligence of its servants or employees in the course of its business whereby injury comes to any person using its cars, with its consent, for purposes of transportation.” (176 U. S. 520.) Consistently with the view so expressed the same justice, together with Mr. Justice McKenna, also dissented in Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, where it was held that one accepting a free pass might make a valid contract releasing all claims on account of any injuries he might receive while using it on account of the ordinary negligence of the carrier’s employees. This is a question upon which there is some conflict in the decisions, but those holding an agreement so made to be void as against public policy obviously must rest upon some other consideration than a want of equality between the contracting parties.
Having determined, then, that Sewell had effectively waived any claim on his own part, it remains to consider whether as a result of such waiver the claim of his widow was defeated. The relation of the right of a person to recover damages which he sustains from a personal injury negligently inflicted upon him by another to the statutory right of his heirs to maintain an action (or to have an action maintained in their behalf) for their own loss occasioned thereby in case his death results has been frequently considered by the courts. The plaintiff in error regards Railway Co. v. Martin, 59 Kan. 437, 53 Pac. 461, as committing this court to the proposition that the injured person can riot by his contract in any way affect the right of the beneficiary of the statute. There the decedent had contracted that any liability for injuries he might receive through the negligence of another should not exceed $1000. The limitation was held to have no effect upon the amount the heirs might recover. In the opinion it was said:
“It is an action instituted by his widow as administratrix, . . . for the benefit of herself and the children of the deceased. It is to recover their damages resulting from the death of the husband and father. It is to recover for the injury to them rather than to the deceased. Against their rights the deceased had no authority to contract. The cause of action for which the plaintiff sues never accrued to him. It could only accrue as a result of his death. His stipulation, even if binding on himself, is no defense against the statutory right of the plaintiff.” (Page 448.)
The only question there involved, however, was whether a valid limitation upon the amount the injured person could recover for himself imposed a like limitation upon the amount to be recovered in behalf of his heirs. All that was said in, the opinion was said with reference to that question, and no other was determined —certainly not the question here presented. That the case was rightly decided is apparent. Whatever connection there may be between the two actions or the two causes of action, there is none between the amounts that can respectively be sued for in each. He who receives the injury can recover for whatever loss he can prove he has suffered. Whether his own loss be much or little, his heirs, if they can recover at all, can recover to the full extent of their actual damages — within the limits fixed by law — but no inore. Therefore a restriction upon the possible amount of his recovery can have no effect upon the extent of theirs. This is a consideration seemingly overlooked in I. C. R. R. Co. v. Cozby, 69 Ill. App. 256, where it was said: “If the husband can not limit the amount of the recovery, much less can he take away the right of recovery altogether.-”' (Page 262.)
Essentially the two causes of action referred to, although based upon the same wrongful act, are separate' and distinct. Logically there is no reason why two actions should not be instituted and prosecuted to a conclusion — one by the injured person for the loss that results to him from the defendant’s wrong, and the other by those dependent upon him on account of the support of which they are deprived by-his death,'just as each spouse may sue for damages consequent upon a tortious injury done to the wife. A plausible argument might Originally have been made that such was the purpose and effect of the Kansas statute (inasmuch as it provides [Civ. Code, § 420] that causes of action for injuries to the person shall survive), and that where the plaintiff in the first action died it might be revived and prosecuted to judgment for the benefit of his estate generally, while the second action might also be maintained for the benefit of those immediately dependent upon him. Under such a statute or such a construction it might well be asserted that the two causes of action were entirely separate and the waiver or satisfaction of one would not affect the other. But in McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, 52, 26 Am. Rep. 742, it was decided that the second action was in a sense a substitute for the first — that the first expired beyond revivor whenever the second accrued by the death of the plaintiff in consequence of the tort sued upon. This view is in accordance with the interpretation usually put upon similar statutes — that while the two causes of action are not the same, one depends upon the other, and any consideration that would be a bar to the first in the lifetime of the plaintiff would destroy the second. The section of the statute under consideration reads:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have, maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” (Gen. Stat. 1901, § 4871.)
In volume 8 of the American and English Encyclopaedia of Law, at page 870, it is said:
“When the right of action given by the statute is merely such as the deceased would have had if he had survived the injury, a release properly executed by him in his lifetime is a complete defense to an action by his personal representative or others to recover damages for his death. The same rule is true where the statute is not a survival statute, but creates a new and distinct-cause of action in favor of certain beneficiaries, if it provides that the right of action shall exist only in cases where the deceased himself might have maintained the action had he lived.”
And in volume 13 of the Cyclopedia of Law and Procedure, at page 325:
“Upon the question as to whether a release, executed by the deceased for the injury received by him, will continue a bar to an action by his representative or heirs for his death, there is considerable conflict of authority. However, the better rule is that where the party injured has compromised for the injury and accepted satisfaction previous to his death there can be no further right of action, and consequently no suit under the statute, unless it be shown that such compromise or release was procured by fraud or duress.”
The conflict referred to, as shown by the notes to the texts quoted, results chiefly from the decisions in Massachusetts and Kentucky construing the statutes of those states as penal rather than compensatory, and on that account upholding the right of the heirs to maintain their action although the personal claim of the decedent had been satisfied. The cases on the subj ect are collected in Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S. W. 851, where it was said:
“Whether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right, the general consensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts, no further right of action existed.” (Page 632.)
(See, also, cases cited in 2 Supp. to A. & E. Encycl. of L. 319, Cyc. Ann. to 13 Cyc. 325, note 43, and a full discussion in Bruns v. Welte, 126 Ill. App. 541.)
It can hardly be said that the adjudications show a substantial difference of opinion upon this phase of the matter. In a note on the subject in 70 Am. St. Rep. 684 the editor says, after reviewing the decisions:
“It is somewhat difficult to combat the logic which leads to such a conclusion. The rule, however, that no action for wrongful death is maintainable, except where •deceased himself could have sued had he survived, applies to, as indeed it grew out of, matters pertaining to the nature and cause of the injury which resulted in death. Was the negligence or wrongful act of defendant the proximate cause of the injury? If not, deceased could not have recovered against him, nor can his successors under the statute. Did deceased’s contributory negligence cause the injury? If so, any action for such injury is similarly barred. If the relation of master and servant subsisted between deceased and defendant, was the injury resultant from the act or neglect of a fellow servant, or was it, for any reason arising out of the rules of master and servant, such an injury as gave rise to no liability on the part of the defendant? If this is answered affirmatively, and in the two cases mentioned before, no cause of action ever arose which was susceptible of release or compromise. Where, however, a cause of action does arise, and the injured party has a period of suffering and expense, there seems no reason that he should not be able, while living, to make an adjustment of his claim with defendant which would bar a recovery by his beneficiaries after his death upon the same claim. But the action given under other than survival statutes is entirely distinct from the action which deceased had at the moment prior to his death. It is an action for damages arising' from the mere fact of death, not damages to the deceased, but damages to his successors under the statute. Therefore, we can not comprehend the reasoning which enables an injured person to release a cause of action which has not accrued, and can not accrue until his death, and which then accrues to third persons. ■ It would be necessary to support such a conclusion that we admit that a person has a right of action for his own death. A greater degree of absurdity would not be attained in the enactment of a statute making suicide punishable as murder in the first degree.”
This argument is ingenious and not lacking in plausi bility, but we can not regard it as affording sufficient ground for rejecting the doctrine referred to, which seems to have become thoroughly established as a part of the jurisprudence of statutory actions for death by wrongful act. Nor can we regard it as possible to distinguish between the effect of a settlement made by an injured person after his injury and a contract made by him in advance, founded upon sufficient consideration, and otherwise valid, waiving his right to recover. In principle such a waiver is an acceptance of satisfaction in advance, and in theory at least, whatever the fact may be, one agreeing to such waiver as a part of his contract of employment exacts and receives an addition to his wages sufficient to compensate him for the risk of injury he assumes. The defense based upon such an agreement is essentially that the person injured assumed the risks of his employment — a defense which is recognized as available in actions under the statute referred to. (Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582.) Such assumption of risk, like contributory negligence, prevents a right of action accruing to him who receives the injury, and is therefore fatal as well to a recovery by his administrator. We are constrained to hold that the contract which would have prevented an action by Sewell in his own behalf also prevents a recovery in behalf of his heirs.
SYLLABUS BY THE COURT.
Contracts — Release from Liability for Negligence — Express Messenger. In view of the Kansas statutes making a railroad company liable for all damages done to persons or property in consequence of any neglect on its part (Gen. Stat. 1901, § 5857), and for all damages done to any of its employees in consequence of any negligence of its agents or by any mismanagement of its engineers or other employees (Gen. Stat. 1901, § 5858), although an express company contracts with the railway company by means of whose trains it carries on its business that it assumes all risk of injury to its employees and undertakes to save the railway company harmless from any claims with respect thereto, and contracts with one of its employees that neither it nor the railway company shall be liable to him for any injury occurring to him while traveling on any of such trains in the course of such employment, such employee may still maintain an action against the railway company for injuries received while so traveling in consequence of the negligence of its agents.
The judgment is therefore affirmed.
Greene, Burch, Porter, JJ.', concurring.
Johnston, C. J., Smith, Graves, JJ., dissenting. | [
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The opinion of the court was delivered by
Smith, J.:
Charles Elrod went to the railroad company's station in Galena to learn the time of arrival of a train upon which he was expecting a friend. When he arrived upon the platform at the station, and before accomplishing his errand, he had occasion to go to the water-closet. The company had provided a water-closet ■about 100 feet in an easterly direction from the depot ■platform, the location of which was known to Elrod. Tn going thereto Elrod went to the northeast corner of the platform, and stepped off upon a step provided for "that purpose. In taking another step, as he supposed 'to the ground, his foot sank into a hole of ditch which was nearly in front of one side of the step, and in which there was a large drainage pipe. His foot struck upon the rounding surface of the drainage pipe, and he fell and dislocated or sprained his ankle. He brought this action in the district court of Cherokee county, and recovered damages for the injury.
It is evident that Elrod’s claim against the company for damages must rest upon some negligent omission of duty which the company owed to him and to others having business at its station under like circumstances. The only allegation of negligence in his petition is the following excerpt therefrom:
“That in going to said water-closet, as aforesaid, it was necessary for said plaintiff to step off the east end of said platform on the ground, and in doing so plaintiff stepped into a deep ditch and upon the edge of a drainage tile carelessly and negligently left exposed by said defendant company — and the ditch carelessly and negligently allowed to exist by said defendant company —all of which this plaintiff is unable to make more specific and certain, all of which condition had existed some time prior thereto, the exact time the plaintiff is unable to state more definitely, of which this plaintiff had no notice or knowledge, but which was well known, or, by the exercise of reasonable care and diligence, should have been known by the defendant.”
The substance of the complaint is that the company carelessly and negligently allowed the ditch to exist, and carelessly and negligently left the drainage tile therein so exposed, at a place where Elrod had a right to go by the implied invitation of the company, and that the ditch and tile were allowed to remain so near to the step leading from the platform that Elrod stepped into and upon the same without fault on his part.
The right of the plaintiff to recover should have been limited to the specific negligence alleged in his petition. He was not entitled to recover upon any other. (Telle v. Rapid Transit Rly. Co., 50 Kan. 455, 31 Pac. 1076; S. K. Rly. Co. v. Griffith, 54 Kan. 428, 38 Pac. 478; Brown v. Railway Company, 59 Kan. 70, 52 Pac. 65; Schwarzschild & Sulzberger Co. v. Weeks, 66 Kan. 800, 72 Pac. 274; 14 Encyc. Pl. & Pr. 342.) There was no reference in the petition to any failure on the part of the company properly to light its depot platform or the steps leading therefrom. Yet the court, over the objection of the company, gave the following instruction:
“ (11) You are instructed that it was the duty of the defendant to keep and have its platform and the steps or approaches immediately leading thereto reasonably sufficient and safe in all respects to be used by such persons as may have lawful occasion to use the same. It is not necessary that it should be perfectly and absolutely safe — so great a degree of perfection is usually impracticable, but it must be reasonably safe and sufficient for all persons rightfully and properly using the same, and who are themselves in the exercise of ordinary and reasonable care. Such lights as are reasonably necessary after dark to render the use of the platform and the approaches immediate thereto reasonably safe should be maintained at or near the time of the arrival of trains and while the same remain at the station; the proper character and extent of the lights required at any particular station depending on the character and extent of business transacted at such station. A light or lights that may be sufficient at one station might be inadequate at a larger one. The larger the station and the greater the number of passengers and persons lawfully doing business there the greater the need of a greater number or better lights.”
If the accident had occurred in daylight, or at night when the platform and steps were well lighted, it might have been well attributed to the negligence of Elrod. If, on the other hand, the company owed Elrod a duty and he was going where he had a right to go, as the jury in substance found under the instructions of the court, then the failure of the company to have the platform and steps properly lighted might have been the proximate cause of the injury. It is quite probable the jury took the latter view, as appears by the following special question and the answer thereto:
“ (14) Ques. If your answer to the last question discloses the fact that darkness had set in, then state whether or not at said place where the injury is claimed to have taken place there was not artificial light sufficient at the time to enable a prudent person to have seen any hole or excavation at the east end of the platform. Ans. No.”
It appears, therefore, that the eleventh instruction was erroneous, and that the plaintiff in error was prejudiced thereby. The judgment of the district court is reversed, and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Porter, J.:
A former judgment was reversed for error in sustaining a demurrer based on the statute of limitations, which defense this court held did not appear on the face of the petition. (Mentzer v. Burlingame, 71 Kan. 581, 81 Pac. 196.) Plaintiff and defendant were cosureties for the Yates Center Creamery Association on two promissory notes which were held by the Yates Center Bank. On April 11, 1898, when the notes matured, the bank took a new note for the amount of both, which was signed by the plaintiff and other cosureties but which was not signed by the defendant. Thereafter the bank obtained a judgment against the plaintiff upon the last-mentioned note. He satisfied the judgment on June 10, 1903, and afterward brought this suit for contribution against his cosureties, including the defendant, Burlingame. The cause was tried to the court without a jury. The court made findings of fact, and held as conclusions of law that the giving of the last note to the bank constituted a payment of the two notes signed by Burlingame; that any cause of action in favor of the plaintiff against his cosureties accrued at that time, and, as this suit was not begun until March 2, 1904, it Was barred by the statute of limitations. In this we think the learned judge erred. The original notes were simply renewed by the giving of the new note. This is shown conclusively by the evidence and findings of fact. No proof was offered which even tended to show an agreement between the bank and the makers of the new note that it should operate as payment. The bank retained the old notes, which were not stamped or marked “paid.” Prima, facie the giving of the new note was merely a renewal, and not a payment. The burden rested upon the defendant to show the contrary: (Stetler v. King, 43 Kan. 316, 23 Pac. 558, and cases cited; Webb v. Bank, 67 Kan. 62, 72 Pac. 520.)
The statute did not begin to run until the cause of action for contribution accrued, and that was when the surety satisfied the debt. The action was not upon the note nor upon the judgment, but upon the implied promise for contribution. (Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, 10 Am. St. Rep. 635; Zuellig v. Hemerlie et al., 60 Ohio St. 27, 53 N. E. 447, 71 Am. St. Rep. 707.) A surety’s right of action for contribution from a co-surety accrues at the time he pays the debt. The statute of limitations does not begin to run against his right until such payment. (Loewenthal v. Coonan, 135 Cal. 381, 67 Pac. 324, 1033, 68 Pac. 303, 87 Am. St. Rep. 115. See, also, extended note to Scott v. Nichols, 27 Miss. 94, in 61 Am. Dec. 504-508.)
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
Mason, J.:
James H. Lowell brought replevin against M. M. Beck & Son and obtained judgment, which is sought to be reversed in this proceeding. There was some conflicting testimony, but as the jury must be deemed to have resolved all doubts in favor of the plaintiff the evidence for the purposes of the case may be said to have established these facts:
J. S. Orr owned a printing plant, including a gasoline engine, which he used in a building rented from Lowell. A clause of the written lease, to secure the payment of the rent, purported to mortgage all personal property which the lessee should have upon the premises at any time. Orr made a chattel mortgage to Mrs. Kline covering all the machinery then used in his business, and specifically describing this engine. Beck & Son asked Lowell which of the mortgages had priority. Lowell answered that Mrs. Kline had a first lien upon the property described in her mortgage because it had been recorded before his, although, executed later. The Becks then bought Mrs. Kline’s mortgage, and took possession of the printing plant, including a gasoline engine then in use — not the one already referred to, but a new one procured by Orr after the mortgage had been given. Later they sold all this property at public sale, becoming themselves the purchasers. Before the sale Orr sold his interest in the property to Lowell. At the sale Lowell gave notice that he claimed the engine, not saying, however, whether he claimed it as mortgagee or as owner. This engine he sued for and recovered in the replevin action, under a claim of general ownership.
' The trial court allowed Lowell to introduce his lease in evidence. It is contended that this was error, because it permitted him while suing as owner to assert a title as mortgagee. The mortgage clause of the lease, however, was not relied upon as an independent ground of recovery. It was given in evidence incidentally as a a part of the history of the transaction out of which the litigation grew. The plaintiff recovered upon the theory presented by his pleading, a theory to which he was confined by the instructions given.
Complaint is also made of a ruling admitting evi dence of the usable value of the engine, but as the jury-allowed no damages on this account the error, if any, was not material.
The defendants asked an instruction to the effect that if the plaintiff stood by at the public sale and allowed them to purchase the .engine without giving them notice of the titlé claimed in his bill of particulars he could not recover. The court instructed that the plaintiff was precluded from recovery if, being present at the sale, he allowed the defendants to purchase the engine without giving them any notice of a claim of title or ownership on his part. The evidence as to what took place at the sale was somewhat conflicting. Manifestly the plaintiff made some sort of a claim to the property, but whether as owner or lien-holder, or as asserting an undefined right, was for the jury to determine. Therefore the' court might properly have added that if at the time of the sale the plaintiff claimed specifically as a mortgagee he could not thereafter assert that he held a title by purchase. But no such instruction was asked, and in the absence of a request the omission to give it can not be said to have been reversible error. The purchasers at the sale were not justified in assuming that a general claim of right or title then made by Lowell was necessarily based solely upon the mortgage lien which he had previously asserted.
The only other assignment of error thought to require separate mention is based upon the refusal to give an instruction as to the effect it should have on the verdict if the jury should find that the engine in controversy was purchased to replace the one described in the Kline mortgage, and that the old one formed a part of the consideration for the new. Such refusal could not have been error, for there was no evidence that such an exchange had been made.
The judgment is affirmed.
OPINION UPON A MOTION TO RETAX COSTS.
The opinion of the court was delivered by
Mason, J.:
The defendant in error filed a counter-abstract, for which $16 was taxed as costs upon the affirmance of the judgment. By a motion to retax costs the plaintiffs in error ask that the charge made on this account be stricken out, for the reason that the preparation of such counter-abstract was unnecessary. The court is oí the opinion that, subject to a qualification to be stated later, the point is well taken. The abstract filed by the plaintiffs in error presented the proceedings in the trial court, including the evidence, in condensed form, but with sufficient fullness to exhibit the precise questions of law involved, and with substantial if not absolute accuracy. The counter-abstract reproduced a part of the contents of the original abstract literally, and a part in substance. It did not point out in terms any specific omission or inaccuracy therein, and appears to have been prepared just as counsel for the defendant in error would have framed an original abstract. In view of these facts the plaintiffs in error clearly should be relieved of the charge complained of.
The qualification referred to is. made necessary by these considerations: No assignment of error was made having a direct relation to the verdict or to the special findings of the jury, and copies of these were omitted from the abstract, evidently upon the theory that they contained nothing bearing upon the questions to be determined by this court. However, one assignment with respect to the admission of evidence was affected by a fact specially found by the jury. It was consequently a proper function of the counter-abstract to present a copy of this finding, and perhaps in this connection it was justifiable to print as well the other findings and the general verdict. The defendant in error will therefore be allowed a charge of $2 for his counter-abstract, this amount being fixed by the proportion the necessary matter bore to the whole. The plaintiffs in error will be allowed the costs incident to their motion. | [
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The opinion of the court was delivered by
Smith, J.:
On the third trial of this case in the district court of Miami county the appellant was convicted of the crime of murder in the second degree, and to reverse the judgment therein presents this appeal.
The record brought here discloses none of the evidence produced upon the trial except the examination of the jurors on their voir dire. It also contains the affidavits and oral testimony produced on the motion for a new trial. A showing is also made here of the financial inability of appellant to procure a transcript of the evidence and proceedings at the trial. If the appellant has been unjustly convicted, and is financially unable to present a transcript of the evidence and proceedings which would disclose this fact, he is entitled to sympathy. We can not, however, assume that he was unjustly convicted on his unsupported claim that such is the fact. We can only review the trial from the record thereof prescribed by the statutes for that purpose, and in the absence of such record we are powerless. Whether provision for such a case should be made is a question for the lawmakers, not for the court.
As to the alleged disqualification and misconduct of jurors, the examination in open court discloses no erroneous ruling of the court; and the evidence of statements by jurors made after the trial as to their preconceived opinions and to occurrences in the jury-room is, so far as inquiry is permissible, disputed. The-court weighed the evidence and by its ruling on the' motion for a new trial found adversely to appellant’s contention. It is not our province to weigh conflicting evidence.
The judgment is affirmed. | [
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Per Curiam:
In an action by Bessie Derrick against the Atchison, Topeka & Santa Fe Railway Company to recover damages for the death of her husband, an express messenger, occasioned by the negligent operation of one of the defendant’s train's, an answer was filed setting up as a defense that the decedent, as a part of his contract of employment by the express company, agreed to release both companies from all liability for injuries received by him while in the discharge of his duties. This defense was demurred to, and the court sustained the demurrer. The defendant prosecutes error from that ruling. The question involved is the same as that presented in Sewell v. Railway Co., ante, p. 1, upon the authority of which case the ruling is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In August, 1904, the plaintiff held the office of attorney-general of the state, and was a candidate for reelection at the general election which occurred in the following November. By virtue of his office he was a member of the commission charged with the management and control of the state school fund. The defendant was the owner and publisher of The Topeka State Journal, a newspaper published at Topeka and circulated both within and without the state. In the issue of August 20, 1904, appeared an. article purporting to state facts relating to the plaintiff’s official conduct in connection with a school-fund transaction, making comment upon them and drawing inferences from them. Deeming the article to be libelous the plaintiff brought an action for damages against the defendant, alleging that the matter published concerning him was false and defamatory and that its publication was the fruit of malice. Among other defenses the defendant pleaded facts which he claimed rendered the article and its publication privileged.
At the trial instructions presenting the plaintiff’s view of the law of privilege were refused, and the following instruction was given to the jury instead:
“As you have already observed from the statement of the case, defendant claims, as his first defense, that the publication is what is known in law as ‘privileged.’ A communication, made in good faith, upon any subject-matter in which the party communicating has aln interest, or in reference to which he has a duty, public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged; And where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article. If you believe-then from the evidence in this case that on August 20, 1904, plaintiff was a candidate for reelection to the office of attorney-general, and that defendant published' said article for the sole purpose of giving to the voters of Kansas what he believed to be truthful information concerning the acts of the attorney-general, and only for the purpose of enabling such voters to cast their ballots more intelligently, and that the defendant made all reasonable effort to ascertain- the facts before publishing the same, and that the whole thing was done in good faith and without malice toward plaintiff, and if you believe that the bulk of the circulation of the said paper was within the state of Kansas and that its circulation outside of the state of Kansas was only incidental, then I instruct you that your verdict must be-for the defendant, although you may believe the principal matters contained in said article untrue in fact and derogatory to the character of the plaintiff. But on the contrary, if you should find from the evidence that said article was published with a malicious intent to 'wilfully wrong and injure plaintiff, then the fact that, the article is a privileged one would constitute no-defense to this action, and the plaintiff would be entitled to recover such damages as the evidence shows him to have sustained by reason 'of said publication.”
In the course of the trial it became material whether the purchasable quality of county bonds offered to the school fund may be predicated upon the equalized valuation of property instead of its assessed valuation, and whether certain manipulations of the public funds in the state treasury were contrary to law. It likewise became necessary for the court to give the jury a definition of a conspiracy, and to apply the definition to the facts of the case. Instructions tendered by the plaintiff upon these subjects were refused, and exceptions were saved to those given. The following instruction asked by the plaintiff was refused and an . exception noted:
“The court instructs you that even though you should believe from all the evidence in this case, if you do so believe it, that the publication of the article as alleged in plaintiff’s petition was privileged and justifiable within the limits of the state of Kansas, yet I instruct you that under the evidence and the pleadings in this case the publication of such article outside of, and beyond the limits of, the state of Kansas is neither privileged nor justifiable; and, if you believe from the evidence that publication of said article was made outside of, and beyond the limits of, the state of Kansas by the circulation of any number of copies of The Topeka. State Journal containing said article, the plaintiff in this action, is entitled to recover damages for such publication beyond- the boundaries and limits of the state of Kansas.”
No exception was taken to the following instruction relating to the subject of damages:
“In case .you find for the plaintiff, the next question for you to determine is the amount of recovery. In .this there is no mathematical rule that the court can give you as a guide. You will assess his damages in such sum as will compensate him for all damages he has sustained as a necessary and natural result of the publication of the article charged, and in arriving at this you should consider the injury, if any, to his feelings and his reputation, and the humiliation, if any, caused by such publication, and the injury, if any, to his business and profession. If you find that the article was published maliciously, as hereinbefore defined, you •may then, if you see fit, assess damages, called ‘punitive damages,’ in addition by way of smart-money or punishment to the defendant for having published the article in question, and for the purpose of setting a wholesome example to others. I further instruct you that punitive damages may not be recovered by the plaintiff, nor allowed by you in your verdict, unless you shall first find that the plaintiff «is entitled to recover actual damages in some amount.”
Many special questions were submitted to the jury, among which were the following, the answers returned being appended:
“ (1) Ques. Does the testimony show that the plaintiff sustained any actual damage by the publication of this article mentioned in his petition? Ans. It does not. i,
“ (2) Q. If you answer the foregoing question in the affirmative, then state in detail of what such actual damage consists. . A. -.” .
“(52) Q. On the 20th day of August, 1904, when said article complained of was published, did said defendant, or any of his employees, have any actual malice of or against the said plaintiff? A. No.”
The jury found generally for the defendant. A motion for a new trial was denied, and the plaintiff prosecutes error.
The plaintiff claims that the court committed grievous error in its instructions to the jury and by refusing to instruct according to the plaintiff’s requests, the instruction upon the subject of privilege being attacked with especial fervency. To this claim the defendant makes two answers: First, that the instructions given state the law, and, second, that even if error was committed in giving and refusing instructions it has become inconsequential in view of the special finding that the plaintiff suffered no damage from the publication of the article which occasioned the suit. The plaintiff replies that the finding referred to was induced by the instructions assailed, although they relate to other branches of the controversy.
Beyond their importance to the immediate parties the questions raised are of the utmost concern to all the people of the state. What are the limitations upon the right of a newspaper to discuss the official character and conduct of a public official who is a candidate for reélection by popular vote to the office which he holds ? What are the limitations upon the authority of this court to overturn a verdict and judgment and to remand a case for retrial upon a claim that an error of the district court respecting a particular feature of the litigation has tainted the whole result? The constitution contains a provision which reads as follows:
“The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.” (Bill of Rights, § 11.)
The constitution supplies no definition of the term “liberty of the press.” A right existing at the time-the constitution was adopted is guaranteed, the nature and extent of which must be ascertained by looking-elsewhere. Frequently it is said that the expression was used in the sense it bears in the common law. If' so, the question arises: The common law at what stage of its development? Certainly not the common law of' England as it existed when first transplanted to this country by our forefathers in the fourth year of the: reign of King James I (1607). All printing was then subservient to royal proclamations and prohibitions, charters of privilege, license and monopoly, and decrees of the court of star chamber. The newspaper-proper did not appear until 1622, and the beginnings of the modern law of libel find their source in the star-chamber decision De IÁbellis Famosus, rendered in 1609.
Nothing like a definition could be framed from the* law of England at any subsequent period. When the-court of star chamber was abolished- (in 1641) parliament assumed the prerogative respecting the licensing-of publications which it had held, and the press did not. become free from this restraint until 1694. Its liberty was then more theoretical than actual on account of the-harshness of the law of libel and the manner in which that law was administered in the courts. The long-struggle against the courts, culminating in the passage-of the libel law in 1792, with which the names of Fox, Erskine and Camden are so honorably and brilliantly associated, is familiar history. The statutes De Scandalis Magnatum were not formally repealed until 1887,. although prosecutions under them ceased long before.. A species of censorship survives in the act of 1848 re quiring new plays to be submitted to the lord chamberlain for examination and approval, and the present state of the law of England on the subject of defamation is described in an essay, “The History and Theory of the Law of Defamation,” in volume 3 of the Columbia Law Review, as follows:
“Unfortunately the English law of defamation is not the deliberate product of any period. It is a mass which has grown by aggregation, with very little intervention from legislation, and special and peculiar circumstances have from time to time shaped its varying course. The result is that perhaps no other branch of the law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies. It is, as a whole, absurd in theory, and very often mischievous in its practical operation.” (Page 546.)
Little aid is supplied by a consideration of our own colonial history and the early history of our separate national existence. The colonies followed closely the practice of the mother country. Even the publication of general laws was forbidden by the magistrates, who yielded only after long and bitter struggles. Royal governors were instructed to prohibit printing, books were burned as offenders against the public welfare, and the school histories all tell about Governor Berkley’s boast that free schools and printing-presses were not allowed in Virginia. The proceedings of the convention which framed the constitution of the United States were conducted in secret. The provision forbidding congress to pass any law abridging the freedom of speech or of the press came into the constitution by way of an amendment. The debates of the senate did not become opén to the public until 1793, and the incident of the ill-starred sedition law in our constitutional history shows how far ideas relating to the protection of personal character and governmental institutions were then unreconciled in legal theory with freedom of thought and expression upon public questions.
At the time the constitution of this state was adopted some progress had been made and some clarification had taken place. But statutory improvement had been halting and inefficient, judicial decisions had often been narrow, illiberal and confusing, and the main principles of the law of libel remained substantially the same as they were when Blackstone wrote. The result, is that “liberty of the press” is still an undefined term, and like some other familiar phrases of constitutional law must remain undefined. Certain boundaries are fairly discernible within which the liberty must be displayed; but precise rules can not be formulated in advance to govern its exercise on particular occasions. In the decision of controversies the character, the organization, the needs and the will of society at the present time must be given due consideration. The press as we know it to-day is almost as modern as the telephone and the phonograph. The functions which it performs at the present stage of our social development, if not substantially different in kind from what they have been, are magnified many fold, and the opportunities for its influence are multiplied many times. Judicial interpretation must take cognizance of these facts. As Mr. Chief Justice Cockburn said in deciding a famous libel suit:
“Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generations to which it is immediately applied.” (Wason v. Walter, L. R. 4 Q. B. [Eng. 1868] 73, 92.)
The constitutional guaranty clearly means that thé press shall be free from previous government license, and the decisions are quite uniform, but not unanimous, that it shall be free from court censorship through in junctions against publication. Early writers on constitutional law and early cases say that it means no more, but later commentators and later decisions maintain that it does mean more. Thus Judge Cooley has said:
“But while we concede that liberty of speech and of the press does not imply complete exemption from responsibility for everything a citizen may say or publish, and complete immunity to ruin the reputation or business of others so far as falsehood and detraction may be able to accomplish that end, it is nevertheless believed that the mere exemption from previous restraints can not be .’all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications. . . . The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation or pecuniary interests of individuals.” (Cooley’s Const. Lim., 7th ed., 603, 604.)
This doctrine was recently authoritatively stated by the supreme court of North Carolina, as follows:
“In its broadest sense, freedom of the press includes not only exemption from censorship, but security against laws enacted by the legislative department of the government or measures resorted to by either of the other branches for the purpose of. stifling just criticism or muzzling public opinion.” (Cowan v. Fair- brother, 118 N. C. 406, 418, 24 S. E. 212, 32 L. R. A. 829, 54 Am. St. Rep. 733.)
Such also is the opinion of the supreme court of Texas.
Whatever more than freedom from previous license 'the constitutional guaranty may include, it is clear that it does not grant immunity for the publication of articles which imperil the public peace by advocating the murder of governmental officers and the destruction •of organized society. Constitutional government may at least protect its own life,’and Johann Most was properly convicted under a statute designed to secure the public peace, because of an article appearing in his newspaper, the- Freiheit, instigating revolution and murder, suggesting the persons to be murdered through the positions occupied and the duties performed by them, advising all persons to discharge their duty to the human race by murdering those who enforce law, ■denouncing those who would spare ministers of justice as guilty of a crime against humanity, and naming poison and dynamite as agencies to be employed in murder and destruction. (People v. Most, 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509.)
Constitutional government may also under its police power take reasonable steps to protect the morals of the people for whom and by whom it is instituted, and to this end may suppress the circulation of newspapers which, like The Kansas City Sunday Sun, of infamous memory, are devoted largely to the publication of ■scandals, lechery, assignation's, intrigues of men and women, and other immoral conduct. (In re Banks, Petitioner, 56 Kan. 242, 42 Pac. 693; State v. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627; Strohm v. The People, 160 Ill. 582, 43 N. E. 622.) Likewise newspapers may be suppressed which are made up principally of criminal news, police reports, and pictures and stories .of bloodshed, lust and crime. (State v. McKee, 73 Conn. 18, 46 Atl. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124.) Newspapers like those just described display the licentiousness, and not the liberty, of the press. Here, as elsewhere in our political system, just rules and regulations are not badges of oppression, but are the necessary conditions of true liberty, and the constitutional guaranty under discussion is not opposed to penal and remedial laws upon the subject of libel and the regulation of procedure in the conduct of libel cases.
Even in these days, when the amassing of wealth absorbs so much of the energy of the race, it may still be said that a good name is rather to be chosen than great riches. ; Among sovereign states that “decent respect to the opinions of mankind” which prompted the appeal to public opinion made in our own declaration of independence is the chief sanction for the great body of rules known and observed as international law. The terror of social reprobation and public disgrace induces observance of the criminal law more than fear of fine and imprisonment. The desire to meet social standards of virtue contributes to business integrity. While the approval of conscience is a strong force, and may righteously isolate the martyr and the reformer for a time, the love of deserved social esteem — the innate craving for the social crown of “well done” — is a most powerful motive to good conduct' with the great mass of mankind. Without doubt it is responsible for large share of our mental, moral and material progress.,;1 A good reputation honestly earned is not only one of the most satisfying sources of a man’s own contentment, but from a commercial standpoint it is one of the most productive kinds of capital he can possess. Therefore it ought to find guaranties of protection in the fundamental law along with those which guard the liberty of the press, and such is indeed the case., The provision of the bill of rights quoted takes for granted a law of libel, and-section 18 of that document places injury to reputation on the same plane with injury to person and property. It reads as follows:
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
It is very clear that these words can not, however, be given unlimited signification and force in all cases. ■Where the public welfare is concerned the individual must frequently endure injury to his reputation without remedy:.[in some situations an overmastering duty obliges a person to speak, although his words bring another into disrepute. Such is the case of a witness testifying to relevant facts in court. Reasons of public policy forbid that the question of malice in his mind should be investigated, and the communication he makes, although damaging in the extreme, is absolutely privileged. He may be prosecuted for perjury, but a civil action based upon his statements is not permitted.
“A man may be defamed by an unjust removal from office on unfounded charges; by injurious testimony given in courts of justice; by the unwarranted deductions of counsel in presenting his case adversely to the jury, and in many other ways where, notwithstanding, the agent in the injury was wholly free from legal fault. Thus, a great public character may, perhaps, suffer in reputation all his lifetime from an impeachment for an offense never in fact committed; yet if the impeachment was instituted in good faith, and on grounds apparently sufficient, those concerned in it only performed a public duty. We unhesitatingly recognize the fact that in many cases, however damaging it may be to individuals, there should and must be legal immunity for free speaking, and that justice and the cause of good government would suffer if it were otherwise. With duty often comes a responsibility to speak openly and act fearlessly, let the consequences be what they may; and the party upon whom the duty was imposed must be left accountable to conscience alone, or perhaps to a supervising public sentiment, but not to the courts.” (Cooley, Torts, 2d ed., 246.)
In other situations there may be an obligation to 'speak which, although not so imperative, will under certain conditions prevent the recovery of damages by a party suffering injury from the statements made. There are social and moral duties of less perfect obligation than legal duties which may require an interested person to make a communication to another having a corresponding interest. In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends-to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.
Under a form of government like our own there must be freedom, to canvass in good faith the worth of character and qualifications of candidates for office, whether elective or appointive, and by becoming a candidate, or allowing himself to be the candidate of others, a man tenders as an issue to be tried out publicly before the. people or the appointing power his honesty, integrity,, and fitness for the office to be filled. - . ■<
) In the case of Wason v. Walter, L. R. 4 Q. B. (Eng.) 73, already cited, the question for decision was whether a report of a* debate in parliament containing matter disparaging to the character of an individual, spoken in the course of debate, furnished ground for an action of libel by the party whose character was called in question. The court held that it was not, and in the opinion of Mr. Chief Justice Cockburn it was said:
“The other and the broader principle on which this: exception to the general law of libel is founded is, that the advantage to the community from publicity being given to the proceedings of courts of justice is so great that the occasional inconvenience to individuals arising from it must yield to the general good. It is true that, with a view to distinguish the publication of proceedings in parliament from that of proceedings in courts of justice, it has been said that the immunity accorded to the reports of the proceedings of courts of justice is grounded on the fact of the courts being open to the public, while the houses of parliament are not; as also that by the publication of the proceedings of the courts the people obtain a knowledge of thq law by which their dealings and conduct are to be regulated. But in our opinion the true ground is that given by Lawrence, J., in Rex v. Wright, 8 T. R. 298, namely, that ‘though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings.’ In Davidson v. Duncan, 7 E. & B. 231 (E. C. L. vol. 90), 26 L. J. Q. B. 106, Lord Campbell says: ‘A fair account of what takes place in a court of justice is privileged. The reason is that the balance of public benefit from publicity is great. It is of great consequence that the public should know what takes place .in court; and the proceedings are under the control of the judges. The inconvenience, therefore, arising from the chance of injury to private character is infinitesimally small as compared to the convenience of publicity.’ And Wight-man, J., says: ‘The only foundation for the exception is the superior benefit of the publicity of judicial proceedings which counterbalances the injury to individuals', though that at times may be great.’ ” (Page 87.)
Paraphrasing this language, it is of the utmost con'sequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, .and occasional injury to the reputations of ipdividuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and'the chance of injury to private, character so small, that such discussion must be privileged.
The law of libel which the constitution takes for granted gives expression to, and room for the operation of, these fundamental principles of public policy, and the bill of rights must be interpreted accordingly. Section 11 of the bill of rights sets off the inviolability of the liberty of the press from the right of all persons freely to speak, write or publish their sentiments on all subjects, and this fact has given rise to claims on the part of newspaper publishers of special privileges not enjoyed in common by all. Whether such claims are just need not be decided in order to determine the rights of the parties to this litigation. So far they have been rejected by the courts, and the present consensus of judicial opinion is that the press has the same rights as an individual, and no more. The basis of the contention for a more liberal indulgence lies in the modern conditions which govern the collection of news items, and the insistent popular expectation that newspapers will expose, and the popular demand that they shall expose, actual and suspected fraud, graft, greed, malfeasance and corruption in public affairs and questionable conduct on the part of public men and candidates for office without stint, leaving to the people themselves the final verdict as to whether charges made or opinions expressed were justified.
Nor is it necessary in this case to define the word "sentiments,” used in section 11 of the bill of rights. If that word means no more than thoughts, judgments, opinions or notions, and the section does not protect freedom to make assertions of fact, still a more liberal libel law would not violate it. The constitution guarantees to the individual a minimum of liberty. Other law is not forbidden to secure a larger measure.
There is great diversity of opinion regarding the extent to which discussions of the fitness of candidates for- office may go. In England and Canada the limit is fixed at criticism and comment, which, however, may be severe, if fair, and may include the inferring of motives for conduct in fact exhibited if there be foundation for the inference. In some of our own states the rule is more liberal, while in others it is more narrow. According to the greater number of authorities the occasion giving rise to conditional privilege does not justify statements which are untrue in fact, although made in good faith, without malice and under the honest belief that they are true. A minority allows the privilege under such circumstances. The district court instructed the jury according to the latter view¿, and the instruction given has the sanction of previous decisions of this court.
In the case of Kirkpatrick v. Eagle Lodge, 26 Kan. 384, 40 Am. Rep. 316, a report was made to a grand lodge of Odd Fellows, by a special committee to which was referred a petition respecting the expulsion .of a member of the order, stating that the officers of a subordinate lodge to which the petition had been presented were of the opinion that the sworn statements of the petition were infamously untrue. This report was received, adopted, published in the grand lodge journal, and distributed among the members of the order, for whom it was intended. The court held that the occasion for the publication prevented the inference of malice and afforded a qualified defense depending upon the absence of actual malice. The opinion distinguished between absolute and qualified privilege, and said:
“Under this classification, which is fully sustained by the authorities, the publication complained of is only conditionally privileged, and as the averments in the petition are that the injurious publication is false and malicious, and that the defendants, well knowing its falsity, maliciously published it for the purpose of bringing the plaintiff into public scandal, infamy and disgrace, the petition states a cause of action; but no recovery can be had thereon without proof of express malice on the part of the defendants, though the charge imputed in the publication be without foundation.” (Page 391.)
In the case of Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050, 48 L. R. A. 236, two paragraphs of the syllabus read as follow:
“Where the officers of a- church, upon inquiry, find that their pastor is unworthy and unfit for his office, and thereupon, in the performance of what they honestly believe to be their duty toward other members and churches of the same denomination, publish, in good faith, in.the church papers the result of their inquiry, and there is a reasonable occasion" for such publication, it will be deemed to be privileged, and protected under the law.
“In such case, and where the plaintiff seeks damage, it devolves on him to establish actual malice, and where his own testimony disproves malice the court is justified in taking the case from the jury upon a demurrer to the evidence.”
In the course of the argument of the opinion it was said:
“The publication is defamatory in character, and naturally would largely deprive the plaintiff of the confidence of the members of. his church organization throughout the country. If it was false in fact and maliciously made, the plaintiff is entitled to recover to the extent of the injury suffered, unless the relations of the-parties and the circumstances of the case justified the publication and brought the defendants within the privilege and protection of the law. The defamatory statement was not absolutely privileged, as words spoken or written by judges, jurors or witnesses in the course of judicial proceedings, or as in legislative debates, but it was at most a case of qualified privilege. Whether it was so privileged must be determined by the position occupied by the defendants, their relations to the plaintiff and to other members of the same denomination, and the circumstances under which the publication was made. If the statements were published in good faith and in the performance of what was honestly deemed to be an official or moral duty toward other church members, and for the benefit and protection of the church organization at large, and there was a reasonable occasion for the publication, it was privileged and protected. ... If the plaintiff was unworthy or unfit to discharge the sacred functions of his high calling, the defendants, iáterested in the welfare of the denomination throughout the land, would appear to have been justified in warning other members and congregations of that organization to whom the plaintiff might offer his services as pastor. If the publication was prima facie privileged, it devolved on the plaintiff to allege and prove that it was both false in fact and malicious in purpose.” (Pages 482, 483.)
The moral and social duty of members of a great -fraternity or of a great church organization to inform their brothers of the scandalous conduct of a fellow member or one of their leaders is no higher or stronger than that of electors to keep the public administration pure by warnings respecting the character .and conduct of a candidate for office; and if false words are not actionable in one case unless published with -actual malice they are privileged to the same extent in the other. Such is the clear declaration of the court in the case of The State v. Balch, 31 Kan. 465, 2 Pac. 609. True, that was a criminal case,, but the rule of privilege is the sanie in both civil and .criminal actions. It is the occasion which gives rise to.privilege, and this is unaffected -by the character of .subsequent proceedings in which it may be pleaded.
In Balch’s case a printed article making grave charges against the .character-of a candidate for county ■attorney was circulated among the voters of the county previous to the election. In the opinion holding the occasion to be privileged the court said:
“If the supposed libelous article w;as circulated, .only .among, the voters of Chase county,-and only for the purpose of giving what the defendants believed -to be truthful information, and only for the purpose of enabling such voters to cast their ballots more intelligently, and the whole thing-was done in good faith, we think the article was privileged and the defendants should have been acquitted, although the principle matters contained in the article were untrue in fact and derogatory to the character of the prosecuting witness. ... . Generally, wé think a person may in good faith publish whatever he may honestly believe to be true, and essential to the protection of his own interests or the interests of the person or persons to whom he makes the publication, without committing any public offense, although what he publishes may in fact not be true and may be injurious to the character of others. And we further think that every voter is interested in electing to office none but persons of good moral character, and such only as are reasonably qualified to perform the duties of the office. This applies with great force to the election of county attorneys.” (Page 472.) •
Substantially the same doctrine is the basis of the following decisions: Mott v. Dawson, 46 Iowa, 533; Bays v. Hunt, 60 Iowa, 251, 14 N. W. 785; Marks v. Baker, 28 Minn. 162, 9 N. W. 678; The State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217; Palmer v. Concord, 48 N. H. 211, 97 Am. Dec. 605; Carpenter v. Bailey, 53 N. H. 590; Briggs v. Garrett, 111 Pa. St. 404, 2 Atl. 513, 56 Am. Rep. 274; Press Company v. Stewart, 119 Pa. St. 584, 14 Atl. 51; Jackson, Appellant, v. Pittsburgh Times, 152 Pa. St. 406, 25 Atl. 613, 34 Am. St. Rep. 659; Myers v. Longstaff, 14 S. Dak. 98, 84 N. W. 233; Express Printing Co. v. Copeland, 64 Tex. 354; Shurtleff v. Stevens, 51 Vt. 501, 31 Am. Rep. 698; Posnett v. Marble, 62 Vt. 481, 20 Atl. 813, 11 L. R. A. 162, 22 Am. St. Rep. 126; O’Rourke v. Publishing Co., 89 Me. 310, 36 Atl. 398; Crane v. Waters (C. C.), 10 Fed. 619.
Tfie plaintiff asks that the decisions of this court quoted above be overruled, and that they be supplanted by one which shall express the narrow conception of the law of privilege held by the majority of the courts. Kirkpatrick’s case was decided in 1881, and Balch’s case in 1884. The Redgate decision is almost ten years old. A quarter of a century has elapsed since the doctrine of those cases was promulgated, a,nd the legislature, coming directly from the people year after year, has not seen fit to make any modification of it. Surely in that length of time, and in view of the repetition of the error, if any were committed, some legislative ac tion would have been taken to safeguard the reputations of our citizens if they were unduly imperiled by those decisions. The fact that so many courts of this country, all of high character, of great learning and ability, and all equally interested in correctly solving the problems of free government, differ from us, makes us pause; but a reversal of policy and the overturning of what has been so long accepted as settled law would be tantamount, under the circumstances, to legislation. Such a step ought not to be urged upon the court except for conclusive reasons, f What are the reasons supporting the majority rule? The decision most freely quoted since it was rendered, in 1893, and chiefly relied upon by the plaintiff here, is that of the United States circuit court of appeals for the sixth circuit in the case of Post Publishing Company v. Hallam, 16 U. S. App. 613, 8 C. C. A. 201, 59 Fed. 530. Counsel in the case had argued from the duty of newspapers to keep the public informed concerning those who are seeking their suffrages and confidence, and had asked if it were possible that the privilege allowed in discussing the character of public servants should be less than that which protects defamatory statements made concerning a private servant. The opinion states this argument, and then proceeds as follows:
“The existence and extent of privilege in communi/cations is determined by balancing the needs and good of society with the right of an individual to enjoy a good reputation when he has done nothing which ought I to injure his reputation. The privilege should always (cease where the sacrifice of the individual right be-I comes so great that the public good to be derived from , it is outweighed. Where conditional privilege is extended to cover' statements of disgraceful facts to a master concerning a servant, or one applying for service, the privilege covers a bona fide statement on reasonable grounds to the master only, and the injury done to the servant’s reputation is with the master only. This is the extent of the sacrifice which the rule compels the servant to suffer in what was thought to be, when the rule became law, a most important interest of society. But if the privilege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with one person only, or a small class of persons, but with every member of the public whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable grounds. We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good.
“We are pware that public officers and candidates for public office are often corrupt when it is impossible to make legal proof thereof, and of course it would be well if the public could be informed in such a case of what lies hidden by concealment and perjury from judicial investigation. But the danger that honorable and worthy men may be driven from politics and public service by allowing too great latitude in attacks upon their character outweighs any benefit that might occasionally accrue to the public from charges of corruption that are true in fact but are incapable of legal proof. The freedom of the press is not in danger from the enforcement of the rule we uphold. No one reading the newspaper of the present day can be impressed with the idea that statements of fact concerning public men and charges against them are unduly guarded or restricted, and yet the rule complained of is the law in many of the states of the Union and in England.” (Page 652.)]
Here the rule by which privilege is to be measured is correctly stated, as in Wason v. Walter, L. R. 4 Q. B. (Eng.) 73 — the balance of public good against private hurt. The argument of counsel is then answered, and the statement is made that a candidate ought not suffer a loss in reputation with the whole public for the public good. That is the question to.be decided, and not a reason why’it'should be so decided. Then the sole rea'Yon for the decision is stated — that honorable and worthy men will be driven from politics. Then the consequences of the decision are commented upon: Freedom of the press will not be endangered — an asser tion, as shown by the manner in which public men are handled by the press at the present time — an appeal to experience for proof.
The single reason upon which the Hallam decision is. based is also in the nature of a - prediction, and is not new. It was advanced in this country in 1808 by Mr.. Chief Justice Parsons (Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212), and by Chancellor Walworth in 1829, in the case of King v. Root, 4, Wend. [N. Y.] 114, 21 Am. Dec. 102. Speaking in opposition to the liberal doctrine the chancellor said:
“It is, however, insisted that this libel was a privileged communication. If so, the defendants were under' no obligation to prove the truth of the charge; and the: party libeled had no right to recover unless he established -malice in fact, or showed that the editors knew 'the charge to be, false. The ■ effect of such a doctrine would be deplorable. Instead of protecting it would destroy the freedom of the press, if it were understood that an editor could publish what he pleased against candidates for cjffice without being answerable for the truth of such publications. No honest man could afford .to be an-editor, .and no man who had any character to lose .would be a candidate for office, under such a. construction of-the. law of. libel. .The only safe rule to adopt in such cases .is .to permit editors, to publish what they please in relation .to the character .and qualifications of candidates for office, but holding them responsible for the truth of what they publish.” (Page 139.)
These predictions call to mind that of Lord Thurlow, who, when, protesting against the .passage of the Fox libel act, said it would.result in “the confusion and destruction of the law of England.” (2 May’s Const. Hist, of ;Eng. 122.) The actual, results of the struggle ending in the enactment of that law .are stated by the author cited as follows:
“The press was brought into closer relations with the state. Its functions were elevated, and its responsibilities increased. Statesmen now had audience of the people. They could justify their own acts to the world. The falsehoods and misrepresentations of the press were exposed. Rulers and their critics were brought face to face, before the tribunal of public opinion. The sphere of the press was widely extended. Not writers only, but the first minds of the age — men ablest in council and debate — were daily contributing to the instruction of their countrymen. Newspapers promptly met the new requirements of their position. Several were established during this period whose high reputation and influence have survived to our own time; and by fulness and rapidity of intelligence, frequency of publication, and literary ability, proved themselves worthy of their honorable mission to instruct the people.” (2 May’s Const. Hist, of Eng. 123.)
In opposition to the high authority of King v. Root and the Hallam case may be placed Thomas M. Cooley, who must be reckoned with in the discussion of any question upon which he has deliberately expressed himself. Commenting on the foregoing quotation from King v. Root, he says:
“Notwithstanding the deplorable consequences here predicted from too great license to the press, it is matter of daily observation that the press, in its comments upon public events and public men, proceeds in all respect as though it were privileged; public opinion would" not .sanction prosecutions by candidates for office for publications amounting to technical libels, but which were nevertheless published without malice in fact; and the man who has a ‘character to lose’ presents himself for the suffrages of his fellow citizens in the full ’ reliance that detraction by the public press will be cor-1 rected through the same instrumentality, and that un-! merited abuse will react on the public opinion in his 1 favor. Meantime the press is gradually becoming more just, liberal and dignified in its dealings with political opponents, and vituperation is much less common, reckless and bitter now than it was at the beginning of the century, when repression was more often resorted to as a remedy.” (Cooley’s Const. Lim.,' 7th ed., 644, note.)
This statement of the results of Judge Cooley’s observation is in full accord with our own local experience. Without speaking for other states in which the liberal rule applied in Balch’s case prevails, it may be said that here at least men of unimpeachable character from all political parties continually present themselves as candidates in sufficient numbers to fill the public offices and manage the public institutions, and the conduct of the press is as honest, clean and free from abuse as it is in states where the narrow view of privilege obtains.
The fact that the public welfare hag been promoted in England by liberalizing the law of libel is freely acknowledged in Wason v. Walker, L. R. 4. Q. B. (Eng.) 73:
“Our view of libel'lias, in many respects, only gradually developed itself into anything like a satisfactory and settled form. The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. Comments on government, on ministers and officers of state, on members of both houses of parliament, on judges and other public functionaries, are now made every day, which half a century ago would have been the subject of actions or ex officio informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often ‘ have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties ?” (Page 93.)
Since the only reason given for the rejection of the liberal rule fails, it is pertinent to inquire if the consequences of the narrow rule are so innocuous as the Hallam case asserts; and in doing so it must be borne in mind that the correct rule, whatever it is, must govern in cases other than those involving candidates for office. It must apply to all officers and agents of government — municipal, state and national; to the management of all public institutions — educational, charitable and penal; to the conduct of all corporate enter prises affected with a public interest — transportation, banking, insurance, and to innumerable other subjects involving the public welfare. Will the liberty of press be endangered if the discussion of such matters must be confined to statements of demonstrable truth, and to what a jury may, ex post facto, say is “fair” criticism and comment? Will free discussion of the subjects indicated be smothered if the newspapers, understand that they must respond in damages for deducing and stating a wrong conclusion of fact from strong circumstantial evidence indicating fraud, corruption or other conduct injurious to the public welfare?
The case of Atkinson v. Detroit Free Press, 46 Mich. 341, 9 N. W. 501, was decided upon a question of pleading and a question of evidence. The opinion of the court did not treat the subject of privilege. Mr. Justice Cooley, however, took occasion to express himself upon the point now under consideration as follows:
“The beneficial ends to be subserved by public discussion would in large measure be defeated if dishonesty must be handled with delicacy and fraud spoken of with such circumspection and careful and deferential choice of words as to make it appear in the discussion a matter of indifference. ... If such a discussion of a matter of public interest were prima facie an unlawful act, and the author were obliged to justify every statement by evidence of its literal truth, the liberty of public discussion would be unworthy of being named as a privilege of value. It would be better*! to restore the censorship of a despotism than to assume to give a liberty which can only be accepted under a responsibility that is always threatening and may at any time be ruinous. A caution in advance after despotic methods would be less objectionable than a caution in damages after in good faith the privilege had been exercised. No public discussion of important matters involving the conduct and motives of individuals could possibly be at the same time valuable and safe under the rules for which the plaintiff contends. It is a plausible suggestion that strict rules of responsibilty are essential to the protection of reputation; but it is most deceptive, for every man of common discernment who observes what is taking place around him, and what influences control public opinion, can not fail to know that reputation is best protected when the press is free. Impose shackles upon it and the protection fails when the need is greatest. Who would venture to expose a swindler or a blackmailer, or to give in detail the facts of a bank failure or other corporate defalcation, if every word and sentence must be uttered with judicial calmness and impartiality as between the swindler and his victims, and every fact and every inference be justified by unquestionable legal evidence? The undoubted truth is that honesty reaps the chief advantages of free discussion; and fortunately it is honesty also that is least liable to suffer serious injury when the discussion incidentally affects it unjustly. . . . In what I say. in this case I advance no new doctrines, but justify every statement of principle on approved authorities. It will be freely admitted that there are decided cases from which a different argument may be constructed, but it is affirmed that they are no longer deserving of credit if they ever were. The gradual and beneficial modification of the law of libel is shown in Wason v. Walker, L. R. 4 Q. B. 73, and in so far as it has been modified it has been made more consistent with just reason. While it is admitted that the public press is often corrupt and often reckless in dealing with private reputations, it is at the same time affirmed that the duty of its conductors to . abstain from such misconduct is no plainer than is the obligation of the authorities to refuse to impose penalties when in the exercise of a just independence they make use of their columns for the exposure of public wrong-doers to public condemnation. The law, justly interpreted, is not chargeable with the inconsistency of tempting conductors of the press with a deceptive pretense of liberty, and then punishing them in damages if they act upon the assumption that the liberty is genuine.” (Pages 382-384.)
If it be said that this argument contains an element of prophecy, it may be replied that it will support the •’ liberal rule as well as the same kind of prophecy in the Hallam case supports the narrow rule. The Hallam case quotes the following discrimination of the two rules made by Lord Chancellor Herschel, in Davis v. Shepstone, 11 App. Cas. (Eng.) 187:
“There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction can not be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment' upon or criticize, even with severity, the acknowledged or approved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.” (Page 190.)
This statement is one of elucidation merely, and furnishes no reason for a choice between the rules. It may be observed, however, that the decisions in England are in great conflict upon the question whether fair comment is a branch of the law of privilege. Only last year a writer in the Law Quarterly Review (vol. 23, p. 97) called attention to this fact, and expressed the hope that the case of Thomas v. Bradbury, Agnew & Co., Limited, (1906) 2 K. B. 627, might be taken to the House of Lords, so that the defense of fair comment might be reviewed and placed upon some logical basis. It may be observed further that the distinction between comment and statements of fact can not always be clear to the mind. Expression of opinion and judgment frequently have all the force of statements of fact, and pass by insensible gradations into declarations of fact. In England fair comment includes the inference of motives, if there be foundation for the inference. (Hunter v. Sharpe, 4 Fost. & F. [Eng.] 983; Campbell v. Spottiswoode, 3 B. & S. [Eng.] 769.) In the latter case Mr. Chief Justice Cockburn said:
“I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct, so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable.” (Page 775.)
This doctrine is repudiated in Hamilton v. Eno, 81 N. Y. 116, and Negley v. Farrow, 60 Md. 158, 45 Am. Rep. 715, both cited in support of the Hallam decision. What is a charge of intoxication — an inference from conduct and appearances, and therefore fair comment, or the statement of a fact? What is the difference between a charge of intoxication and the following:
“Having appearances which were certainly consistent with the belief that they had imbibed rather freely of the cup that inebriates. Their condition in the chapel also led one to such a conclusion.” (Davis v. Duncan, L. R. 9 C. P. [Eng.] 396.)
In England this statement is fair comment. In New York, no matter how strongly appearances and conduct may justify the inference, a charge of intoxication made against a public officer must be fully proved; (King v. Root, 4 Wend. [N. Y.] 114, 21 Am. Dec. 102.) In keeping plain the distinction between comment and statements of fact the courts of some of the states leave the law very much in the attitude of saying to the newspaper: “You have full liberty of free discussion, provided, however, you say nothing that counts.”
The Hallam case quotes the supreme court of Ohio in opposition to the liberal doctrine, as follows:
“We do not think the doctrine either sound or wholesome. In our opinion, a person who enters upon a public office, or becomes a candidate for one, no more surrenders to the public his private character than he does his private property. Remedy by due course of law, for injury to each, is secured by the same constitutional guaranty, and the one is no less inviolate than the other. To hold otherwise would, in our judgment, drive reputable men from public positions, and fill their places with others having no regard for their reputation, and thus defeat the object of the rule contended for and overturn the reason upon which it is sought to sustain it.” (The Post Publishing Co. v. Moloney, 50 Ohio St. 71, 89, 33 N. E. 921.)
Manifestly a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office, and the liberal rule requires no more. But in measuring the extent of a candidate’s profert of character it should always be remembered that the people have good authority for believing that grapes do not grow on thorns nor figs on thistles. The other arguments furnished by the Ohio quotation have already been considered. The Hallam case contains nothing further worthy of note.
Another decision much approved, frequently quoted, and confidently proposed for consideration by the plaintiff here, is that in the case of Upton v. Hume, 24 Ore. 420, 33 Pac. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863. The narrow rule is stated clearly, and authorities for it are cited. The only reasons urged against the rival rule are the old ones — sensitive and honorable men would eschew politics, yellow journalism would run riot, candidates would be exposed to the malignity of party strife — and this new one:
“The only safe evidence of a man’s intentions are his acts, and if he accuses another of a crime he must conclusively be presumed to have intended to injure him.” (Page 432.)
The doctrines of the common law relating to malice seem to the Delaware court, also, to be of the utmost importance in finding out what the true rule of privilege ought to be. (Star Publishing Co. v. Donahoe [Del. 1904], 65 L. R. A. 980.)
With all due deference to Upton v. Hume, the remarks quoted, read as if they had been written in the midst of the fog of fictions, inferences and presumptions which enshroud the law of libel. Facts and the truth never have been much in favor in that branch of the law. Its early use as a weapon and shield of caste and arbitrary power would have been impaired. Sup-' pose a serious charge to be made: By a fiction it is presumed to be false. By a fiction malice is inferred from the fiction of falsity. By a fiction damages are assumed as the consequence of the fictions of malice and falsity. Publication only is not presumed, and until recent times the offer to show the truth of the charge as having some bearing upon liability was a sacrilegious insult: to this beautiful and symmetrical fabric of fiction. Then a defendant was made to suffer additional smart for venturing to' obtrude the truth as a defense if, although his proof were abundant, he barely failed, in the opinion of the jury, to make out a preponderance.' It is, however, in the field of malice, where the rule stated in the quotation lies, that truth and fact are most superfluous. In the first place it is said that malice is the gist of the action for libel. This is pure •fiction. It is not true. The plaintiff makes a complete •case when he shows the publication of matter from which damage may be inferred. The actual fact may be that no malice exists or could be proved. Frequently libels are published with the best of motives, or perhaps mistakenly or inadvertently but with an utter absence of malice. The plaintiff recovers just the same. f Therefore “the gist of the action” must be taken out of the case. This is done by another fiction. It . is said that of course malice, does not mean the one thing 'known to fact or experience to which the term may ■apply, but it is just a legal expression to denote want <of legal excuse. In this state a statutory definition of •libel making malice an essential ingredient as at the ■common law compels this court to say-that the inten tional publication of libelous matter implies malice, whatever the motive may be. (The State v. Clyne, 53 Kan. 8, 35 Pac. 789.) So, a fiction was invented to meet an unnecessary fiction which became troublesome, and the courts go on gravely ascending the hill for the purpose of descending, meanwhile filling the books with scholastic disquisitions, verbal subtleties and refined distinctions about malice in law, malice in fact, express malice, implied malice, etc., etc.
Now, what is the fact? Instead of malice being the gist of the action it may come into a libel case and be of importance in two events only: to affect damages, and to overcome a defense of privilege. If the occasion be absolutely privileged, there can be no recovery. If it be conditionally privileged, the plaintiff must prove malice — actual evilmindedness — or fail. When it comes to this proof there is no presumption, absolute or other-wise, attaching to a charge of crime. The proof is made from an interpretation of the writing, its malignity or intemperance, by showing recklessness in making the charge, pernicious activity in circulating or repeating it, its falsity, the situation and relations of the parties, the facts and circumstances surrounding the publication, and by other evidence appropriate to a charge of bad motives, as in other cases.
Nothing else in Upton v. Hume requires comment, and no decisions more persuasive than those discussed have been cited or have fallen under the observation of the court. Speaking generally, it may be said that the narrow rule leaves no greater freedom for the discussion of matters of the gravest public concern than it does for the discussion of the character of a private individual. It is a matter of common experience that whatever the instructions to juries may be they do not, and the people do not, hold a newspaper publisher guilty and brand him a calumniator if in an effort in good faith to discharge his moral duty to the public he oversteps that rule. In a political libel suit, if a non political jury be secured, the newspaper-usually gets a verdict if, in the language of Balch’s case, “the whole thing was done in good faith.” (31 Kan. 465.) Otherwise damages are assessed. Although he adhered to the narrow rule, Sir Frederick Pollock, when chief baron of the exchequer, came near stating its rival when he said:
“I think it quite right that all matters that are entirely of a public nature — conduct of ministers, conduct of judges — the proceedings of all persons who are responsible to the public at large, are deemed to be public property; and that all bona fide and honest remarks upon such persons, and their conduct, may be made with perfect freedom, and without being questioned too nicely for either truth or justice.” (Gathercole v. Miall, 15 M. & W. [Eng.] 318, 331.)
The liberal rule offers no protection to the unscrupulous defamer and traducer of private character. The fulminations in many of the decisions about a Telamonian shield of privilege from beneath which scurrilous newspapers may .hurl the javelins of false and malicious slander against private character with impunity are beside the question. Good faith and bad faith'are as easily proved in a libel case as in other branches of the law, and it is an every-day issue in all of them. The history of all liberty — religious, political, and economic — teaches that undue restrictions merely excite and inflame, and that social progress is best facilitated, the social welfare is best preserved and social justice is best promoted in presence of the least necessary re'v.,straint.
ÍAside from other reasons for adhering to it, the court is of the opinion that the rule in Balch’s case accords with the best practical results obtainable through the law of libel under existing conditions, that it holds ■the balance fair between public need and private right, and that it is well adapted to subserve all the high interests at stake — those of the individual, the press, and the public.
The plaintiff argues that the defense of privilege was destroyed by the fact that copies of the defendant’s newspaper circulated in other states, complains of the instructions given upon the subject, and insists that the instruction offered by him should have been given. The instruction given was correct, and follows the rule announced by this court in Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050, 48 L. R. A. 236. There a matter of interest to communicants of a church was published in the church papers in Indiana,, Ohio, Texas, and Nebraska. It was inevitable that they should be read by people of other denominations. The syllabus reads:
“Where the publication appears to have been made in good faith and for the members of the denomination alone,' the fact that it incidentally may have been brought to the attention of others than members of the church will not take away its privileged character.”
This accords with the general rule stated in volume 25 of the Cyclopedia of Law and Procedure, at page 387. (See, also, Hatch v. Lane, 105 Mass. 394; Mertens v. Bee Publishing Co., 5 Neb. [unoff.] 592, 99 N. W. 847.) In the cases of State of Iowa v. Haskins, 109 Iowa, 656, 80 N. W. 1063, 47 L. R. A. 223, 77 Am. St. Rep. 560, Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 403, 59 Am. St. Rep. 853, and Sheftall v. Central Railway Co., 123 Ga. 589, 51 S. E. 646, language is used from which it might be inferred that privilege will be destroyed if the communication should reach the eyes of others than persons interested. This would be the end of privilege for all newspapers having circulation and influence. Generally, the publication must be no wider than will meet the requirements of the. mófál or social duty to publish. If it be designedly or unnecessarily or negligently excessive, privilege is lost.- But if a state newspaper published primarily for a state constituency have a small circulation elsewhere it is not de prived of its privilege in the discussion of matters of state-wide concern because of that fact.
The second subject propounded for consideration at the beginning of this opinion is one of practice which goes to the efficiency of the administration- of the law as a means of justice.. Did the special finding of the jury that the evidence does not show that the plaintiff suffered any damage from the article in the defendant’s newspaper render errors regarding instructions upon other matters immaterial ? Under the constitution the appellate jurisdiction of this court is limited to the review of errors committed by the trial court from which the record comes. It can not consider cases de novo and decide them according to its own notions of the law and evidence. It can not take new evidence or pronounce any judgment except that the trial court did right or wrong in whole or in part. It can not direct what judgment the trial court shall enter unless the facts be found or agreed to. It does not have the constitutional power to do generally what ought to have been done by judge and jury at the trial, and so end the litigation, and the legislature can not, under the constitution, confer such power upon it. (In re Burnette, 73 Kan. 609, 85 Pac. 575.) However, before the territory of Kansas became a state the territorial legislature enacted the following statute:
“The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” (Civ. Code, § 140; Laws 1859, ch. 25, § 148.)
Before the territory became a state the territorial supreme court adopted the rule that error will not be presumed, but must be affirmatively shown. (F. H. Otis v. Ann C. Jenkins, Administratrix, McCahon [Kan.] 87.) That statute and that rule have been in force ever since. They are still in force, and have been applied in multitudes of decisions. It would be too much to say that the spirit of the statute and of the rule has always been observed. It has been lost sight of often enough. Sometimes technicality may have been utilized in an effort to right palpable wrong. Very often it is most perplexing to determine what is substantial. But it is the constant purpose and endeavor of the court to obey the statute and to observe the rule. It must do so in this case precisely the same as if it were one small enough to have originated before a justice of the peace.
“If it be conceded that the rules of procedure have been violated in this case the judgment can not for that reason alone be overturned. The legislature has enjoined upon this court the duty of looking beyond defects and errors in pleadings and proceedings to ascertain if they did in fact affect the substantial rights of the party complaining of them. Fixed rules are to be observed and enforced, but not merely for the purpose of vindicating them. Harm must result from a wrong decision or it can not be reversed.” (Hopkinson v. Conley, 75 Kan. 65, 67, 88 Pac. 549.)
For obvious reasons the instruction relating to privilege required consideration on its-merits. It would be' pure speculation to say that other instructions given which do not relate to damages led the jury to make the special finding. The subject of damages was treated independently of all other issues, and stood out as a separate and distinct branch of the ease; and the court would be obliged to enter upon a “quest for error” indeed to be able to discover that the jury did not understand the question and by their answer merely meant to say that under the instructions the plaintiff had no cause of action for damages. Error must be made to appear in some affirmative way. It can not be presumed. If the plaintiff suffered no damage, manifestly it is of no consequence whatever what valuation should be used in the purchase of bonds for the school fund, what treasury transactions are illegal, or what the law of conspiracy may be. The .substantial rights of the plaintiff could not be affected by erroneous statements of the law upon those questions.' >
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The principal questions presented in this case are: (1) Was the order of the county superintendent, .affirmed by the board of county commissioners, detaching the territory from school district No. 116 and attaching it to another school district, valid? (2) If this order was valid, it being conceded that each member of the school board at the time the order was made, and thereafter, was a resident of the detached territory, did this ipso facto create a vacancy in each of the offices of such school board?
The plaintiffs contend that the county superintendent had no authority to issue the notice of the hearing on the application for a change of boundaries of the school district, for the reason that no written petition had been presented to him requesting the same. It was said in The State v. Secrest, 60 Kan. 641, 57 Pac. 500:
“No express provision is made for a petition to the county superintendent, but written' notice of the proposed change of districts is specifically required, and therefore the statute plainly contemplates that a petition shall be made for the proposed change, and this is the basis of the notice given by the county superintendent.” (Page 645.)
Assuming that the word “petition,” as used in that case, means a written petition, the county superintendent in this case acted irregularly in issuing the notice upon a verbal request. The record, however, discloses that a proper notice was issued and properly posted; also, that a large number of the residents of the territory proposed to be detached appeared-at the hearing, and upon receiving an adverse decision appealed from the action of the county superintendent to the board of county commissioners, which board affirmed the decision of the county superintendent. There is no question but that all the parties concerned fully understood the issue involved and had a full and fair opportunity to be heard; that after a full hearing was had the order was made, was appealed from, and affirmed. The proceeding was irregular in its inception, but not void. A portion of section 6121 of the General Statutes of 1901 reads:
“If in the formation or alteration of or refusal to form or alter school districts any person or persons shall feel aggrieved, such person or persons may ap peal to the board of county commissioners, who shall confer with the county superintendent, and their action shall be final.”
Great precision and formality, especially in the absence of an express requirement of statute, should not be held imperative in quasi-j udicial proceedings of this character. The order of the county superintendent as affirmed is valid and is final. Nor can the plaintiffs interfere by injunction with the management and control of the school affairs of school district No. 116, in which they no longer have an interest. (School District v. Gibbs, 52 Kan. 564, 35 Pac. 222.)
As to whether a detachment from the district of the territory in which a school-district officer resides creates a vacancy in the office, the authorities are not uniform. (See 23 A. & E. Encycl. of L. 426.) In the early case of Williams v. School District in Lunenburg, 38 Mass. 75, it was said in the syllabus as reported in 32 Am. Dec. 243, that a clerk of the school district “is competent to act as such, although he has removed into an adjoining district in the same town, and another has been chosen in his stead, but not sworn.” The reason for the decision was set forth in. the following excerpt from the opinion:
“The Revised Statutes, c. 23, § 27, provide that the district shall choose a clerk, to be sworn, etc., and who shall hold his office until another shall be chosen and sworn in his stead. The manifest intent seems to have been that there should at all times be a recording officer, charged with the duty of keeping a record of the proceedings and votes of the district. In this case the district had proceeded to choose another, but until he was qualified we think, by force of the statute, the former clerk was competent to act.” (38 Mass. 80.)
In Salamanca Township v. Wilson, 109 U. S. 627, 3 Sup. Ct. 344, 27 L. Ed. 1055, in the syllabus it was said:
“The removal of a treasurer of a township in the state of Kansas from the limits of the township into the limits of an adjoining township, without resigning his office, does not vacate the office .so as to invalidate service of summons upon him in his official capacity for the purpose of commencing an action ag'ainst the township.”
In the opinion it was said:
“There is nothing in the constitution or laws of Kansas which requires a township treasurer to be a resident of, or voter in, the township when elected or qualified; neither is there anything which vacates the office if the officer removes from the township during the term for which he was elected. Justices of the peace are township officers, and as‘to them it is expressly provided that they ‘shall reside and hold their office in the township for which they shall have been elected.’ Sec. 4 (5970), Dassler’s Comí). Laws (1879), 978. As no similar provision is made in respect'to any other township officer, the implication necessarily is that actual residence in the township is- not required of them. Expressio unius ~est exelusio alterius.” (Pa’ge 628.)
This decision is based expressly upon the absence of any requirement in the statute that the treasurer of a township should be a resident of the township when elected and qualified. Also it expressly implies that if there were such a requirement in the statute the rule would be different. In passing it may be said that soon after the publication of this decision the statute of Kansas was amended in the respect suggested. The school laws of Kansas (Gen. Stat. 1901, §§ 6125, 6127), in effect, limit the choice of director, clerk and treasurer of a school district to such electors thereof as shall have been in good faith residents of the district for thirty days next prior to the election.
As .to whether the detachment of the territory in which an officer lives constitutes a removal of residence, this court, in Frazer v. Miller, 12 Kan. 459, has settled the policy of this state. In the syllabus it was said:
“Where by the division of a township one of its two justices is thrown into a new township, there is created a vacancy in the office of justice of the original township, which may be filled by appointment.”
In the opinion, by Mr. Justice Brewer, it was said:
“He was removed from the township, not by his own volition, but by the act of partition. The result is the same, though the manner of accomplishment is different.” (Page 461.)
We conclude that when the detachment of the territory in which all the members of the old school board .resided became final by the affirmation of the decision -of the county superintendent by ,the board of county -commissioners the offices of the director, treasurer and 'derk of school district No. 116 immediately became vacant ipso facto. The incongruity of a contrary holding is apparent when it is considered that the entire business management of the school district would thereby "be turned over to officers who derive no emoluments from their offices and who have no interest in the af■fairs of the district. Making the school district a party plaintiff to this suit, in which it could in no event de.rive a benefit therefrom, is a more specific illustration.
Were the contrary view the law, however, this suit •could not be maintained by the plaintiffs. A proceeding in quo warranto and not a suit for an injunction is the proper remedy for the illegal usurpation of an office. ■
Much is said in the briefs of the violating or ignoring of the temporary injunction issued in the case by the probate judge. Even if the probate judge had jurisdiction to issue a temporary injunction, which this writ purports to be (see The State v. Johnston, ante, p. 615), the question of a contempt thereof is not involved in this suit.
The district court determined the issues in this case in favor of the defendants, and the judgment is affirmed. The costs in this court are taxed to the plain-. tiffs other than school district No. 116. | [
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The opinion of the court was delivered by
Mason, J.:
Comfort H. Larimore brought an action against John C. Miller charging him with obstructing a natural watercourse flowing from her land to his, and asking for damages for injury thereby occasioned to her crops and for a mandatory injunction for the removal of the obstruction. A demurrer to the evidence of the plaintiff was sustained, and she prosecutes error.
The principal controversy is whether there was any evidence tending to show the existence of a watercourse at the point on the defendant’s land where he erected an embankment. The plaintiff’s land, which measures a half mile from north to south, lies half a mile north of the defendant’s. She claims that a watercourse comes down from the north and crosses her land and the intervening tract to that of the defendant, over which it extends, discharging into the Republican river.. The evidence clearly tended to establish that a stream, of water fed in part by springs and in part by the. drainage from a considerable area, and having all the essential attributes of a watercourse, flows from the-north toward the plaintiff’s land. The defendant practically concedes this, but asserts that the evidence not. only fails to show that the stream retains its character-as a watercourse until it reaches his land but discloses affirmatively that it loses that character by spreading-out over level ground far above his .northern boundary..
It is not necessary to review the evidence in detail.. There was testimony that the stream referred to, which, some of the witnesses called a creek, crosses the plaintiff’s land and the intervening tract and goes upon the; land of the defendant; that there is a depression for-the full length of this course, through which the water-at times flows, and which was variously spoken of as a “draw,” a “ravine,” a “gully,” a “ditch,” and a “channel” (the witness who used that term saying he meant, by it “a place where water runs- — -a low place with bank® on each side”) ; that when there is no water in the-stream one can tell where its course and.its banks are;; that it then looks “just like any creek that had went-dry in the dry spell.” Some of these statements were-modified and explained upon cross-examination so far-as to impair their force, but not so far as to eliminate them altogether. There was also testimony of a contrary tendency, but it was not given by the plaintiff' herself; and, even if it was absolutely inconsistent with, the existence of a watercourse on the defendant’s land,, it only presented an issue of fact to be determined upon, conflicting evidence. It did not justify'a decision as a. matter of law that there was an entire failure to support the allegations of- the petition.
The defendant was called by the plaintiff as a witness. He testified that the embankment sought to be-enjoined was erected, in pursuance of an agreement with him, by two other landowners whose property was to be benefited by.it — he furnishing the land and they doing the work. He now contends that as these other persons were interested in the subject-matter of the litigation and as their rights would be affected by the judgment their presence was necessary to a determination of the controversy, and their absence warranted the court in sustaining the demurrer to the evidence. In support of this contention he cites State of Kansas v. Anderson, 5 Kan. 90, Carpenter, Treas., v. Hindman, 32 Kan. 601, 5 Pac. 165, McCarthy v. Marsh, 41 Kan. 17, 20 Pac. 479, City of Anthony v. The State, ex rel., 49 Kan. 246, 30 Pac. 488, and U. T. Rld. Co. v. Rld. Comm’rs, 52 Kan. 680, 35 Pac. 224. In these cases injunctions were asked against public officers without bringing into court the only persons who had any actual interest in the performance of the acts sought to be enjoined. The court held that no final injunction ought to be granted under such circumstances, because there could be no real litigation without adverse parties. Here, however, a different situation is presented. The defendant is personally concerned in resisting the plaintiff’s demand. The question whether other persons were necessary parties was one proper to have been raised by answer. Not having been so raised, it was waived so far as the defendant could waive it. (Civ. Code, § 91.) The code,- however, provides that “when .a determination of the controversy can not be had without the presence of other parties, the court must order them to be brought in.” (Civ. Code, § 41.) And it is held that under this provision it is the duty of the -court, of its own motion, and notwithstanding the action of the parties, to require the bringing in of any persons whose rights will be prejudiced by a judgment, and that where this is not done a reversal may 'be had at the instance of a party. (Osterhoudt et al. v. B’d Sup’rs, etc., et al., 98 N. Y. 239; Steinbach v. Prudential Ins. Co., 172 N. Y. 471, 65 N. E. 281; Wheeler v. Lack, 37 Ore. 238, 61 Pac. 849; Reger v. Gall, 54 W. Va. 373, 46 S. E. 147; Emerson and another v. Schwindt and another, 108 Wis. 167, 84 N. W. 186.) If the persons who constructed the embankment were-necessary parties to the final determination of the case it would doubtless have been proper for the court,, whenever this fact was brought to its attention, to-order the plaintiff to make them parties, under penalty of a dismissal of the action if she should refuse or neglect to do so. But the demurrer to the evidence presented no question of defective parties, and to sustain, the ruling thereon upon such a ground would be to bar the plaintiff’s right of recovery because of a defect to which her attention had not been called and which she was given no opportunity to remedy.
The demurrer was general, and for the reasons stated, should have been overruled. It is therefore not necessary to decide whether there was any evidence to support the claim for damages. . The injury to the crop seems to have resulted principally from the river overflowing its banks, but may have been due in part to the embankment complained of. The crop was grown either by a tenant paying rent in kind or by an occupant on shares — “a cropper”; — the evidence does not clearly show which. (See 18 A. & E. Encycl. of L. 173, 176; 24 Cyc, 1468, 1471.) Without the issue being more sharply presented it is not thought expedient to decide whether and to what extent the owner might recover under either condition.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Graves, J.:
The question of fact involved in this case is whether or not the plaintiffs found a purchaser for the defendant’s farm who was ready, able and willing to buy the place for the price and upon the terms and conditions given by the defendant to her agents. The letters hereinbefore given constitute the contract between the parties. From these it clearly appears that the lowest price for which the defendant agreed to sell the place was $11,800, or $11,200 net to her; $6200 to be cash, balance due in five years at 6 per cent, interest, to be secured by mortgage on the place. This offer did not include the crop or any part of it, and did not include any expense to her for commission, attorney’s fees, abstract or preparation of papers. Nothing was stated concerning insurance. The plaintiffs made a written contract with one J. F. Syster, in which he agreed to pay $500 cash, $7800 March 1, 1906, and secure the remainder, $3500, by a mortgage on the farm due five years after date, with interest at 6 per cent, per annum, payable semiannually, with privilege to pay all or any part at any interest payment. The defendant was obligated to furnish all necessary papers, deed and abstract, assign her insurance policies, and to surrender one-third of the growing crops. It seems clear that this falls far short of being a purchaser who is ready, able and willing to purchase upon the terms fixed by her.
In argument counsel practically concedes that such a purchaser was not produced, but insists that the contract made by the plaintiffs with the .purchaser, although different from the one they were authorized to make, was consented to and ratified by the defendant, and she thereby became liable for a commission. In support of this argument reference is made to her letter of January 16, 1906, in which occur the words: “I congratulate you upon making sale.” This fragment of a sentence is said to be sufficient to show that defendant accepted the unauthorized conditions of the contract inserted by the plaintiffs, and that then and there the contract of sale was closed to her satisfaction. This conclusion ignores the other language used in the same letter; it disregards the letter written by her at the same time to Mr. Southworth, and other material features of the transaction. It will be seen that in the same letter, immediately following the words quoted, it is stated that she has referred the matter to Mr. Southworth, who will représent her in the matter. It further appears that she at the same time transmitted the contract to Southworth, with a lettér directing him not to deliver the contract until certain matters mentioned by her were satisfactorily adjusted. The difference between this contract and the one authorized by her is so material and important that her consent thereto should not be found to exist until established by some tangible evidence.
The idea of consent on her part is sought to be strengthened by a letter which she wrote to her tenant on February 22,1906. The force of this letter is broken somewhat by the circumstances • under which it was written. The sale is claimed to have been made January 8. The contract was received by the defendant, and by her sent to Southworth, January 16. On January 22, and again on January 27, the plaintiffs wrote to the defendant urging her to write to Coffenberger, her tenant, for the purpose of inducing him to release his lease. On February 22 she wrote this letter. In it, however, while speaking as though a sale had taken place, she uses this language: “I am assuming that the sale is made and that the deal will go through, but as yet no money has been paid nor papers passed, and one is not sure of anything nowadays until the cash is in one’s hand.”
If a sale had been made on January 8 satisfactory to defendant, why this effort more than a month afterward to have the defendant endeavor to induce her tenant to release his lease? It is quite evident that the plaintiffs did not regard their commission as earned until after the sale had entirely failed. It is equally clear that the defendant did not consent to the contract made with the alleged purchaser. On the contrary the evidence, when considered as a whole, clearly and conclusively shows that she refused to consent thereto. Great latitude is given to juries in the determination of questions of fact, and a verdict will not be disturbed when- there appears to be any evidence upon which it can rest. This rule, however, can not be extended so as to permit important rights to be disposed of upon the assumption that there is some evidence to justify it, where the only proof consists of fragmentary sentences taken from the body of a written instrument and disassociated from the other language of the instrument, when the language so taken is thereby rendered susceptible of a meaning materially different from that which it would have if left in its place and considered with the instrument and transaction as a whole. The language “I congratulate you upon making sale,” taken from the body of the letter of January 16, 1906, and a similar expression in defendant’s letter' written to her tenant February 22, 1906, constitute the sole evidence upon which plaintiffs rely to establish the assent of the defendant to their unauthorized contract. We do not think such disconnected expressions can be considered as any evidence upon which to rest a verdict. The demurrer to the evidence should have been sustained.
The judgment of the district court is reversed, with directions to grant a new trial and proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from an order denying relief under K. S. A. 60-1507. Relief was denied by the district court without a plenary hearing for the reason that the files and records of the case conclusively showed the petitioner was entitled to no relief. This appeal raises no new questions of law and we affirm the order of the district court on the basis of prior decisions of this court.
On March 12, 1968, the appellant with his court appointed attorney, Mr. Appling, entered pleas of guilty to robbery and felonious assault. Immediately prior thereto the state dismissed a third count of kidnapping at the suggestion of appellant’s attorney.
The record at plea and sentencing contains the following colloquy between the court and Mr. Barnes:
“The Court: Count No. 2 charges that on or about the 22nd of January, this year of taking — charges you with on that date, taking an automobile from one James E. Ferguson, in other words, robbery in the first degree. How do you plead? Guilty or not guilty?
“Mr. Barnes: Guilty.
“The Court: You are pleading guilty, because you are guilty?
“Mr. Barnes: Yes, sir.
“The Court: You actually took this Plymouth automobile by force or threat?
“Mr. Barnes: Yes, sir.
“The Court: In the third count you are charged with assault with intent to maim or rob James E. Ferguson on the same date. How do you plead to that count? Guilty or not guilty?
“Mb. Barnes: Guilty.
“The Court: You are pleading guilty because you are guilty?
“Mr. Barnes: Yes, sir.
“The Court: In other words, you did stab James E. Ferguson with a knife?
“Mr. Barnes: Yes, sir.
“The Court: Mr. Appling, do you have any legal reason why the Court should not pronounce sentence at this time?
“Mr. Appling: No, Your Honor.”
The motion to vacate filed by appellant listed no witnesses by whom his conclusionary claims might be proved.
On appeal he relies on four points.
His claim that the court erred in not granting an evidentiary hearing in his presence is without merit under the rules laid down by this court in Fields v. State, 195 Kan. 718, 408 P. 2d 674 and Stiles v. State, 201 Kan. 387, 440 P. 2d 592.
His claim that the court erred in finding his plea was understandingly and voluntarily made is without merit under the rules laid down by this court in State v. Byrd, 203 Kan. 45, 453 P. 2d 22.
His claim that the court erred in not finding there was ineffective assistance of counsel is without merit under rules laid down by this court in Davis v. State, 197 Kan. 576, 419 P. 2d 832.
His final claim that the court erred in not appointing counsel at the hearing on the motion to vacate is likewise disposed of by Davis v. State, supra, and Stiles v. State, supra.
The claims made in appellant’s original motion to vacate which are not briefed or argued in this appeal are deemed abandoned under the rules stated in Basker v. State, 202 Kan. 177, 446 P. 2d 780.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over a workman’s compensation for an injury resulting from an occupational disease.
The appellant, James Coleman, began work for the appellee, Rockwell Manufacturing Company, on September 23, 1963. At that time his general health was good and he had no skin problems. He commenced work as a sweeper, then progressed to arc air welding, chipper, grinding, working in powder wash and electrical arc welding.
The appellant worked until December 23, 1966. He had first observed a rash appearing on his body about 2 or 3 months before December 23, 1966. At that time the rash appeared on his face. He was then engaged in chipping and grinding. On December 23, 1966, he was sent to Dr. Spencer Fast who treated him. He returned to work still under treatment by Dr. Fast who referred him to Dr. Charles Dennie, a skin specialist in Kansas City, Missouri. During the course of treatment, Dr. Fast indicated to the claimant his condition was caused by the dust and different things in the factory. He had appellant stop work.
Appellant was paid temporary total disability beginning March 11, 1967, and ending January 31, 1968, a period of 47 weeks.
A claim was filed and a hearing was held before the Workmen s Compensation Examiner on January 31,1968. The examiner allowed appellant compensation for 47 compensable weeks of temporary total disability at a weekly rate which is not in dispute, and found all medical expenses had been paid. He also found that appellant’s disability ended on January 31, 1968. This left no further payments due. The award was reviewed and approved by the Director of Workmen’s Compensation. An appeal was then taken to the district court which entered an order reading in part as follows:
“The Court having read the entire record, having heard oral argument of counsel and being otherwise advised in the premises finds that the Court should adopt as its findings the stipulations and findings of Dan E. Turner, Workmen’s Compensation Examiner, in his award dated January 24, 1969, as approved by the Director of Workmen’s Compensation in his order dated August 11, 1969. The Court further finds that an award of compensation should be made in favor of the claimant and against the respondent and its insurance carrier, American Mutual Liability Insurance Company, for 47 compensable weeks of temporary total disability at the rate of $42.00 per week. That on January 31, 1968, the claimant’s disability ended and the claimant is entitled to no further compensation. The Court further finds that all medical expenses incurred up to January 31, 1968, by the claimant for examination and treatment be paid for by the respondent. The Court finds that claimant is not entitled to further medical treatment. . . .”
The appellant contends here that the district court erred in not allowing total permanent disability benefits because the appellees' offered no evidence to refute the evidence presented by him.
Appellant also contends that the testimony of the workman is sufficient to support a claim for permanent total disability and that medical testimony is not necessary.
If there is any merit in appellant’s contention it must be addressed to the trial court, not this court on appeal.
This court, on an appeal from a decision in a workmen’s compensation case, is limited to the consideration of matters of law. It cannot weigh evidence or consider the veracity of the witnesses. Its concern with the facts is limited to ascertaining whether the record contains any evidence which on any theory of credence or want of credence would justify the trial court’s findings of fact. (Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 514, 313 P. 2d 725; Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108; Ratzlaff v. Friedeman Service Store, 195 Kan. 548, 407 P. 2d 513.)
Appellant presented the testimony of two doctors. We will give attention only to the testimony of appellant’s doctor who was a specialist in dermatology. He testified on cross-examination:
“Q. Doctor, in your history it was disclosed that Mr. Coleman had not been exposed to whatever irritant might have caused his original flare-up for over a year? A. Correct.
“Q. Would you feel that a year’s time is sufficient for him to have fully recovered from any contact dermatitis as opposed to an irritant — I mean as-opposed to an allergic dermatitis? A. I think he would have fully recovered from either one in a year’s time.
“Q. Do you feel that Mr. Coleman, if he chose to leave his present occupation as a minister, could return to general physical labor without danger of a flare-up of this particular type of contact dermatitis or allergic dermatitis that he may have had? A. Yes, I think he could return to any kind of work and be free of a flare-up of the original dermatitis that he suffered over two years ago.”
Although there may have been some testimony favorable to appellant we are forced to conclude that there was ample evidence to support the findings and conclusion of the district court.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment of the district court granting custody of a five months old baby girl to the father following a divorce decree.
The appellant does not appear to be requesting any change in the decree granting the divorce but dwells on the divorce proceedings for the purpose of showing the arbitrary and prejudicial conduct of the trial judge in the entire matter.
The general thrust of appellants contentions is that—
“The demeanor of the trial court throughout the trial shows that the trial court abused its discretion and was unduly prejudiced against the plaintiff and that this prejudice materially hindered the plaintiff’s receiving substantial justice.”
Insofar as the above contention is to be applied to the decree granting custody of the five months old baby girl to the father rather than to the mother, we are inclined to agree with appellant.
Before we discuss the facts, the procedure at the trial and the rulings of the trial court, it would perhaps be helpful if we discussed the general rule of law applicable in the determination of child custody.
When a situation exists such as is here presented, the paramount consideration of the trial court is the welfare and best interest of the child. The trial court is in the best position to judge whether the best interests of the child are being served and in the absence of the abuse of judicial discretion this court will not disturb a trial court’s judgment. (Bergen v. Bergen, 195 Kan. 103, 403 P. 2d 125; Whitebread v. Kilgore, 193 Kan. 66, 391 P. 2d 1019; Hazelwood v. Hazelwood, 190 Kan. 493, 376 P. 2d 815.) However, where an abuse of discretion is affirmatively shown by the record, this court will not hesitate to reverse or change the order of the trial court. (Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746.)
It is an elementary rule in this state that if a child is of tender age it almost of necessity must be entrusted to its mother’s care, without weighing unduly what may be some possible shortcomings in her character or conduct. (Janney v. Janney, 159 Kan. 230, 154 P. 2d 131.)
A hearing on child custody requires the careful and conscientious consideration of all material factors in order that courts may exercise sound judicial discretion in the premises. (Prier v. Lancaster, 169 Kan. 368, 219 P. 2d 358.)
Plaintiff and defendant were married September 14, 1966. A child was bom from such marriage December 20, 1968. Plaintiff had three children by a prior marriage. About one month after the child was born to the latter marriage, defendant left the home and took all of the furniture. Plaintiff had to borrow a bottle warmer to feed the baby. The welfare agency then helped her start a new home. During all of the time referred to herein defendant had contributed but twenty or thirty dollars to the support of plaintiff and the child.
The above facts are not in dispute.
On March 28, 1969, plaintiff filed suit for divorce and custody of the child. Defendant filed an answer and cross-petition asking for divorce from plaintiff and custody of the child.
Trial was commenced on May 23, 1969, following an announcement by the trial court that—
“After a short pretrial conference it developes the divorce itself is not contested in this case. Therefore, the evidence on the divorce should be minimum. . . .”
The plaintiff testified to the facts heretofore presented and further that the defendant had threatened to kill her with a gun. She testified that she was “deadly scared of him.”
Dorothy Plolmes, a witness for plaintiff, corroborated plaintiff’s testimony. She was present when defendant pointed a gun at plaintiff. She had observed black and blue marks on plaintiff while she was living with defendant. She testified that defendant “drinks quite a bit and when he drinks he has a terrible temper.” She was present when defendant moved out the furniture. When he moved the stove, plaintiff had no way of warming the bottle for the month old baby. She further testified that plaintiff took good care of the children, kept them clean and was a fit and proper mother.
The court then advised counsel for plaintiff that any other evidence would be merely cumulative, and that at this time no more evidence was needed on the divorce question.
Thereafter the defendant testified in his own behalf. Defendant stated that he had heard his wife’s request for a divorce and that he agreed a divorce should be granted in this case. He stated that he did not wish to contest the divorce itself.
Defendant was then asked to state his grounds for divorce and over the objections of plaintiff testified what his grounds for divorce would be and claimed his wife caused their fights. He further testified, “I am a highly nervous man.” He had given his wife thirty dollars for support from January 20, to May 23, 1969. He requested the court for custody of his child and stated he had facilities to keep the child in that his aunt had asked him to make his home with her. He said he, his aunt and his mother would care for the child; he could adequately care for the child, and that he never wanted the divorce in the first place. He testified he saw a man enter his wife’s house at 9:30 P. M. on May 3, and not come out before he left at 12:30 A. M. The witness stated he approached his wife and the other man the next day and tried to see his child and was refused.
In the last four months he had received $1,600.00 in wages.
Gladys Adkison testified she was the mother of defendant and that she lives at 602 West 4th, Winfield, Kansas. She stated that she was willing to raise the baby and that she was capable and had adequate facilities. The witness stated she sat with Mr. Adkison in front of his wife’s house, one time only, between 8:00 P. M. and about 5:30 A. M. the next day. At about 12:30 A. M. a man came out, rolled up his car windows and went back inside the house.
On cross-examination the witness stated she was sixty-two years old and had last cared for children thirty-two years ago. She had had six children of her own, five before her divorce. She cared for her own five children for three years after her own divorce until her health went bad and then their father, who was her former husband, took them to raise. She further testified she had been arrested for driving while intoxicated.
All of the witnesses,’ including the defendant, testified that plaintiff was a good housekeeper and that the children were clean and well cared for.
The trial court entered judgment granting the parties a divorce each from the other and decreed that the custody of the infant child be transferred from plaintiff to defendant no later than 8:00 P. M. the date of the decree. It was further ordered that each party pay their own attorney fees. The previous order under which defendant had paid $120.00 on a $200.00 allowance for attorney fees to plaintiff was set aside.
The plaintiff filed a motion for an amendment of findings, amendment of judgment and for a new trial.
Counsel for plaintiff made his own investigation in preparation for presenting the above motion. He attached to his affidavit a signed statement from the aunt of the defendant stating that she was 64 years of age, she did not know the defendant had used her name in the divorce case and that defendant and his mother were not going to live with her because she could not take care of the baby and hold her job. She further stated that she thought the plaintiff should have been given care of the baby.
Plaintiff’s attorney also filed his affidavit to which was attached the written statement of the brother-in-law of defendant’s mother who was to help defendant keep the baby. The statement reads in part:
“During the early or middle part of the 1930’s my brother Ralph Tanner was separated from Gladys [defendant’s mother] and was traveling outside of the State of Kansas as a photographer. During that time Gladys was living in Winfield & had with her the five children that were born to her and my brother, Ralph Tanner. During this period of time my brother would mail to me money for me to give to Gladys for support & the support of their five children.
“During this period of time Gladys was taking very poor care of the children & finally it became so bad that I went & got the children & took them to my mother for her to raise. My mother thereafter raised the children for a number of years & Gladys seldom ever visited them although they lived in Cowley County, Kansas.
“During the time that Gladys had the children before my mother took them to raise, the children were very poorly cared for by Gladys. Their clothes were dirty & they had holes in their shoes, although I was delivering sufficient money each week to Gladys for their support.
“At the time I picked up the five children from Gladys & took them to my mother for her to raise until my brother remarried, Gladys told me she didn’t want the children since she didn’t want to be bothered with them.
“I have been told that Gladys said that she gave up the five children because of her health. This is not true. The reason she gave them up is because she wasn’t taking care of them & didn’t want to be bothered with them. The condition of the children in her care was so bad that I had to take them to my mother’s to raise until my brother remarried.”
Plaintiff’s attorney also filed an affidavit which reads in part:
“That he is one of the attorneys for the plaintiff in the above entitled matter; that he has checked the records of the Winfield Police Department, Winfield, Kansas, and has ascertained that such records reflect that one Gladys Adkison was convicted in the Winfield City Court of Winfield, Kansas, on the charge of drunkenness in 1944; that she was arrested on the charge of driving under the influence of intoxicating liquor and having no driver’s license in Winfield, Kansas, on October 29, 1968; and that the records of the Police Department of Winfield, Kansas, reflect evidence of .19 alcohol content in Gladys Adkison’s blood at the time; and that thereafter said Gladys Adkison was convicted of such charges on November 27,1968, in the Municipal Court of Winfield, Kansas, fined the sum of $100.00, and placed upon probation for a period of one year thereafter with reporting dates to her parole officer on July 8, 1969, and November 12, 1969; at the time of her arrest on October 29, 1968, the said Gladys Adkison was placed in jail at the City of Winfield Jail and remained in jail overnight and was released the following morning; . . .”
At the hearing on the motion for new trial, the law partner of plaintiff’s original counsel argued the matter because original counsel had made the affidavits and thought he might also be required to testify in connection therewith. After the argument the court in substance stated that since the counsel arguing this motion was not the same counsel who tried the case, the court would be required to disregard the arguments of counsel. Thereupon, the court questioned trial counsel on why he did not argue the motion. Trial counsel’s reply was that he was leaving himself available to testify concerning the affidavits filed in support of the motion.
The trial judge, disregarding the arguments of counsel and the uncontradicted affidavits introduced with the motion for new trial, then stated that he had made certain findings of fact at the trial in order to spare the feelings of the parties involved. He stated that if the court must now make specific findings, which findings had never been requested by either party, the court finds that the “husband had proven grounds for divorce against the wife and that the wife had not proven grounds for divorce against him. . . .” and the wife was unfit to have custody of the child.
An appeal was filed and in due course a request was made to the district court for permission to proceed with the appeal in forma pauperis. The trial court denied the application and permission had to be obtained from this court.
The plaintiff filed an application for temporary custody during the appeal or in the alternative for reasonable visitation rights.
Plaintiff presented evidence under oath that she was being denied reasonable visitation rights with her child. Defendant had moved from a number of different residences in a short period of time between the trial and the motion for temporary custody. Neither the plaintiff nor her counsel could find out where the defendant was staying with the child. The plaintiff presented evidence that she had only seen her child three times since custody was granted to the father. The court, over the objection of the plaintiff, allowed the defendant to testify without being sworn. While the defendant was testifying without being sworn, counsel for defendant suggested that he would be willing to have the testimony under oath retroactive. The court stated, “this is just for therapy. We want to understand each other better.” In overruling the motion for at least reasonable visitation rights, the court stated, “Well, this is on appeal to another court, and the other court will decide whether other error was committed here. I see nothing to do, except to leave it in status quo.”
We are forced to conclude that at the hearings on custody of the child there was not the careful and conscientious consideration of all material factors making it possible for the trial court to exercise sound judicial discretion in the premises, and under the facts and circumstances disclosed by the record the trial court abused its discretion in taking the five months old baby girl from its mother and giving custody to the father.
We are not directing the immediate delivery of the custody of the child to the mother. Right to custody must be determined from the facts and circumstances existing at the time the determination is made. Over a year has expired since the custody order was made by the trial court. There is also the question of child support if and when a change of custody is decreed.
It is ordered tibat, as soon as possible, compatible with due process and proper procedure, a full hearing be held to determine the proper custody of the infant under present conditions, and that the matter be transferred to another division for such hearing.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Johnnie Lee Bell, was convicted of robbery in the first degree. He has appealed, advancing three contentions.
First, the defendant argues that the trial court erroneously overruled his motion for discharge, made at the close of the state’s evidence. This claim is based on comments made by the court, when the motion for discharge was argued, that the evidence of guilt was not overwhelming.
Whatever may have been in His Honor’s mind at the time— and a subsequent explanation tends to place the remarks in a ra tional context — his observations fall far short of constituting disapproval of the verdict which the jury later returned. In this connection it is significant that the trial court subsequently overruled the defendant’s motion for a new trial — an action which we believe effectively negates any claim that the court was dissatisfied with the verdict.
In the State v. Frey, 111 Kan. 798, 208 Pac. 574, a quite similar situation was considered by this court and it was held:
“On appeal, it is of no consequence that before the jury rendered its verdict the trial court expressed serious doubt as to the sufficiency of the evidence to establish the defendant’s guilt; although if such doubt had persisted in the trial court’s mind after the verdict was rendered it would have been its duty to set the verdict aside and grant a new trial.” (Syl. ¶ 4.)
The defendant next contends that prejudicial error resulted from the trial court’s failure to admonish the jury as required by K. S. A. 62-1446, on the occasion when a recess was declared and the jury was excused while instructions were being prepared. K. S. A. 62-1446 (now superseded by §22-3420 [2], Kansas Code of Criminal Procedure) provides as follows:
“When the jurors are permitted to separate after being impaneled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves nor suffer others to converse with them on any subject connected with the trial, or to form or express any opinion thereor until the cause is finally submitted to them.”
In the early case of State v. Mulkins, 18 Kan. 16, this court said in substance that where the trial court permits the jurors to separate and fails to admonish them as required by statute it will be presumed, in the absence of anything shown to the contrary, that the rights of the defendant were prejudiced thereby, and the burden of proving that the rights of the accused were not prejudicially affected rests upon the state.
The strictness of this rule was tempered in State v. Stackhouse, 24 Kan. 445, where it was held:
“A court, at every separation of the jury and at each adjournment in a criminal trial, should give the statutory admonition; but where it appears that at the first adjournment, and before any separation of the jury was had, the court had given this admonition and had stated to the jury that the duty thus declared rested upon them whenever out of the jury-box, until the close of the trial, and that the admonition was duly given at each adjournment thereafter, and the record discloses a trial otherwise fair and impartial, the judgment will not be reversed simply because during the sessions of the court several recesses, of from three to five minutes duration, are shown to have taken place without this admonition being given as preliminary thereto; and this, although the record is silent as to what took place during such recesses, and as to whether any of the jurors left the court room or not.” (Syl. f 3.)
Similar language is found in Stager v. Harrington, 27 Kan. 414, where this court said:
“We do not think that the recess of two or three minutes taken by the justice’s court, without the justice’s admonishing the jury, could possibly have worked any prejudice to the rights of either party. Neither party objected or took any exception at the time, and nothing prejudicial is shown.” (p. 421.)
Turning now to the facts of the instant case, we note that immediately after the jury was impaneled and sworn the trial court admonished them as follows:
“You are now sworn officers of this Court and Judges of the facts of this case. You must conduct yourselves accordingly. By this, the law means in part that you may not discuss this case among yourselves or with any other persons during the trial of the case, or during the recess of the trial.
“You will recess to the jury room in the day time and recess to your homes at night, remembering that you may not discuss the case with friends, family, or strangers. You must keep your views about the case entirely within your minds as individuals until the time when you retire to the jury room to deliberate upon your verdict. The jury room is through the door to the right of the jury box to which you may now recess. The remaining jurors in the courtroom are now excused until 9:30 o’clock on Wednesday morning of this week, please ”
At the conclusion of the first day of the trial the court recessed for the night and again admonished the jury — in this wise:
“The witness is excused. The jury will now be recessed for the night to return in the morning at 9:30 o’clock to resume with the trial of the case. Please come to your jury room in connection with this courtroom prior to 9:30. Remember again you may not discuss this case among yourselves or with others —not family, friends, nor strangers. Keep your thoughts about the case entirely within your minds as individuals until the moment when you retire to the jury room to deliberate on the verdict.”
Nowhere does it appear that the jurors failed to heed the court’s initial admonition, nor that there was any misconduct whatever on their part. We have said more than once it is to be presumed, absent a contrary showing, that public officers will perform their duties. (State v. Sharp, 202 Kan. 644, 451 P. 2d 137; Call v. State, 195 Kan. 688, 408 P. 2d 668; Yurk & Brady v. Brunk, 202 Kan. 755, 451 P. 2d 230.) We believe this rule is sufficiently broad to encompass jurors as well as others who serve in the public interest.
In view of the comprehensive character of the previous admonitions given by the court, as they are heretofore set out, combined with the compelling character of the evidence of the defendant’s guilt, we are unable to say that prejudicial error is to be presumed in this case. Other than one single instance of failure to admonish the jury upon recess, the record reveals a trial which was fair and impartial.
As we view the evidence against the defendant, it is more than abundant to support the jury’s verdict. Not only was there eyewitness identification, but there was convincing circumstantial evidence of guilt, as well. This conclusion disposes of the defendant’s third point, for it is well established that a verdict supported bv substantial competent evidence will not be set aside on appeal. (State v. Smith, 160 Kan. 443, 163 P. 2d 353.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
Defendant appeals from a conviction of unlawful possession of a narcotic drug — cannabis, commonly known as marijuana — in violation of K. S. A. 65-2502.
Highly summarized — the evidence in the case was substantially as follows:
At about 8:30 on the evening of August 23, 1969, deputy sheriff Woods was on routine patrol duty in a rural area northeast of Lawrence. His suspicions were aroused when he saw a car parked on a dead-end lane in a field, and he proceeded to investigate. The car was locked, and unoccupied. It had Illinois license tags. The immediate area was known by him as one in which there was a heavy growth of marijuana. He called for assistance, and deputy sheriff Anderson responded. They staked themselves out in different locations — and waited.
In about 40 minutes they saw car lights emerging from the field. They followed, and shortly thereafter stopped the car as it was being driven toward Lawrence. Defendant was driving, and with him in the front seat was Raymond Sauer. Both got out of the car, and defendant asked why he was stopped. Woods replied that it was just a routine check of the car. The officers inquired if they could search the car — and defendant replied that they could. He gave them the key to the trunk. It revealed nothing except a spare tire and tire-changing tools. They then looked inside the car and discovered two sacks of freshly cut marijuana on the floor of the front seat on the passenger side.
Both defendant and Sauer were placed under arrest for possession of marijuana and were given the “Miranda warning”. They interrupted several times to ask “if the officers couldn’t just keep the sacks and contents and let them go”. The suggestion was refused. Both were formally charged with unlawful possession of marijuana. Sáuer entered a plea of guilty and was granted probation. Defendant elected to stand trial by jury, and was found guilty as charged.
The state’s evidence was substantially as above related. In addition, there was scientific evidence to establish that the contents of the sacks, together with clippings found in and on defendant’s shoes, socks and pants pockets — were marijuana. Also, the state introduced evidence of defendant’s prior conviction in the state of Illinois of possession of marijuana.
Sauer, a witness for defendant: — testified that—
He and defendant were friends and both lived in Chicago. He had no particular interest in fossils — but that fossil-hunting and gemstones were a hobby of defendant. Some time ago he had been given a hand-drawn map by a hitch-hiker which showed “marijuana areas” near Lawrence. On the weekend in question he and defendant drove from Chicago to Lawrence. He had marijuana in mind — but had not told defendant — whose purpose was to search for fossils. When they arrived at the field they separated — Sauer taking both sacks. Neither had any tools for fossil-hunting. He found and cut marijuana and placed it in the sacks. When he returned to the car defendant was there — but nothing was said about marijuana until just before their car was stopped by the officers.
In his own behalf defendant testified that—
He was an engineer for a manufacturer in Illinois, and was married and had one child. He and Sauer had driven from Illinois to the Lawrence area in search of fossils and gem-stones — which were his hobby. He was particularly interested in jasper and moss agate — which he had heard were plentiful around Lawrence. Just before his car was stopped by the officers Sauer told him about the marijuana. He had not sought permission to go on the land in search of fossils. His prior marijuana conviction in Illinois was for a misdemeanor — possession of one marijuana cigarette. His correct name was Grabinski — rather than Grabowsld — the discrepancy arising from an error of the arresting officer in writing down his name, which he, in order to avoid publicity, had not corrected.
Before discussing the appeal it should be stated that the hunt for fossils was unsuccessful. Neither defendant nor Sauer had any tools or artifacts for fossil hunting, and neither found any fossils, gem-stones, jásper, or moss agate.
On appeal — defendant makes three contentions.
The first is that his motion to suppress the evidence should have been sustained because it was seized as a result of an illegal search and arrest. It is not denied that he gave permission to search his car, but is argued the record is silent as to whether he was aware of the fact that at the time he could have refused to permit the search — and therefore he did not intentionally waive a known right or privilege.
Under the undisputed facts of this case the contention is completely without merit.
Defendant’s car was first observed under very unusual and suspicious circumstances. The routine check of his driver’s license was entirely proper and was authorized by K. S. A. 8-244. We have no question here concerning an alleged illegal search and seizure or of the right to conduct a warrantless search of an automobile suspected of contents that offend against the law (State v. McMillin, 206 Kan. 3, 7, 476 P. 2d 612) for the evidence is undisputed that defendant, a mature man, gave his consent to the search. There is nothing in the record even remotely to suggest that his consent was the result of fraud, coercion or duress, or that he lacked sufficient intelligence to appreciate the consequences of such consent. When one knowingly and voluntarily consents to a search of his vehicle by peace officers he may not later complain that items found in the search are the fruits of an illegal search and seizure — and therefore inadmissible (State v. Kowalec, 205 Kan. 57, 468 P. 2d 221). And see State v. Pierson, 202 Kan. 297, 300, 448 P. 2d 30. The marijuana was not seized as a result of an illegal arrest or unlawful search.
Defendant’s second contention is that there was no evidence that he had “possession” of the marijuana, and that possession by another (Sauer) in the car cannot be imputed to him.
On this point the jury was correctly instructed as follows:
“No. 3
“The possession and control of a prohibited narcotic drug as contemplated by K. S. A. 65-2502 is the exercise of dominion thereover, or the right and authority to possess, control and manage its use and disposition.”
“No. 4
“Possession of a prohibited narcotic drug within the purview of K. S. A. 65-2502 may be joint as well as individual and two or more persons may have the power of control and intend to manage, control and use it jointly.”
There is no occasion to repeat the evidence. Needless to say — it pointed to the fact the venture was a joint one for the purpose of harvesting marijuana, and was amply sufficient to support the finding of “possession” in defendant. The contention to the contrary is without merit.
Finally, defendant contends the trial court erred in admitting into evidence his prior conviction of possession of marijuana — the argument being that it was prejudicial because the offense here charged was not an “intent” crime.
At the time the record of the prior Illinois conviction was admitted the court — in the presence of the jury — stated—
“Exhibit 6 is an authenticated copy of a prior conviction of the same offense with which the defendant is now charged and being tried, and it is offered for the sole purpose of whatever relevance it may have in reference to the intent, plan, motive and guilty knowledge of the defendant in respect to the crime with which he is now charged and being tried. It is not proof that he is guilty of this chai'ge, it is offered for the sole purpose which I just stated insofar as it relates to plan, intent, motive and scienter — which means guilty knowledge and for that limited purpose then Exhibit 6 is received for the jury’s consideration.”
and, in its general written instructions, the court gave the usual “limiting purpose” instruction with respect to the matter.
Evidence of this prior conviction clearly was admissible on the grounds stated by the court — above, for it was relevant and competent to establish that defendant had knowledge of and was familiar with the narcotic nature of the very substance he was charged with possessing (State v. Jarvis, 201 Kan. 678, 443 P. 2d 272; State v. Holsey, 204 Kan. 407, 411, 412, 464 P. 2d 12 and State v. Kowalec, above).
The verdict in this case is fully supported by the evidence. Assuming the jury believed defendant’s highly incredible and bizarre explanation of the purpose of the weekend trip from Illinois to Lawrence — the fact remains that he and Sauer were “caught red-handed” — so to speak — with two sacks of freshly cut marijuana in their possession.
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. The opinion of the court was delivered by
Mason, J.:
Frank J. Brown sued C. H. Kirshner and the Board of Trustees of Oberlin College for a balance claimed to be due upon an account for services rendered for them with respect to several pieces of real estate owned by the college, under an agreement that as compensation therefor he was to receive 5 per cent, of all rents collected and per cent, of the price should any ■of the property be sold, no matter by whom, he, however, to have an exclusive agency for the sale thereof. A demurrer to the evidence was sustained, so far as related to the board of trustees, but a judgment was rendered against Kirshner, from which he prosecutes error.
The real controversy is whether the plaintiff was en- • titled to receive 2£ per cent, of $18,000, or $450, on the ground that one of the tracts referred to, described as the Stilson land, had been sold for $18,000. He pleaded an account, showing a long list of charges and credits, •apparently covering all his transactions with the defendants from his first connection with them, doubtless to emphasize his theory of the case and to make it plain that he was not asking an agent’s commission for making a sale. The balance stated, however, was $470.40, or but $20.40 in excess of the amount referred to. A number of specifications of error are argued,' but they do not seem to require discussion in detail.
The contention of the plaintiff is that while his contract with Kirshner was in force- the college sold the Stilson tract for $18,000, and that thereby he became entitled to an amount equal to 2-lr per cent, of this price. The transaction relied upon as a sale was this: The college entered into a written contract with one A. B. Grover which granted to him for a stated time the sole right to sell the property, and provided that he should plat it into city lots, to be sold by him on time, for ■ prices sufficient to yield in the aggregate more than $18,000 and interest, and that whenever this sum was received by the owner the lots then remaining unsold should be deeded to Grover as a part of his compensation for making the sales. He agreed to push the sale •of the lots at his own expense, and to furnish all con tracts and other printing. Ultimately the plan thus outlined was carried out in full, the college receiving the price stipulated and conveying the remaining lots to Grover. But before any important step had been taken in that direction the plaintiff .brought his action, alleging that his contract had been terminated by the action of Kirshner.
It may be that the execution of the written agreement referred to, either by itself or in connection with» other acts complained of, was such an invasion of the; plaintiff’s rights as to give him at once a cause of action: against Kirshner. Perhaps he might have successfully-sought damages for the breach of his contract. Or, regarding this as having been repudiated by the other party, he might have been entitled to compensation for such services as he had already performed, measured by their reasonable value. But he sued upon the contract itself — seeking no relief except under its very terms. To recover upon this theory it was necessary for him to show a sale of the Stilson tract during the; life of his contract.. His agreement with Kirshner was; not open to the interpretation that he was to receive-a percentage of whatever price the college might obtain: for its land upon some sale made in the distant future,. when their relations had entirely ceased. It contemplated merely that while it was in effect a percentage-of the receipts from sales should go to him. It came to-an end, according to his own pleading, before this action was begun. Therefore he was not entitled to recover in this proceeding unless the contract between the college and Grover in itself constituted a sale. The plaintiff is not aided by the fact that because of that: contract and in pursuance of its terms all of the property was finally sold — portions of it being deeded to. various buyers found by Grover and the rest to Grover himself. The sale or sales afterward made can not be deemed to date back by relation to the time the contract: was entered into.
The trial court held that for the purposes of the case the contract between the college and Grover amounted to a sale, and so instructed the jury. This we think was error. We regard the contract as one authorizing an agent to sell, and retain as his commission all of the price over a fixed sum. It lacked an essential element of a sale — a buyer. The only parties to it were the owner and Grover, and Grover did not agree to buy. He did not even undertake to find a buyer. The extent of his obligation was to make an effort to do so. It was possible for the contract to have been fully performed according to its terms without a single lot being sold. At the time this action was brought there was no certainty that, although each party should conform fully to its provisions, any transfer of title would ever be made under it.. The fact that sales were afterward made and that the whole title ultimately passed can not affect the character of the transaction as it stood when the plaintiff brought his action.
This view doubtless disposes of the case, for as already suggested the real controversy turns upon the right of the plaintiff to receive what is in effect a commission upon the sale of the Stilson tract. A cross-petition in error has been filed against the trustees of the college, but as the consideration stated precludes a recovery against them as well as against Kirshner it need not be examined.
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The opinion of the court was delivered by
Smith, J.:
It is.conceded by the plaintiff that if, as-, appears to be the case, the loss occurred through “an. act of God” the defendant would not be responsible in damages therefor under the ordinary contract of freight shipment. He alleges in his petition, and relies upon, an oral contract between himself and the-station agent of the defendant at Galesburg, 111., by the terms of which “said car, so to be loaded and so to-be transported, was to go right through, without stops, and . . . should reach Wichita, Kan., not later than the morning of the 31st day of May, 1903.” In consideration of the contract the plaintiff agreed to-pay, and did thereafter pay, the defendant the sum of sixty dollars for the service. The only evidence in support of the alleged special contract is the statement of the plaintiff, as a witness. His undisputed testimony is as follows:
“I went to see the C. B. & Q. agent, and on the 28th day of May, 1903, I returned to Mr. Machen, the agent for the Santa Fe. I asked him the same as I did before, and I asked him whether they would ship the goods right through, and when it would arrive at Wichita. He said it should arrive at Wichita the following Sunday, May 31, 1903. I told him what I wanted to put in the car — that I wanted to put a horse in — and also asked whether a man could go in the car to take care of the horse. He said they would give free transportation with the car for $60. Pursuant to this talk I took the car and loaded the stuff in it.”
The plaintiff also testified that after the goods and the horse were loaded in the car he signed a contract •of shipment and a bill of lading.
The usual rule is that where parties orally negotiate and agree upon the terms of a contract, and thereafter reduce their contract to writing, the writing supersedes the spoken words and is presumed to include all of the contract — the oral agreement merges into the written one. , Whether this rule should apply under the circumstances of this case it is not necessary here to decide, as we do not think the evidence is sufficient to sustain the allegations of the petition in regard to the making of the oral contract.
Strict as are the rules of the common law in imposing' upon the carrier liability for goods lost in transportation, “an act of God” is thereunder a justification for failure to perform the contract of carriage and relieves the carrier from liability for a loss of the goods consigned. (Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A., n. s., 658; 6 Cyc. 377.) It is said in volume 1 of the American and English Encyclopaedia of Law, at page 592:
“A common carrier, liable as an insurer for the property entrusted to him for the purpose of transportation, is, nevertheless, excused from responsibility for losses which are caused by an act of God.”
■If a contract may be made for the delivery of goods ■so strong as to render this excuse unavailable to the carrier for loss of the goods in transportation it must be expressed in language clearly and unequivocally disclosing such intent. The unusual character of such an agreement would call to its aid no presumption from the usual course of business. Such a contract is not deducible from the conversation related by plaintiff as occurring between himself and the station agent at Galesburg on May 28, 1903. The answer of the-agent as to when the goods would arrive at Wichita, is more suggestive of an intention to inform the plaintiff of the time when the train would be due there, by the time-table, than of an intention to warrant its arrival by the time indicated. If, however, it be construed as a contract to deliver the goods within the-time specified, which is all that is claimed in the petition, responsibility for failure to perform the contract is excused if prevented by the act of God. (Strohn, and another v. The Detroit and Milwaukee R. R. Co., 23 Wis. 126, 99 Am. Dec. 114.) That case is very similar to this, and, after holding that the statement of a station agent to the shipper as to the time a shipment should arrive at its destination does not constitute a contract that the transportation will be consummated within that time, the court said:
“We do not understand, however, that when a railroad company by its agent agrees to deliver goods within a prescribed time it becomes an absolute insurer of the goods, and must deliver at all events or pay for the property. We suppose if the goods were destroyéd by an act of God or the public enemy before the time for delivering them expired, this would excuse the carrier on the special contract. The parties are presumed to contract with reference to the responsibility which the common law imposes upon the carrier in ordinary cases, the carrier assuming the risk in respect to the-time. Such, it seems to us, is the extent of liability assumed by the special agreement.” (Page 131.)
We conclude that the conversation testified to as evidence of a parol contract to transport the goods to their destination within a prescribed time is not sufficient clearly to indicate such an agreement; also, that if such a contract were established the carrier would not thereby become the absolute insurer of the goods and be bound to pay the value thereof if they should be destroyed and the delivery prevented by the act of God before the expiration pf the agreed time of delivery. The evidence indicates that the flood, the act of God, was the sole cause of the loss of the goods and the horse.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The principal controversy is whether at the time Mrs. Baker bought the land at the master’s sale she should be held to have done so as trustee for her brothers and her mother’s estate. That she intended to purchase for herself alone can hardly be questioned under the evidence. It is contended that she had originally taken title to the land, with her brother John, as security for a debt owing to her from her brother B. F.; that she had accepted from John an assignment of a mortgage which he personally held against the land, and, also, an assignment of a mortgage from John as administrator of the mother’s estate; that such assignments were made- for the purpose of enabling her to get an extension of the mortgage to the Northwestern Life Insurance Company; that she released these mortgages of record, together with her own, for that purpose, and procured the extension for the benefit of herself, her brothers and co-heirs. From these facts it is argued that Mrs. Baker became a. trustee- for her brothers and co-heirs, and could not at her pleasure devest herself of the responsibility, but that all she did' thereafter in relation to the land must enure, pro rata, to the benefit of herself and those she so represented.
It is true that one occupying any relation of trust or agency to another should not be permitted to manipulate the property or business of such other to his own benefit or to the disadvantage of the other. On the other hand, where, as in this case, one has an interest in a property prior, and in a measure adverse, to the interest of another, and the other, with knowledge of the facts, places his interest in the hands of the one having the prior interest for protection, the ordinary rules governing trustees and cestuis que trust do not apply. It is at most a subservient trust or agency. Good faith, to be sure, must be exercised by the agent in the management of the property or business; but good faith does not in such a case require the relinquishment of the agent’s interest therein, nor of his priority.
■ B. F. Haag owned the land and mortgaged it to the insurance company for $6000, then to Mrs. Baker for $2500, then to John Haag for $1300, then to his mother, or to her estate, for $3000,- aggregating practically tne full value of the land. A judgment was about to be rendered against him for several hundred dollars, and voluntarily, for the purpose of avoiding a levy on the land for the judgment, and for the purpose of protecting the interests of his relatives, he deeded the land to Mrs. Baker and his brother John. B. F. Haag afterward paid the judgment, but became unable to pay the interest on even the first mortgage. The insurance company brought a suit against all the parties, and procured a judgment for about $6200 and a decree foreclosing the rights of all the defendants and an order for the sale of the land. Mrs. Baker sought unavailingly the assistance of her brother John and the coheirs of the estate to pay off .this judgment. They practically disclaimed any interest in the land, or faith in the outcome, although she offered to pay considerable more than her proportionate share of the money. Thereupon John assigned to her the two mortgages held by him, and she released them and her own mortgage of record. Then she borrowed the money and paid upon the judgment of the insurance company a sufficient sum to reduce it to $5000, and secured a contract from the company to stay execution of the remainder for three years, provided certain annual payments were made upon the principal and the interest was paid semiannually. It was evidently still intended to allow her brother B. F. to redeem the land, as he joined with her in the contract with the insurance company for the extension, and he was to make the payments thereunder. He made two payments of interest.. but failed to meet the first stipulated payment upon the principal. Thereupon the insurance company returned a proffered further payment of interest and proceeded, in accordance with their judgment, to sell the land. Still not one of. the parties to this suit raised a hand to assist, but Mrs. Baker borrowed the money, and, we must presume, at a regularly conducted public. sale was the highest bidder and became the buyer of the land. Had. she not bid thereon the land might have been sold at a lower price and left a deficiency judgment against B. F. Haag. All the rights -of all the parties to this action to that land were sold and extinguished by the sale, and all the. title Mrs. Baker now holds thereto was acquired by the master’s deed. By the findings of the court the land is considered to have been worth more than twice the amount it sold-for, but from common knowledge .of the public sale of lands at that time it must be said to have been sold at a price more proportionate to the real value than was then common.
The court found that Mrs. Baker in all these matters acted in good faith, and the finding is supported by evidence. B. F. Haag entered into written contracts leasing the land from Mrs. Baker for several years after the sale, and after, as he admits, he was informed by her that she was the sole owner thereof, and only sets up a claim of title and for an accounting when sued for rent. The other claimants remained- silent until made defendants to the suit on the application of B. F. Haag. One heir even then disclaimed any interest. These facts are immaterial except as circumstances tending to justify the findings of the court. That the land has greatly increased in value since the master’s sale and is now an abundant reward to Mrs. Baker for h.er valiant efforts to save it is equally immaterial.
The judgment is affirmed. | [
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Per Curiam:
Plaintiffs sued the city- to enjoin the passage of an ordinance relevying an assessment for special improvements in paving a street, and to enjoin any further proceedings by the city, on the ground that in a prior suit between the same parties they had obtained a judgment fprever enjoining the city from making an assessment on the property of plaintiffs to pay for the particular improvement. The ordinance in question was passed under the authority of section 129 of chapter 122 of the Laws of 1903. The case is controlled by the principle declared in Kansas City v. Silver, 74 Kan. 851, 85 Pac. 805. (See, also, Kansas City v. Boylan, 74 Kan. 901, 88 Pac. 1134; Haggart v. Kansas City, 77 Kan. 798, 94 Pac. 789.)
An attempt is made to distinguish this case on the theory that the prior judgment relied on determined that the property of the plaintiffs was not benefited by the improvement, but if this could be said to make any difference there is nothing in the agreed statement of facts upon which the case was tried, nor in the prior judgment, to intimate that the property of the plaintiffs was not benefited. There was no allegation in the original nor the supplemental petition, in the former suit to that effect. On the contrary, it appears from the agreed statement of facts in this case, as well as the pleadings in the former suit, that all the property assessed lies within half a block on either side of the street improved, and that the former judgment, which' is now claimed to be res judicata, was based upon mere irregularities in the proceedings of the council. The legislature in its wisdom saw fit to give the city the power to cure ali such irregularities by subsequent proceedings. The validity of these curative acts has been repeatedly upheld. (See the cases cited, supra, and Kansas City v. McGrew, ante, p. 335.) On the agreed statement of facts, therefore, the judgment should have gone for the city.
The judgment is reversed, and the cause remanded with directions to enter judgment for the defendant for costs. | [
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The opinion of the court was delivered by
Mason, J.:
Fritz Durein was convicted in police court of violating a city ordinance. He appealed to the district court, where he was" tried upon an amended complaint and again found guilty. He appeals to this court, and asks a reversal on two grounds: (1) Because such amendment was permitted, and (2) because, after it was made, no new warrant was issued.
In City of Burlington v. James, 17 Kan. 221, it was held that on appeal from police court the defendant could be tried only upon the original complaint, because the statute did not provide for its amendment, the court saying: “If the city has made a mistake in its prosecution, the only remedy is to dismiss its action, and commence anew in its own court.” (Page 223.) Lately, however, the legislature has remedied this con dition. by adding the following section to the act relating to cities of the first'class, and applying the same provisions to other cities by a separate enactment (Laws 1905, ch. 336) :
“On the trial of said cause in the district court, should the complaint be quashed or set aside for insufficiency, or for any other reason, the same may be amended or a new complaint filed, in like manner as in appeals from justices of the peace.” (Laws 1903, ch. 122, § 108m)
In the present instance the original complaint was not quashed, no attack having been made upon it. The appellant contends that the statute quoted, must be strictly construed; that it gives no authority to amend a complaint which is already sufficient; that a new complaint can only be filed after the old one has been set aside by the court for some sufficient reason. To adopt such an interpretation would be to adhere too closely to the letter of the act and to ignore its real purpose. The manifest object of the new legislation was to correct the defect of the law pointed out in the early decision, and to make the practice in the district court on appeal from a conviction for the violation of a city ordinance the same as though the prosecution were one for a misdemeanor begun before a justice of the peace. The provision of the statute in that regard is as follows:
“The district or criminal court shall hear and determine ány cause brought by appeal from a justice of the peace upon the original complaint, unless such com-' plaint shall be found insufficient and defective, in which event the court at any stage of the proceedings. shall order a new complaint to be filed therein, and the case shall proceed thereon the same in all respects as if the original complaint had not been set aside.” (Justices’ Crim. Code, § 22.)
If read literally this seems to say that no amendment shall be made except when the original complaint is determined to be insufficient, but the language used in that connection plainly results from the assumption that the prosecutor will not desire to change a pleading which is already without defect. It certainly was not intended to prevent any changes that might be considered advisable, even if not absolutely necessary, nor has it ever received such an interpretation. So in the case of the statute first quoted, the quashing of the original complaint is mentioned rather as the occasion for the exercise of the right of amendment than as a condition precedent to its existence. For reasons deemed by him sufficient the city attorney asked leave to file a new complaint, and, upon its being granted, did so. If the old complaint was sufficient the act was unnecessary, but in no way harmed the defendant.
A somewhat similar but even less plausible objection to the amendment is based upon the fact that it was made before instead of at the trial. This was a benefit rather than an injury to the defendant, and gave him no ground of complaint. Nor were his rights invaded by the omission to issue a new warrant, which could have had no other function than to bring him before the court which already had complete jurisdiction of his person in virtue of a recognizance which had not. spent its force.
The judgment is affirmed. | [
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The opinion of the court was delivered by
SMITH, J.:
The only question raised in the original brief of the plaintiff in error is that the contract is in violation of the interstate commerce law and is null and void, and that, therefore, the proper charge for the through shipment was the sum of the two local rates. It seems clear that the contract of shipment made by the agent of the Rock Island company at El Reno, which was ratified by the agent of the Missouri. Pacific company at Wichita or a new contract to the same effect was made, is valid, unless in violation of the interstate commerce act, as alleged.
The Missouri Pacific company having alleged the invalidity of the contract, the burden of establishing the claim rests upon it. It has neither alleged nor proved any fact to establish this claim, unless it be the simple fact that no interstate rate of shipment from El Reno, to Harris had been agreed upon, published and filed with the interstate commerce commission. We do not think this is sufficient. It is agreed that the Rock Island company had published and filed an interstate rate over its road from El Reno to Wichita and Kansas City, Mo., at thirty-three cents per hundredweight for the class of freight in question. We take judicial notice of the fact that the distance over the Rock Island line from El Reno to Kansas City, Mo., via Wichita, through Kansas, is considerably greater than the distance over which the shipment in question was carried. This, we concede, is not conclusive of the proper rate from El Reno to Harris, but may be considered in determining whether or not the rate agreed upon was unreasonably low. There is no allegation or proof that any greater rate than thirty-three cents per hundredweight had theretofore been charged for a through shipment of like freight from El Reno to Harris, and there is no allegation or proof that there did not exist a through-shipment rate, published and filed by the Rock Island and Missouri Pacific lines, from El Reno to. Wichita over the Rock Island and thence over the Missouri Pacific to some point beyond Harris, Kan. The plaintiff in error has failed to point out any provision of the interstate commerce act which it claims was violated by the contract in question, but relies solely upon the proposition that, there being no legally established through-shipment rate under the interstate commerce act from El Reno to Harris, the legal rate is the sum of the two rates before mentioned, and that any contract in deviation therefrom is illegal and void. We do not think this conclusion necessarily follows.
It was the duty of the two railway companies to publish and file with the interstate commerce commission a through rate for interstate shipments, subject to the approval of the commission. (17 A. & E. Encycl. of L. 161-163.) When this is done it fixes the rate, which can not be raised or lowered by agreement with shippers, or otherwise, except in accordance with the provisions of the act of congress. In this case no such rate had been established, and it is not to be presumed that, if established, the rate would be higher from El Reno to Harris than the rate which had been filed by the Rock Island company for the greater distance from El Reno to Kansas City, Mo. The contract rate seems not unreasonable, and no reason appears why it is not valid.
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The opinion of the court was delivered by
Johnston, C. J.:
The Illinois Life Insurance Company brought this action against E. D. Benner upon a. promissory note given by him to the Kansas Mutual. Life Insurance Company and, by the receivers of the latter company, assigned to plaintiff. Among other-defenses Benner alleged that by mutual consent of the-Kansas Mutual Life Insurance Company and himself" the form and evidence of the indebtedness was changed, from a note to an open account, and that by this substitution the obligation of the note was satisfied and. discharged. The jury found that the Kansas Mutual Life Insurance Company held a promissory note against. Benner, and that he was also indebted to it upon an. open account; that on September 23, 1902, the note was. carried on the books of the Kansas Mutual Life Insurance Company as a claim against defendant, and that, the transfer of the note to the open account was made-with the intention, at the time, of extinguishing the liability on the note and carrying the entire liability against Benner in the form of an open account; that, the Kansas Mutual Life Insurance Company and the receivers of that company did not carry the note upon, their books, or any record of a claim against the defendant on account of the note, but the books did show that the whole amount was carried in the open account. It was also specifically found by the jury that, the indebtedness represented by the note had never-been paid in any other way than by the substitution mentioned.
It is argued that the charging of the amount of the-note into an open account did not amount to a payment of the debt, and this may be conceded, but one of the defenses of Benner was the novation or substitution of' a new obligation for the old one. In volume 21 of the American and English Encyclopaedia of Law, at pages 660, 663, novation is defined as follows:
“Novation is the substitution of one obligation for- another, and takes place either by the substitution of a new for an old party or by the substitution of a new agreement between the old parties, or, it may be, by a change both of parties and of agreement at the same time. . . . Where a creditor accepts from his debtor a new note instead of an old, or any form of written contract instead of a prior unwritten contract or obligation, with the intent to cancel the former and to substitute the new one therefor, novation by the substitution of a new obligation takes place.”
Novation is sufficiently pleaded in the answer of the defendant, and the finding of the jury is to the effect that a new obligation in the form of an account was substituted for the note, and the only question remaining is whether there is testimony fairly tending to support the findings and verdict.
Aside from the testimony of Benner that an arrangement was made with the insurance company whereby the note should “be taken care of and done away with,” there is the testimony that in Benner’s account on the books he was credited with the note and the amount of the note was charged against him. It appears, too, that while the note was not surrendered or destroyed, neither the Kansas Mutual Life Insurance Company nor the receivers of that company carried the note in the note account after the transfer and entry of the indebtedness in the open account, and it did not appear again in the records or accounts of the insurance company. One of the receivers, who had charge óf the books and assets of the company, testified that when the assets were listed and turned over to the plaintiff the note was not listed and turned over. It was shown, too, that attorneys representing the plaintiff wrote to Benner admitting thai ene note had been charged off into an open account, but insisting that the substitution did, not satisfy the indebtedness —that it only changed it from a note to an account. It is argued that there is no proof of an express agreement that the transfer of the amount of the note to an open account should operate as an extinguishment of the note. The assent of the parties that the new obligation shall be accepted in discharge of the old one is an essential element, but the substitution may be accomplished by either an express or implied agreement. (Harris and Donaldson v. Lindsay, 4 Wash. [U. S. C. C.] 271, 11 Fed. Cas. p. 637; Warren v. Batchelder, 15 N. H. 129; Seaman v. Whitney, 24 Wend. [N. Y.] 259, 35 Am. Dec. 618; Whitney v. American Insurance Co., 127 Cal. 464, 59 Pac. 897; 21 A. & E. Encycl. of L. 669.)
Counsel say that it is unreasonable to infer that the-insurance company would give up a written promise, with its longer limitation, for an obligation based only on an open account, which was subject to dispute and to the earlier bar of the statute, and that nothing short of proof of an express declaration by the parties would, establish such á substitution. It was a contract, however, which the parties were competent to make. Express or implied assent might be given as in the case of ordinary contracts, and whether they gave assent or intended a novation is a question of fact for the jury, and may be determined upon inferential, as well as. direct, evidence. (Walker v. Wood, 170 Ill. 463, 48 N. E. 919; Robbins et al., Appellants, v. Robinson et al., 176 Pa. St. 341, 35 Atl. 337; Mulgrew v. Cocharen, 96 Mich. 422, 56 N. W. 70; Sinclair v. Richardson, 12 Vt. 33; Lynch v. Austin and another, 51 Wis. 287, 8 N. W. 129; 21 A. & E. Encycl. of L. 670.)
In view of the testimony and the findings of the jury the motive of the parties in making the exchange-is not important. Whether the insurance company found it embarrassing to carry the promissory notes of its employees among its assets, or whether the defendant preferred that the obligation should not be in the form of a promissory note, subject to inspection by the insurance department, it is needless to- inquire. It is enough that such a contract may be made and that there is sufficient proof to support the finding of the jury that it was made.
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Per Curiam:
Several persons acquired and held a tract of land as joint tenants. A number of them died, and no severance of the estate was made during their lifetime. A contention has arisen between the heirs of the deceased tenants and the survivor as to the ownership of the land. Under the conveyance each joint tenant held one and the same interest, and upon the death of one the entire estate vested in the survivors. An act abolishing joint tenancy was enacted in 1891 (Laws 1891, ch. 208), after the estate in question had vested, but it only had prospective operation. The rights of the joint tenants became vested under the deed of conveyance, and subsequent legislation did not apply to estates previously created nor deprive any joint tenant of the right of survivorship. It has been held here that the act did not affect vested estates, and the district court rightly held that the title of the land was m the survivor. (Simons v. McLain, 51 Kan. 153, 32 Pac. 919; Holmes v. Holmes, 70 Kan. 892, 79 Pac. 163.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The objections to the tax deed are: (1) That the property sold at the tax sale is not described with the ordinary and reasonable certainty which the law requires; (2) that the deed does not recite that the payment of the amount bid was made to the treasurer of Rawlins county.
The portion of the tax deed which is alleged to contain both of these infirmities, reads as follows:
“And, whereas, at the place aforesaid, D. L. Gruver, of the county of Rawlins and state of Kansas, having offered to pay the sum of seventeen dollars and four cents, being the whole amount of taxes, interest and costs then due and remaining unpaid bn said property for 1889, to wit, NE4 sec. 35-2-36, which was the least quantity bid for, arid payment of said sum having been by him made to the treasurer, the said property was. stricken off to him at that price.”
The tax deed had been of record for more than five years, and under numerous decisions of this court all' reasonable inferences and presumptions are to be indulged in favor of its validity. The criticism of the-language used in describing the property sold is that the word “for” should have been used instead of the-word “on” between the words “remaining unpaid” and “said property.” It is, perhaps, more accurate in such connection to say one offered to pay a certain price for a property than to say he offered to pay the price on the property. However, as there immediately follows a description of the land, and the words “which was; the least.quantity bid for,” any possible uncertainty is removed.
The case of McDonough v. Merten, 53 Kan. 120, 35 Pac. 1117, is cited as authority for holding this deed invalid. An error in the published report of that case renders it very misleading. The record of the case in this court and the original opinion on file set forth copies of the portion of the tax deed in question as follows :
“And whereas, at the place aforesaid, John R. Taylor, of the county of Clay and state of Kansas, having offered to pay the sum of $34.26, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for year 1872--which was the least amount bid for.”
As published in the report the blank after “1872” is entirely omitted, a comma being inserted in its place. The deed was held invalid by reason only of the failure of the county clerk to insert a description of the land in that blank space. The deed in this case has a second description of the land where the blank in that deed occurred, and, hence, that case really becomes an authority in favor of the validity of this deed.
As to the second objection, the deed recites that the treasurer of the county was conducting the tax sale at the time and place Gruver made the bid for the land, and that Gruver paid the sum bid to the treasurer before the property was stricken off to him. It is hardly an inference to say this means that the sum bid was paid to the county treasurer. The language could hardly be construed to mean anything else.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The defendant was convicted under a city ordinance which provides:'
“Every person who shall either labor himself, or compel his apprentice, servant or any other person in his charge or control to labor or perform any work other than the household offices of daily necessity, or other work of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and on conviction thereof fined in any sum not less than two dollars nor more than twenty-five dollars for each offense; provided, this section shall not extend to any person who is a member of any religious society by whom any other than the first day of the week is observed as the Sabbath, so that he observes such Sabbath.”
The complaint was as follows:
“That on the-day of October, 1907, in the city of Topeka, in the county of Shawnee and state of Kansas, one Roy Crawford did wilfully, wrongfully, maliciously and unlawfully open, superintend and manage a public theater, and give dramas, comedies, tragedies, burlesque, minstrel and vaudeville shows and various-other theatrical entertainments and performances, and did sell tickets of admission therefor varying in price from ten cents to one dollar and fifty cents, and, as such manager of such public theater, did compel his servants- and employees under his charge and control, to wit, stage-carpenters, stage-hands, janitors, ushers and ticket sellers, to labor and to perform work — and such labor and work performed was other than the household offices of daily necessity, or other work of necessity or charity — on the first day of the week, commonly-called Sunday.”
An objection is made to the ordinance that it was never published as required by law. The facts concerning the publication are that, preparatory to the-compilation and publication in book form of the ordinances of the city, the mayor and council revised certain ordinances and enacted others, each containing a. provision that it should take effect upon publication, in such ordinance book. Among these was ordinance No. 2615, defining certain public offenses, known as the-misdemeanor ordinance, prescribing penalties for a large number'of offenses usually classified under that, name. Section 102 of that ordinance defines the offense upon which appellant was tried, and is quoted above. A former revision and publication, known as-the Revised Ordinances of 1888, contained a misdemeanor ordinance, section 65 of which was substantially the same as section 102 of the present ordinance, with a change in the penalty, and omitting a clause relating to ferrymen. This ordinance, No. 2615, was-passed June 30, 1905, and approved July 6, 1905. On October 6, 1905, another ordinance providing for the-publication of the revised ordinances of the city in book form was duly published and took effect, and the book containing the ordinances of the city of a general nature was published accordingly. Among the ordinances, contained therein was the misdemeanor ordinance No. 2615, containing the revised section 102, under which defendant was prosecuted. An edition of 500 copie» was thus printed by authority of the city and turned over to the city clerk on or before December 1, 1905, at which date that officer certified that such revised ■ordinances, not previously published in the official city paper, took effect. This certificate appears in the book. The law governing cities of the first class provides:
“That when the council of said city shall order a revision of the ordinances of said city, a publication in the book of ordinances shall be deemed a publication under this act; provided, further, that no less than fifty copies of such book shall be published.”
“All ordinances of the city may be proved by the •certificate of the clerk, under the seal of the city, and when printed or published in book form, and purporting to be published by authority of the city, shall be read and received in evidence in all courts and places without further proof.
“The city may from time to time authorize the revision of the ordinances and their publication in book form, and may cause to be published in connection therewith the laws relating to cities of the first cláss, and such forms and instructions as may be deemed advisable.” (Laws 1903, ch. 122, §§ 191, 194, 195.)
The civil code contains this provision:
“Printed copies of the ordinances, resolutions, rules, ■orders and by-laws of any city or incorporated town in this state, published by authority of such city or incorporated town, and manuscript copies of the same certified under the hand of the proper officer, and having the corporate seal of such city or town affixed thereto, shall be received as evidence.” (Civ. Code, § 379.)
The precise contention of the defendant is that ordinance No. 2615 is not a revision, but an original ordinance, and therefore not within the purview of section 195 of the Laws of 1903, above quoted. This is a mistaken view. The ordinance is a revision; but if it were not, when the city undertook to revise and compile its ordinances generally a new ordinance designed to be included in, and to be a part of, such general revision would have been within the statute, and when published in the book of ordinances would thereupon take effect and be in force.
Objection is also made to the complaint because the precise date of the alleged offense is not stated. It was •stated, however, that it was committed on Sunday, and in the month of October, 1905. The precise date is 'immaterial. (Crim. Code, § 105.) The gravamen of this offense is laboring on Sunday, and that is charged 'definitely. (The State v. Brooks, 33 Kan. 708, 7 Pac. 591; The State v. Nesbit, 8 Kan. App. 104, 54 Pac. 326.) The complaint is sufficient.
The defendant contends that the evidence was insufficient because it did not prove the charge that he himself labored oh Sunday, nor that he compelled his -employees to do so. The complaint charges that the -defendant opened and managed a theater, gave shows and entertainments therein, and sold tickets therefor, -on Sundays, and does not otherwise charge that he performed labor himself, although it does directly allege that he compelled his servants and employees to labor on that day. The defendant does not question the authority of the city to enact the ordinance, and he -does not dispute its validity otherwise than in questioning its proper publication. We have therefore only to consider whether he has violated it. To this end we must inquire in what sense the word “labor” is. used in the ordinance and, incidentally, in the state statute which it follows. Similar statutes have been enacted in -other states. They differ in phraseology, and this must account in part for an apparent diversity in the decisions. Some prohibit ordinary business or following usual vocations as well as labor. This ordinance refers only to labor. The sense in which this word is •used in statutes depends upon the legislative intent, in view of the object-to be accomplished, as well as upon the particular language employed.
In M. K. & T. Rly. Co. v. Baker, 14 Kan. 563, it was field that a timekeeper was not a laborer within the purview of a statute requiring railroad companies to give bonds to pay laborers, and in The State, ex rel., v. Martindale, 47 Kan. 147, 27 Pac. 852, it was decided that the restrictions of the statute making it unlawful for laborers, workmen, mechanics and others employed by the state to work more than eight hours a day did not apply to the warden, clerks and other officers of the penitentiary. Other courts have held that the exemption of the wages of a laborer protected only the earnings of those engaged in toilsome occupations. The object of this ordinance is quite different; it is to secure that opportunity for rest which, from the experience of mankind and the consensus of opinion, is believed to be for the highest good of the individual and the state. This matter was under consideration in an early case in Pennsylvania, wherein the court said r
“All agree that to the well-being of society periods of rest are absolutely necessary. To be productive of the required advantage, these periods must recur at stated intervals, so that the mass of which the community is composed may enjoy a respite from labor at the same time. They may be established by common consent, or, as is conceded, the legislative power of the state may, without impropriety, interfere to fix the time of their stated return and enforce obedience to the direction. When this happens, some one day must be selected, and it has been said the round of the week presents none which, being preferred, might not be regarded as favoring some one of the numerous religious sects into which mankind are divided. In a Christian community, where a very large majority of the people celebrate the first day of the week as their chosen period of rest from labor, it is not surprising that that day should have received the legislative sanction.” (Specht v. Commonwealth, 8 Pa. St. 312, 323, 49 Am. Dec. 518.)
A statute of Ohio prohibited “common labor” on Sunday. Commenting on this statute Mr. Justice Thurman said:
“Wisdom requires that men should refrain from labor at least one day in seven, and the advantages of having the day of rest fixed, and so fixed as to happen at regularly recurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the general assembly to require this cessation of labor, and to name the day of rest. It did so by the act referred to, and, in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected.” (Bloom v. Richards, 2 Ohio St. 387, 391.)
In the same opinion, after saying that the word “labor” is usually employed to signify manual exertion of a toilsome nature, and holding that it did not embrace the simple making of a bargain, the court was careful to add:
“It is not to be understood, however, that, because a Sunday contract may be valid, therefore business may be transacted upon that .as upon other days; as, for instance, that a merchant, not of the excepted class, may lawfully keep open store for the disposition of his goods on the Sabbath. To wait upon his customers, and receive and sell his wares, is the common labor of a merchant, and there is a broad distinction between pursuing this avocation and the case of a single sale out of the ordinary course of business.” (Page 402.)
The evidence shows that the defendant regularly kept open and managed his theater, gave orders and directions to the employees on and about the stage, and to drivers in his employ who received from and returned to the railroad stations the baggage, scenery and paraphernalia of the traveling troupes, and that he sold the tickets for exhibitions, on Sunday. These manifold duties necessarily required some manual labor, although not of the kind usually classed as toilsome within the meaning of statutes such as those first referred to. If to keep open a store and receive and sell wares therein is the common labor of a merchant, it is fair to say that to keep open, manage and superintend a theater and sell tickets therein is the labor of such manager, and if we keep in mind the object of these regulations we will see that the reason of the rule applies quite as forcibly to the theatrical, manager as to the merchant.
Under a statute prescribing a penalty for engaging-in any labor on Sunday, except works of necessity, charity or mercy, the selling of liquor on that day was. held to be prohibited in a very vigorous opinion, affirmed on rehearing. (Cortesy v. Territory, 6 N. M. 682, 30 Pac. 947, 19 L. R. A. 349.) It should be noticed that the prosecution was not for violation of the-liquor or dram-shop act, but for engaging in labor on-Sunday. In New York the usual duties of an attorney’s-clerk were held to be embraced within the statute prohibiting “working” on Sunday. (Watts v. Van Ness, 1 Hill [N. Y.] 76.) In the federal supreme court, where the question arose whether an overseer who was charged with the general control and direction of the work and development of a mine was within the protection of a statute of Utah giving a lien to persons who should “perform any work or labor” upon a mine, it was decided that he was entitled to the lien. (Mining Co. v. Cullins, 104 U. S. 176, 26 L. Ed. 704.) The court said:
“He was the overseer and foreman of the body of miners who performed manual labor upon the mine. He planned and personally superintended and directed the work, with a view to develop the mine and make it a successful venture. His duties were similar to those of the foreman of a gang of track-hands upon a railroad, or of a force of mechanics engaged in building a house; Such duties are very different from those which belong to the g-eneral superintendent of a railroad, or the contractor- for erecting a house. Their performance may well be called work and labor; they require the personal attention.and supervision of the foreman, and occasionally in an emergency, or for an example, it becomes necessary for him to assist with his own. hands.” (Page 177.)
While this case may go farther than this court has gone in the application of similar provisions, the lan guage above quoted is quite pertinent to the present case.
Our attention has been directed to but one case where the labor was of the precise nature of that performed by the defendant. In Quarles v. State, 55 Ark. 10, 17 S. W. 269, 14 L. R. A. 192, the defendant was charged with violating a statute providing a penalty for any person “who shall on . . . Sunday be found laboring,” etc. (Page 10.) The proof was that the defendant performed the same duties as those charged and proved against the defendant in this case, and it was held that opening, superintending and managing a public theater, and giving a theatrical entertainment and selling tickets therefor, was labor within the meaning of the statute, and the conviction was affirmed.
Many decisions have been made upon the general subject, and they may not all be in perfect harmony, but we hold in accord with those quoted above that the defendant, in managing his theater, selling tickets, and performing the work on Sunday charged in the complaint and proved on the trial, violated the' ordinance. It is not necessary to inquire whether in employing and directing the work of laborers in and about the theater he “compelled” them to labor within the meaning of the ordinance.
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The opinion of the court was delivered by
Benson, J.:
The Midland Savings and Loan Company, a Colorado building and loan association, issued to Oliver L. Steinman a certificate for twenty shares of its capital stock, for which he agreed to pay in monthly payments of'$5.80 each for 144 months, or until the shares should be of the par value of $100 each. Four months afterward Steinman applied for a loan of $700 as a member of the association, upon a pledge of the stock and upon a mortgage of real estate. The application was delivered to the agent of the association at Iola, by whom it was forwarded to its office in Denver, Colo., and there approved. The money“was transmitted to another agent at Iola, and there paid over to Stein-man upon delivery to the agent at that place, for the company, of the mortgage and certificate of stock as such security. .
The bond contained the provisions peculiar to such transactions, and stipulations for monthly payments of $5.80 on stock, $4.38 interest, and $4.37 premium, amounting to $14.55 per month, and also provided that in case of default the stock should be forfeited and the withdrawal value applied upon the loan. The bond also contained the following clause:
“This bond is delivered, and its conditions are to be performed, within the state of Colorado, and it shall in all respects be governed and entitled to the benefits of the laws of said state, and its payment is secured by the assignment of the aforementioned shares of stock, as collateral security; also by deed of trust . . . executed and delivered by the said Oliver L. Steinman and Sallie Steinman to N. Q. Tanquary ... , as trustee.”
A clause to the same effect appears in the mortgage. The bond also provided that the charter and by-laws of the company should be part of the obligation. The by-laws contain the following:
“The laws of the state of Colorado, the articles of incorporation of this company, the by-laws, the applications for stock or loans, and the certificate therefor, shall be and constitute the contract between the corporation and its several stockholders and between the shareholders and each other. . . . All contracts, trust deeds and mortgages must be construed as having been made in Denver, Colo.”
A statute of Colorado relating to building and loan associations provides:
“Any association . . . shall ... be authorized and empowered to levy, assess, and collect from its members such sums of money, by rates of stated dues, fines, interest on loans advanced, and premiums . . . as the corporation may provide for in its constitution or by-laws.
“Such [associations] '. . . may charge, contract for and recover a premium upon such a plan as may be provided for in the by-laws, or- note, or other evidence of indebtedness taken by such association, all of which notes shall be in form non-negotiable.
“No premiums, fines, or interest on such premium that may accrue to the said association, according to the provisions of this act, shall be deemed usurious; and the same may be collected as debts of like amount are now by law collected in this state; but no fees for non-payment of dues shall exceed five per cent, per month for the first sixty days and two per cent, per month thereafter.” (Laws of Colo. 1897, ch. 33, §§ 1, €, 7.)
Steinman made twenty-four payments of interest and premium, of $4.38 and $4.37 each, respectively, down to April 3, 1901, and twenty-three payments on stock, of $5.80 each, amounting to $343. A tender of $349.20 was made and refused. The withdrawal value of the shares was then $108.20.
On February 12, 1904, the association commenced this suit of foreclosure upon the bond and mortgage. The trial was by jury. The plaintiff demurred to the defendant’s evidence, which demurrer was sustained, and judgment rendered for the plaintiff for $1040.58. The only controversy is over the amount due, and this issue defendant insists should have been submitted to a jury.
The amounts and dates of payments and the withdrawal value of the stock were admitted. The laws of Colorado and the by-laws of the company, above referred to, and the tender, were undisputed. The defendant claimed that the premiums and all. payments made in excess of the lawful rate of interest in Kansas should be credited on the principal. This presented a question of law only, which the court was required to determine, either upon the demurrer to evidence or by an instruction. And if the amount for which judgment, was rendered was no more than the amount due upon the undisputed facts, the defendant has no cause of complaint.
The case is substantially the same as Loan Co. v. Solomon, 71 Kan. 185, 79 Pac. 1077. There the question was presented upon the pleadings; here it arose-upon the trial. It was there held that the courts of this state should not refuse to enforce the collection of sums due upon a lawful bond solvable by the laws of a foreign state, and not given in evasion of the usury-laws of this state; merely because if construed by the laws of this state the rate of interest would be higher than that allowed by the laws here. This settles the principal contention against the defendant, the same stipulations appearing in the instruments here as in that case.
It is also urged that as there was no competitive-bidding for the loan there could be no premium in fact, and that the provision therefor was an evasion of the-usury laws; but the' statute of Colorado, in connection with the by-laws, which were a part of the contract, provides for such premiums, and in following the rule in the Solomon case we must hold the party bound by its terms. If our citizens choose to apply for loans to corporations in other states, no fraudulent scheme or evasion being pleaded or proved, they must abide by their agreement that the laws of that state shall govern in such matters.
The fact that the securities were delivered to an agent of the plaintiff in this state and that- for convenience the monthly payments were made here, although the bond provided that they should be made in Colorado, does not prevent the application of the rule announced in the Solomon case. It was not alleged that the transaction involved a scheme devised to circumvent the usury laws, with stipulations in the contract fraudulently designed to accomplish that purpose, or that the defendant was deceived or imposed upon concerning them. Nor were fraudulent practices charged. The issues were upon the interpretation and effect of the contract and the application of the payments, and appear to have been properly decided.
Another question is presented: It is alleged that the plaintiff was - doing business in this state in violation of our law, not having complied with its provisions relating to foreign corporations. The subscription for stock was made before the act of 1898 took effect. (Laws 1898, ch. 10.) Being the owner of stock Stein-man was entitled, as stipulated in the certificate, to a loan when he made application and offered sufficient security. The association ceased to do business in this state when that law went into effect — January 11,1899, but it could not refuse to carry out its contracts previously made. (Bedford v. Eastern Building and Loan. Assn., 181 U. S. 227, 21 Sup. Ct. 597, 45 L. Ed. 834; The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041; Boggs v. Kelly, 76 Kan. 9, 90 Pac. 765.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The defendant was charged with statutory rape, and was convicted of an attempt to commit that offense. He complains of thé insufficiency of the information, and specifies alleged errors occurring on the trial.
The information charged that the defendant did “unlawfully, feloniously commit rape upon a female person under the age of eighteen years, to wit, ... by carnally knowing her, the said,” etc. The omission of the words “and unlawfully” after the word “carnally” is the alleged defect relied upon. The word “unlawfully,” however, appears in the information. The offense was clearly and plainly charged, and the information was sufficient. (Gen. Stat. 1901, §§ 5550, 5551.)
The defendant also complains of the admission of' testimony tending to show prior undue familiarity on the part of the defendant with the prosecutrix. The-evidence was properly received (The State v. Borchert, 68 Kan. 360, 74 Pac. 1108), and its purpose and effect were clearly stated in the instructions.
Numerous assignments of error are predicated upon the admission of testimony of the complaints of the prosecutrix concerning the violation of her person. The competency of such complaints in cases of this character was referred to in The State v. Daugherty, 63 Kan. 473, 65 Pac. 695, and The State v. Oswalt, 72 Kan. 84, 82 Pac. 586. The complaints'testified to were-first made to a girl friend who was close at hand and to defendant’s wife quite soon after the alleged occurrence, and to the sister of the prosecutrix on the following night. These consisted of charges of improper liberties — acts admitted by the defendant when the girl related them to his wife, and related also in his testimony on .the trial; so, if erroneously admitted, the testimony so far was not prejudicial.
Twelve days after the day on which she said the offense was committed she was visited by Mr. Enns, a. justice of the peace, and Mr. Jones, a friend who accompanied the officer. The justice called, it seems, to take her complaint as the basis of the criminal prosecution which followed. Mr. Jones testified concerning-this interview that he assisted in obtaining the information and making it possible to write the complaint. He further testified:
“Ques. And after you had a talk with her, then was. there anything written? Ans. There was.
“Q. Where was that written ? A. It was written in. the justice of the peace’s office.
“Q. Was that after you had been to the Kaufman- home. A. If it is proper I will state it in a few paragraphs. . . . After I was at the house ?
“Q. Yes, sir. A. I went first to the justice’s office.
“Q. You say you saw a paper written up. A. Yes, sir.
“Q. After you saw that paper written up, were you at the Kaufman house after that? A. Yes, sir.
“Q. Did you see some paper there? A. Yes, sir.
“Q. Did you hear it read to Lulu Kaufman? A. Yes, sir.”
“Q. You had no further conversation with her and Mr. Enns after that? A. We had some more talk.
“Q. Did you refer their question after that talk, or was there any more written down? A. There was more written down.
“Q. Who did the-writing? A. Mr. Enns.
“Q. In whose presence was it done ? A. In my presence and Lulu’s. .
“Q. Was. that an additional writing to the first paper ? A. It was in the one.
“Q. Do you know whether or not Lulu Kaufman signed that last paper? A. She did sign it.
“Q. I will ask you, if you know, whether she was sworn to it or not? A. It was sworn to.”
Mr. Enns, the justice, testified that he went to the home of the prosecutrix with Mr. Jones and saw Lulu there, her mother being present part of the time; that he was there half an hour and then went to his office and wrote a paper, and then went back and saw Lulu and Mr. Jones the second time; that Lulu did not sign the paper which he had written. The following testimony was then given by this witness:
“Ques. Did you have any conversation there at that time with Lulu? Ans. Yes, sir; there was a conversation.
“Q. Did you do anything after that conversation? A. Wrote a second paper.
“Q. Where did you write that — where were you when you did'the writing? A. I am inclined to think I wrote that right there, having a blank with me.
“Q. Who was present? A. Mr. Jones, I think, was ■nrpcip-nf
■ “Q. Who else? A. Lulu.
“Q. This second paper was written, was it, then signed up? [No reply.]
“Q. Do you remember now whether you administered the oath there? A. Yes, sir; she signed it and swore to it.”
Neither Mr. Jones nor Mr. Enns was cross-examined. The girl, Lulu, was then recalled, and testified concerning the same interview as follows:
“Ques. You remember the circumstances of their visit there that Monday, do you? Ans. Yes, sir.
“Q. That was the Monday after you had seen Mr. Jones at the Sunday-school on Sunday? A. Yes, sir.
“Q. You remember the paper they presented to you, the first paper? Did they show you a paper when they came there ? A. I think so.
“Q. When did they show you a paper — the first or second time they came? A. I think the second time.
“Q. I want to ask you which conversation it was that you had with Mr. Jones or Enns that morning that you told them all of this, whether it was the first conversation or second time they were there ? A. The second time.”
Before being recalled Lulu had testified that she had told two things before, but had not told it all; that she told it all first to Mr. Jones. What she had first told related to certain indecent liberties, but involved no charge of intercourse. It seems that this latter charge was the one referred to when she said that she “told it all” to Jones. This appears sufficiently by inference from the whole examination, and was testified to by her on cross-examination. On redirect examination she was permitted to say that the reason she had not told it all to Mrs. Hoskinson and to her sister and mother was becáuse she was ashamed and afraid to do so. The testimony of Jones, Enns and Lulu, purporting to relate what Lulu had told them, and copied above, was given over the defendant’s objection. It appears from the abstract that the county attorney in his argument to the jury commented on what the'prosecuting witness had told Jones about the affair, and that upon objection by defendant’s counsel the court “sustained thé above objection . . . and instructed the jury not to consider the statements of the county attorney ais to statements of Lulu and Jones not in the record in this case.”
The complaints of the injured female in trials -for cómmdn-law rape are admitted upon thé thédry that if shé made no complaint of such án outrage hér silence would naturally be construed as evidence that it had not occurred. The prosecution is allowed to foíéstall this presumption by showing that she did not remain silent. (2 Wig. Ev. § Í135.) This rule admits, m the first instance, the complaint mérely; the detail's aré excluded. (3 Greenl. Ev., 16th éd., § 213.) Somé courts have admitted a full relation of the detáils tdld by the prosecutrix, but thé weight of áuthority admits only the fact that a comlaint was mádé; it is not permissible to relate the name of the person of whom she complained. (The State v. Daugherty, 63 Kan. 473, 65 Pac. 695.) A probable exception to this rule is where the complaint was made in such immediate relation with and séquencé td the' abt complained of as to be part of the res gestie, but that has no application here: In the base of ah adult person who had consented to the act a complaint would hot be expected^ and so it was said in the Daugherty case that-, the reason failing, the rule also fails. The reason, however, does not fail where outrages are chárged upon children of tender age; For such children to make complaints of such abuse to their mothers or others in whom they confide is natural, and testimony that they did so may properly be admitted, in the discretion of the cohrt, in view of the age and.intelligence of the child, and the time when and the circumstances under which the complaints were made, having regard to the reason upon which the rule rests. This child was thirteen years of age, and the ruling of the court admitting testimony of her complaints would be approved if such testimony had been limited to the fact that she did so complain; but by permitting evi dence of her statements upon which the affidavit for the •defendant’s arrest was prepared, and that she then, to use her own expression, repeated by witnesses, “told it .all,” the court erred to the prejudice of the defendant, and this was made more harmful by the fact that the county attorney in his argument referred to this as evidence supporting the principal charge. The ruling •of the court in withdrawing from the jury the statements of the county attorney not in the record did not prevent the jury from considering this improper testimony, for it was in the record. It is urged that in view of the defendant’s admissions no prejudice resulted from this evidence. His admissions, however, only related to the charges of undue liberties which the prosecutrix first made to Mrs. Hoskinson and others, and not to the final charge related to Enns and Jones — a charge which, it seems, was not made spontaneously and naturally from a sense of outrage, but only after diligent inquiry and examination by the witnesses. This inT quiry was properly made in order to prepare the formal complaint for a public prosecution, but was inadmisT sible as evidence on the trial.
The judgment is reversed, and the case remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
The only question involved in this caséis whether the district court erred in upholding the validity of a tax deed which had been of record more than five years. The defect relied upon by the plaintiff in error is.the omission of the deed to show in what year the taxes accrued for which the land was-sold. The first recital of the statutory form is that the land in question was subject to taxation for a certain year, the subsequent recitals referring to the taxes-of that year. In the present instance the blank left for indicating such year was not filled out, so that it is true the deed does not in terms state for the taxes of what year the sale was made. This is manifestly an important omission, and the only question is whether it can be supplied by a reasonable inference from any matter found elsewhere in the deed. In the clause relating to the consideration it is said that the conveyance is made for $86.02, “taxes, cost and interest due on said land for the years 1894,1895,1896,1897,1898.” The sale was made in September, 1895. It could not have been made then for the taxes of any year later than 1894, for none such had at that time accrued. It is argued that the land might have been sold in 1895 for the taxes of some year earlier than 1894, but this was not in fact done, as is shown by the recital that the consideration was made up of the taxes of 1894 and subsequent years. The inference follows — not only reasonably, but necessarily — that the sale was made for the taxes of 1894’ The deed being more than five years -old, the omission of an express recital may be supplied by such an inference. (Penrose v. Cooper, 71 Kan. 725, 84 Pac. 115.)
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The record in this case requires a consideration of the statute of limitations and several questions of practice. A motion to dismiss the proceeding here because of the omission from the case-made of one of several orders extending the time to make and serve it is denied, the plaintiff in error having supplied a certified copy of the order. The error assigned upon the orders overruling the demurrers to the amended petition can not be considered, more than one year having elapsed after the orders were made before the record was filed in this court. (Railway Co. v. Murphy, 75 Kan. 707, 90 Pac. 290.) The alleged error in denying the motion for an order requiring the plaintiff to make his reply more definite and certain can not be reviewed, because the reply was amended and the amended reply, which was held sufficient, is not contained in the record. The rulings of the court in receiving testimony of which the defendants complain can not be considered because the record does not contain the motion for a new trial, if any was filed.
Defendant Hawkins was the maker of, and defendants J. S. and C. D. Moots were indorsers upon, two promissory notes, the subject of the action. Service was made upon Hawkins in Rice county, where the action was brought, and on the other two defendants in Haskell county. These two moved for a dismissal of the action upon the ground that the district court of Rice county had no jurisdiction of the subject of the action or the persons of the defendants named. The point urged for such dismissal was that upon the face of the petition it appeared that the action was commenced more than five years after the notes fell due, that the causes of action thereon against Hawkins were barred by limitation, and, as there was no right to recover against him, the indorsers had been improperly joined. This motion was denied. In all subsequent pleadings J. S. and C. D. Moots included this objection or plea to the jurisdiction upon the same grounds. The merits of this defense will be further referred to. The action having been commenced more than five years, after the maturity of the notes, the plaintiff in his amended petition sought to avoid the apparent bar by pleading the pendency of certain actions in the Haskell county district court, wherein, it was alleged, these notes had been impounded and held in custodia legis for over five years. It was not claimed that Hawkins was a party in such actions, or in privity with any party thereto, but it was alleged that the other defendants had entered into a conspiracy with the plaintiff in one of the actions to keep the notes in litigation until the bar of the statute should fall.
Defendant Hawkins, after the demurrers to this petition were overruled, answered, affirmatively pleading the five-year limitation, to which the plaintiff replied by restating the proceedings in the other action pleaded in his petition, and also pleading certain written acknowledgments of the indebtedness in further avoidance of the apparent statutory bar. Defendants, J. S. and C. D. Moots also pleaded the limitation of the action against Hawkins with-their plea to the jurisdiction before referred to. On the trial the plaintiff introduced transcripts of the proceedings in the other actions set out in his petition, and also offered evidence tending to show that about two years after the notes became due Hawkins, the maker, had conveyed to J. S. and C. D. Moots a tract of land, upon their agreement to procure and surrender to him the notes, which were then held under the orders of the court in the cases referred to. The deed of conveyance was in the ordinary form, making no reference to the notes. To prove the acknowledgment of indebtedness, in order to avoid the apparent bar of the statute, the plaintiff read letters, written and signed by Hawkins and addressed to the plaintiff, referring to this transaction, in answer tO' inquiries made by him concerning these notes. In one of these letters he said:
“In regard to the note or notes I give Moots Brothers —was for land, and I failed on two crops of wheat; I expected to make money that way to make the payments on the land, and when I failed twice I turned it back to them; they promised to give me back the notes, but never done it; I was careless and that is how it is about the Moots Brothers notes. ... I am willing to pay all my just debts, but not able to pay them twice; I want to do the fair thing, too; don’t want to beat you out of your just rights, neither be done up myself.”
In another letter he wrote:
“I can’t find any letters from any one, but I know that Moots promised to send me the note whenever the notes got in shape that he could get them, and I had forgotten all about them until you begun to write me.”
These writings, shown by other testimony to- relate to the notes in suit, sufficiently acknowledge an indebtedness at one time, but do -not acknowledge a subsisting liability. On the contrary they- allege a payment, and, by implication, deny further liability. The statute provides. that an acknowledgment of an existing liability, debt or claim, in writing, signed by the party to be charged, shall remove the bar. (Civ. Code, § 24.) Construing this statute, this, court has held that this acknowledgment must be an admission of a present, subsisting debt. (Hanson v. Towle, Adm’r, 19 Kan. 273.) It is true that in Elder v. Dyer, 26 Kan. 604, 40 Am. Rep. 320, some expressions in the opinion in Hanson v. Towle, Adm’r, supra, were limited, but the' rule just stated was- not restricted, and in Haythorn v. Cooper, 65 Kan. 338, 69 Pac. 333, the decision in Hanson v. Towle, Adm’r, was reaffirmed, reiterating that there must be “an unqualified and direct admission of a present, subsisting debt on which the party is liable.” (Page 340; Hanson v. Towle, Adm’r, 19 Kan. 273.) Measured by this rule the letters were insufficient to remove the bar of the statute.
The proceedings in the district court of Haskell county did not affect the rights of defendant Hawkins, for he was a stranger thereto. It can not be that the inconvenience or the practical difficulty of bringing an action upon a promissory note, because it is involved for the time in litigation in an action between other parties, can suspend the operation of the statute of limitations on such instrument against a person who is in no way responsible for, involved in, or connected with, the litigation. So to hold would be to read into the statute a proviso or condition not placed there by the lawmakers. In reaching this conclusion we have considered the proceedings in the actions referred to as they are pleaded in the amended petition, the transcripts not being included in the case-made. The effect of this omission, and whether we can review the judgment at all, will now be considered.
The plaintiff contends that because these transcripts are not in the record this court can not review the judgment overruling the demurrer to the evidence. As a general rule it is true that when material items of evidence are omitted from the record this court can not review a judgment rendered upon a demurrer to the evidence. (Kansas City v. Parker, 65 Kan. 734, 70 Pac. 867.) These transcripts, however, were only material for one purpose, viz., to support the plaintiff’s claim that the bar of the statute was not available as a defense because of the fact that the notes had been held in the litigation in the district court of Haskell county, as averred. If, therefore, we give to the missing transcripts the full legal effect warranted by the plaintiff’s pleading he can not be injured. It is entirely fair to the plaintiff to say that they proved just what he claimed in his pleadings, viz., that these notes were seized and held in those actions for the time and disposed of in the manner alleged. In an opinion per curiam (Railway Co. v. Williamson, 58 Kan. 814, 49 Pac. 157) the court held that a map received in evidence and frequently referred to by witnesses in giving testimony was not unimportant, and that, in its absence from the record, the sufficiency of the evidence could not be considered. A map thus referred to by witnesses becomes a part of their testimony, without which the evidence may be unintelligible or misleading, but the situation here is quite different. The transcripts constituted distinct items of testimony, unconnected with any other evidence, and their legal effect can be determined quite as well by the pleading as by reading them. It must be kept in mind, too, that we are considering them as alleged by the plaintiff himself, and giving them the full effect to prove the proceedings as alleged in his petition. The record affirmatively shows that these transcripts were read in evidence, and that the case contains all the evidence except the transcripts. In this condition of the record, for the reasons stated, we hold that the action of the district court upon the demurrer can be reviewed.
The court overruled the demurrer of defendant Hawkins to the evidence, and also the demurrers of the other defendants. The defendants offered no testimony, and judgment was rendered against them for the amount of the notes. The only issue of fact was upon the question of limitations. The evidence consisted of the transcripts and the testimony, before referred to, of written acknowledgments to remove the statutory bar. Holding this evidence insufficient, we conclude that the demurrer of Hawkins to the evidence should have been sustained.
Defendants J. S. and C. D. Moots, while they also demurred to the evidence, rely upon the bar of the statute in favor of Hawkins as being sufficient to relieve them from liability in this action, on the theory that, as no cause of action existed against Hawkins, they were improperly summoned and the court had no jurisdiction to enter judgment against them. All the parties liable upon the same instruments may be joined as defendants in an action thereon. The venue may be in any county where a defendant resides or may be summoned, and when “rightly brought” in one county a summons may properly be issued to another county. (Civ. Code, §§ 39, 55, 60.) We must therefore determine whether the action was rightly brought in Rice county. As service of summons upon defendant Hawkins, the maker of the note, was made in that county,, the service upon the other defendants in Haskell county was prima facie regular. It is argued, however, that if Hawkins was not legally liable upon the instrument the court could have no jurisdiction of his codefendants by service made in another county. In other words, it is insisted that the jurisdiction of the court to'try the issues depended upon the result of such trial. Perhaps a better statement is that it is claimed that if the trial revealed the fact that no cause of action existed against the resident defendant the court had no jurisdiction to pronounce judgment against the other defendants, because it then became apparent that they had not been properly brought before it. In Rullman v. Hulse, 32 Kan. 598, 5 Pac. 176, the action was upon promissory notes made by three persons. An action was brought in Doniphan county before the notes were due. Under section 230 of the civil code a summons and order of attachment were issued to Brown county, and service was made upon a defendant in that county, which was set aside upon his motion. One of the defendants resided in Doniphan county, but no wrong or fraud was alleged against him, and the notes were not due. There was not and never had been a cause of action against him. The court said:
“There is not even any pretense that there was the slightest ground for an attachment as against Rose. The action was therefore wrongfully commenced as against Rose, in whatever aspect we may view it; and as it was wrongfully commenced against Rose, it could not rightfully have been commenced against Hulse in Doniphan county. . . . Before a summons can be rightfully issued from one county to another, the person served with the summons in the county in which the action is brought must have a real and substantial interest in the subject of the action, adverse to the plaintiff, and against whom some substantial relief may be obtained.” (Page 600.)
This decision was reviewed on rehearing in 33 Kan. 670, 7 Pac. 210, and was referred to in Linney v. Thompson, 44 Kan. 765, 25 Pac. 208, where it was said: “In the Rullman case the question was whether an attachment should be dissolved or not. See particularly this case on rehearing.” (Page 768.) In the earlier case of Brenner v. Egly, 23 Kan. 123, it was held:
“In no case can an action for money on a promissory note or other joint and several contract be brought outside of the county where the defendant resides or may be summoned, by merely uniting with him as a codefendant some unreal or imaginary party, against whom no judgment could be properly rendered.” (Syllabus.)
In that case the cause of action against the defendant served in the county where the venue was laid had long before been merged in a judgment, and he was joined merely to bring the other defendant to that county for trial. In the opinion it was said:
“And in such a case no judgment should be rendered against the real party; for presumedly the service of summons upon him was procured wrongfully, and in violation of the spirit of said sections 55 and 60. In such a case, the action should be dismissed as to said real party.” (Page 127.)
This matter was again considered in Wells v. Patton, 50 Kan. 732, 33 Pac. 15, where it was held that the party claiming that service upon him was wrongful had waived his supposed rights by answering to the merits and proceeding to trial without asking for a separate hearing upon the question of jurisdiction. In the syllabus it was held:
“Where a defendant to a civil action pending in a county other than that of his residence is served with a summons in such a way as to be an abuse of legal process, and the fraud being shown in time, the court will, upon proper proceedings, set aside the service.”
In National Bank v. Town Co., 51 Kan. 215, 32 Pac. 902, the quotation previously made from the Eullman case was approved, arid it was held that when the court has jurisdiction of the subject-matter and the action is brought against a defendant in the wrong county, and there is sufficient in the petition to challenge the jurisdiction as to the liability of both defendants, and both are held liable, although improperly joined', the judgment rendered against the defendant served in the wrong county is not void. It was held further that in such a case advantage of the defective service ought to be taken by “motion, plea or otherwise.” (Page 220.) This subject was again referred to in Marshall v. Land Co., 75 Kan. 445, 89 Pac. 905, but the facts there presented were such that a quotation from the opinion would not be applicable.
The opinion in Parker v. Dobson, ante, p. 62, reflects much light upon this subject. Dobson brought an action in Franklin county against the makers of a note, including one who was served in that county and Parker, who was served in Shawnee county. He dismissed the action without prejudice as to the defendant served in Franklin county, whereupon Parker ■moved for a dismissal also, which motion was allowed. Dobson then commenced another action against Parker within one year after such dismissal. But for the operation of section 23 of the civil code the cause of action was barred. The question presented was' whether the first action, which was commenced in due time, was “an action commenced” within the meaning of that section. It was claimed that it was not, for the reason that the cause of action had become barred by the statute of limitations before that action was commenced. The court found that the first action against both defendants had been commenced in good faith, in the honest belief that a payment on the note made by Parker tolled the statute as to both and that plaintiff had a- right to recover against both. The trial court held that the first proceeding was an action commenced within the meaning of the section named, and gave judgment against Parker accordingly, and that judgment was affirmed here. Mr. .Justice Burch, in the opinion, said:
“The district court has found that the plaintiff sued Mary L. Parker believing in good faith that he had an enforceable claim against her. She was not a nominal party, joined merely for the purpose of obtaining service upon the defendant. No fraud upon the jurisdiction of the court was intended or committed, and no wrong was done the defendant because of the manner in which the proceeding was instituted.
“There is no finding that the bill of particulars disclosed the fact that action against Mary L. Parker was barred, but the propriety of the proceeding would not be affected if it had done so. The fact that a right of action has become barred by lapse of time is a defense which must be actively urged in some proper way or it will be waived. The obligation of Mary L. Parker to pay the note remained, and still remains. The defense was personal to her. The defendant could not interpose it for her, and unless she chose to appear and claim the benefit of the statute judgment could rightfully be rendered against'her. . . . It is said that when the court set aside the service upon the defendant it must have found that a fraud upon its jurisdiction had been attempted. Manifestly it was not essential that the court so find to warrant a dismissal as to the defendant; no facts existed authorizing such a finding, and as a matter of fact the court did not so find.” (Pages 66, 68.)
The rationale of the prior decisions of this court is that where the court has jurisdiction of the subject-matter, and the joinder is one authorized by the code, the defendant served in another county will not be held if the resident defendant was joined for the purpose of acquiring jurisdiction over the former and not in good faith to recover against him. Such a case affords an instance of that abuse of process against which courts will always give relief upon proper application. In some of the opinions language may have been used indicating more, than this, but the opinion in Parker v. Dobson, ante, p. 62, marks the limit of the rule to cases where an improper use is made of the process of the court. It must not be applied to an innocent party who in good faith and in the honest belief that his cause is just has joined as defendants the different parties to a promissory note and has been defeated by one of them, after a full trial, by the successful plea of the statute of limitations.
This was not a case where it was obvious that the plaintiff had no right to recover against Hawkins, so that it might be charged that his joinder was merely a ruse to obtain jurisdiction over his codefendants, for the district court not only overruled the demurrer to the amended petition but gave judgment against him on the evidence — a judgment which, it is true, we now hold can not be sustained, but we find nothing to indicate bad faith or an intentional misuse of process on the part of the plaintiff. The record shows an honest effort to collect an honest debt in the usual and-ordinary way. The legal obstacle to a recovery against Hawkins might' have been waived by him, in which event his codefendants could not have, complained. By his insistence upon it they gained no additional rights.
The only defense interposed by J. S. and C. D. Moots being their plea to the jurisdiction, which is not sustained, the judgment against them must stand. The record shows that they received from Hawkins a conveyance of real estate in consideration of which they promised in writing to pay these notes. This tolled the statute as to them, even if that defense had been interposed.
The judgment against J. S. and C. D. Moots is affirmed. The judgment against J. N. Hawkins 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
Porter, J.:
The appellant was convicted of the larceny of two pigs. He assigns several errors, but relies largely upon the claim that there was an abuse of discretion by the trial court in permitting the county attorney on the cross-examination of the defendant and the defendant’s wife to ask questions which tended to degrade the witnesses, but at the time this occurred it was not considered of sufficient importance to challenge the court’s attention to the matter by an objection or motion. The wife was a very material witness and the story she testified to was somewhat remarkable. The defendant was a witness in his own behalf. The questions asked were proper for the purpose of affecting the credibility of the witnesses. (The State v. Abbott, 65 Kan. 139, 69 Pac. 160; The State v. Pugh, 75 Kan. 792, 90 Pac. 242.)
It is claimed that the court abused its discretion in another matter. Counsel, evidently anticipating an attack on the character of defendant’s wife, asked her if she had ever been arrested. She answered that she had. She was then asked if she had been tried. This question was objected to, and in ruling thereon the court said:
“Objection sustained and answer stricken out. During all of my experience at the bar this is the first time I have ever seen a lawyer try to impeach his own witness under these circumstances.”
It is apparent that it was not the intention of counsel to impeach his witness, but to bolster up her credibility before it had been attacked. .The objection was properly sustained. (The State v. Potter, 13 Kan. 414, 424.) The remark probably had some tendency to humiliate counsel, but we can not say that it seriously prejudiced the defendant. Before a judgment of conviction in a criminal action will be set aside for abuse of discretion of the trial court it should satisfactorily appear that the matter complained of affected the substantial rights of the defendant. (Crim. Code, § 293.)
On the trial the state attacked the reputation of the defendant for truth and veracity. The defendant then called witnesses in rebuttal on this proposition. One witness stated that he had known the defendant for • fifteen years, and was asked: “Do you know this man’s character for truth and veracity?” This was objected to as incompetent, and the objection was sustained. The question was asked of two other witnesses, and the objection sustained. These witnesses were business men who lived in the city of Ottawa. The defendant is a farmer, and lives in the country about ten miles from the city. It is argued here that the testimony was properly excluded for two reasons: First, the witnesses were not taken from the immediate vicinity where the defendant resided, and, second, that the • questions referred to his “character” for truth and veracity and not to his “reputation.”- These grounds are extremely technical. A man’s reputation for truth and veracity might easily extend as far as ten miles in fifteen years and be known at the county-seat by business men. The court stated the grounds of the ruling as follows:
“I think I ought to p.ut in the record what I mean by this ruling. This man’s reputation for truth and veracity was attacked by the state. Now, if the defense has any evidence touching the same proposition, I will admit it, but as to his character for truth and veracity I do not think that is competent.”
The distinction between character and reputation is not easily understood by the common run of witnesses, and the terms are not infrequently used without discrimination. ' Section 83 of the code of civil procedure authorizes actions for “injuries to character,” meaning obviously injuries to one’s reputation. In at least two decisions of this court the expression “character for truth and veracity” has been used synonymously with reputation for truth and veracity. (Taylor v. Clendening, 4 Kan. 524; The State v. Eberline, 47 Kan. 155, 27 Pac. 839.)
We think it was error to exclude this testimony. Was it prejudicial — that is, does it appear to have prejudiced the substantial rights of the defendant? The stolen property was not found in the defendant’s possession, but was found in the possession of another, his brother-in-law, who was one of the principal witnesses against him and who, by reason of the property having been found in his possession, was himself under suspicion. The defendant was a witness in his own behalf and denied taking the property. His reputation for truthfulness, especially when it had been attacked by the state, was a very substantial matter for him to prove, and we can not say that the exclusion of the testimony under the circumstances was not error which affected his substantial rights. (See The State v. McClellan, post.)
For these reasons the judgment is reversed, and the cause remanded for another trial.
Benson, J., not sitting. | [
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The opinion of the court was delivered by
Graves, J.:
The only question presented in this- case relates to the measure of damages. The act of the railroad- company in carrying the plaintiffs beyond their •destination, in the absence of other inculpatory facts, amounts to a mere breach of contract. The rule of damages in all such cases is compensation for loss of time and expenses incurred on account of the non-performance of the contract. There is an entire absence in this case of any wantonness, violence or insulting or •oppressive conduct on the part of the railroad com pany’s employees, such as must be shown before exemplary damages can be awarded; and no physical in.jury was received upon which damages for mental pain and anguish may be based. The damages must, therefore, be limited to such as are proper in the ordinary case where a contract has been violated. (6 Cyc. 589; 5 A. & E. Encycl. of L. 690-697; Northern Central Railway Co. v. O’Conner, 76 Md. 207, 24 Atl. 449, 16 L. R. A. 449, 35 Am. St. Rep. 422; Dorrah v. Illinois Central R. R. Co., 65 Miss. 14, 3 South. 36, 7 Am. St. Rep. 629.)
It has been urged in argument that inconvenience is recognized as a proper element of damages in cases of this nature, in addition to those before mentioned; and authorities have been cited which sustain this contention. Undoubtedly the rule is that inconvenience, when of a substantial character, is a proper element of ■damages; but it does not follow that a recovery may be had therefor in every case where a passenger is carried beyond his destination. When, in such a case, the passenger, in order to get back to where the railroad company should have left him, is compelled to walk a long distance through the mud or in inclement weather and in the night, or is compelled to endure any other material inconvenience on account of the conduct of 'the railroad company, damages will be awarded therefor,-in addition to compensation for loss of time and expenses incurred. (6 Cyc. 589; Walsh v. The Chicago, Milwaukee & St. Paul Railway Company, 42 Wis. 23, 24 Am. St. Rep. 376; East Tenn., Va. & Ga. Railroad Co. v. Lockhart, 79 Ala. 315; Central Railroad Co. v. Strickland, 90 Ga. 562, 16 S. E. 352; Houston & T. C. R. Co. v. Crone [Tex. 1896], 37 S. W. 1074.)
The amount of such damages should in all cases be limited to a fair and reasonable compensation for the inconvenience suffered. As applied to this case, the plaintiffs did not expect to reach their home station until about 11:30 at night, when they were to be met by their brother,.who would take them home, two miles; and a half in the country, in a carriage. They reached home about two o’clock that night — less than two hours, later than if their expectations had been realized. At-La Cygne their baggage was removed from one train to the other, and they were guided from train to train through the darkness by the employees of the railroad, company; their baggage was placed upon the platform, at Fontana upon the arrival of the freight-train; they suffered no indignities or insults, and were not unkindly treated in any respect. On the contrary, they and their baggage were as well cared for as could be expected under the circumstances. No suggestion as to the condition of the weather has been made, and it may therefore be assumed to have been an ordinary summer-night. The plaintiffs were young women, in good health. All the facts, taken together, show that the-inconvenience suffered by them of which the law can take notice was very slight, and may be fully compensated with a small sum. The amount awarded by the jury was grossly excessive. Where there is any evidence of inconvenience the -question of damages should, be submitted to the jury, under proper instructions. If, when so submitted, the jury return an excessive-sum, the court should either submit to the plaintiff the alternative of accepting an amount deemed sufficient, by it or a new trial or set the finding aside as excessive- and grant a new trial. When in the judgment of the trial court there is no evidence tending to show the-existence of a substantial inconvenience the question of damages therefor should not be submitted to the-jury.
In this case we think there was some evidence of inconvenience suffered by the plaintiffs; slight, but too much to deprive them of the right to have it submitted to a jury. (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. 1, 1 Pac. 605.) In submitting this element of damages to the jury all considerations of sentiment, fright, mental suffering and other facts which enter into and constitute exemplary damages should be eliminated, and the damages limited to a reasonable compensation for the physical labor and annoyance suffered. The court, in setting aside the special finding ■of the jury as to inconvenience, must have done so upon the assumption that there was an entire absence of evidence upon that subject. For this reason the judgment must be reversed. This case has been pending many years, and a large amount of costs has accumulated. It seems proper, therefore, to suggest to the trial court that, as a means of obtaining an early and final adjustment of the controversy, the plaintiffs now be tendered an opportunity of accepting an amount which the court deems reasonable, and, in case of refusal, grant a new trial. If the case be retried the court should distinctly direct the jury as to the limited matters which enter into damages for inconvenience.
The judgment of the court 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
Benson, J.:
By informal action of the county commissioners of Marion county the county clerk was delegated as purchasing agent for the board. The county clerk purchased several bills of books and stationery of J. G. Rogers. Accounts therefor were duly made out, marked “O. K.” by the county clerk, and sold to the; plaintiff bank. The board, upon presentation of these bills and upon being satisfied that they were just claims, allowed and paid them in the usual way. Afterward accounts purporting to be for other bills of books- and stationery were made out by J. G. Rogers, and the county clerk made the following indorsements on the-account dated November 15, 1904, for $109:
“This bill will be allowed at the July meeting, 1905.
J. H. Thrasher, County Clerk.”
Similar indorsements were made on the other bills.. These bills, so indorsed, were thereupon verified.by J. G. Rogers, sold to the plaintiff bank, and were presented to, and disallowed by, the board.
The plaintiff sued as upon accounts stated, alleging in each count that “an account was stated in writing between defendants, acting through their agent, J. H. Thrasher, and one J. G. Kogers.” The answer contained a general denial. On the trial the plaintiff proved the verification and presentation of the accounts; the indorsements by the clerk; the payments by, and assignments to, the bank; and the allowance and payment of the previous bills. No proof was offered that the goods were ever delivered or that they were received or used by the county. The plaintiff relies upon the proposition that the accounts were stated, and only the defenses of fraud or mistake were available.
These were not stated accounts in the sense claimed by the plaintiff. The authority of the clerk to purchase supplies for the county did not include the power to bind the board for anything he might purchase, whether delivered or not. The county board is the tribunal provided by law to allow claims against the county. It exercises the power of the county (Gen. Stat. 1901, .§ 1605), and is charged with the duty to examine and settle claims. (Gen. Stat. 1901, §§ 1621, 1688.) The delegation to the county clerk of authority "to order the necessary stationery and other articles did not empower him to bind the county for goods not delivered. The coúnty board was required to examine and audit these accounts in the usual way, rejecting any "that were not just claims; the county could not be held liable for goods not delivered or used. The fact that the other bills were allowed is not important. It must be presumed that the goods so paid for were received by the county.
The judgment, which was for the defendant, is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff, A. J. Wood, moves for a. dismissal of this proceeding because the record was not filed in the court within sixty days from the rendition of the judgment. (Gen. Stat. 1901, § 3580.) The record, however, was filed and the proceedings begun within sixty days from the date of the order denying-the motion for a new trial, and this brings here for review the questions presented to the district court upon such motion. (Osborne, Ex’r, v. Young, 28 Kan. 769; Bates v. Lyman, 35 Kan. 634, 12 Pac. 33.)
The defendant, a fraternal benefit association, issued a benefit certificate to Mrs. Wood on November 2, 1904. She died on July 12, 1906. Her surviving husband, the beneficiary, presented proper proofs and demanded payment as provided in the certificate, which was refused upon the ground that Mrs. Wood was not a member of the order in good standing at the date of her death; that she had been suspended on the last day of June for failure to pay an assessment for that month, under the operation of a by-law of the order, which was a part of her contract, as follows:
“If a member fails to make his regular monthly payments, local council dues and all assessments according to the laws of this association to the local secretary on or before twelve o’clock midnight of the last day of the month, then his certificate shall terminate at that hour and be null and void.” .
The assessment had been regularly made, but was not paid until the 11th day of July.
Mrs. Wood was a member of local council No. 78, at Fulton, which is subordinate to the supreme council. The principal officers of the local council are president, secretary and treasurer. On June 30, 1906, it had sixteen members in good standing holding beneficiary certificates. Regular meetings were held and regular reports were made to the supreme council. It is the duty of the local secretary, prescribed in the by-laws, to report to the local council each month the names of all members suspended for the preceding month for failure to make monthly payments, and to forward to the supreme secretary on or before the 10th day of each month the report of his council for the preceding month, and at the same time to make remittance of all assessments received for the past month. The by-laws provide that if the report and remittance are not received by the supreme secretary before the 15th of the month the local council and its members are to stand suspended, upon notice from the president, secretary and treasurer of the supreme council.
On the morning of July.11, 1906, Mrs. Wood was-ill, and had been for three days, but was not considered to-be in a dangerous condition. She asked her husband to go to the local secretary and pay her dues, which he-did. He testified as follows:
“Ques. Now what was said between you and Doctor Elliott, and what was done there at that-time? Ans. I said to Doctor Elliott, ‘My wife is sick this morning and wanted me to come- over and see if she had paid her assessment for this month, and, if not, to pay it.’
“Q. What did he say? A. He did not say anything, but simply got up and got the book and wrote me a receipt, and I stuck it in my pocket and went home.
“Q. Did you pay him any money? A. Forty cents.”"
“Q. Was there anything said about her coming and making a written application for reinstatement? A. Nothing of that kind.
“Q. Was there anything said about your paying more than the one payment that you had to pay at that time? A. Nothing.
“Q. Was there anything said between you and Doctor Elliott at that time about the by-laws requiring a. health certificate? A. Nothing of the kind.
“Q. Did you make any statement to him at the time that you knew the by-laws required anything of "that, kind? A. No, sir.”
(Cross-examination.)
“Q. You did know it though, did n’t you? A. Know which ?
“Q. That the by-laws required a health certificate when it was paid after the 5th of the month? [Objection that the question was immaterial and not proper cross-examination overruled.] Q. You did know that the by-laws really required a health certificate, did n’t you? A. Well, that was my impression. I don’t know that I knew it. •
“Q.- That the by-laws did require it? A. Yes, sir.”"
The local secretary testified that Mr. Wood inquired about his wife’s June assessment — that Wood said -his-wife was sick, and asked for a receipt — and then continued as follows:
“Ques. What did you say to him-, if anything? Ans. I told him that the by-laws required a health certificate: and an application for reinstatement when the money was tendered after the 5th of the month.
“Q. What did he say? A. He said he understood the by-laws.
“Q. Did he still offer to pay ? A. He made the payment.
“Q. And you gave him a receipt ? A. I gave the receipt.
“Q. After that conversation ? A. Yes, sir.”
In the evening of July 11 Mrs. Wood became very sick, and died the next day at 11:30 A. M. The amount so paid, with other payments of assessments received about that time, was remitted July 12 to the supreme secretary with a report which gave the name of Mrs. Wood, with others, as having- paid the June assessment, and stated that they were in good standing.
On July 18, 1906, the auditing committée of Ful'ton council examined the secretary’s account showing the receipt of the assessments for June which had been paid in after the 5th day of July; among others was the following item: “July 11, Mrs. M. Wood, June, ’06, 40 cts.” This audit included four other assessments received on the same day and two received on July 9. All these items were audited and found correct by the committee.
It is claimed by the plaintiff that for a long time it had been the custom of the secretary of the local council to receive assessments at any time down to about the 12th of the next succeeding month after they were payable, without regard to the payments being made before or after the 5th of the month, and without any application or health certificate being required; and that thereby Mrs. Wood was induced to believe that such assessments would be received at any time before remittance was made to the supreme secretary. A summary of the by-laws material to the issues and the contentions of the respective parties was given to the jury in an instruction, as follows:
“(8) Said monthly payment of forty cents was due and payable on the first day of each and every month during the life of said Marinda Wood, but could be paid at any time up to midnight of the last day of the month. According to said certificate and constitution and bylaws, if any monthly payment be not paid on or before midnight on the last day of the month for which it was payable, then the insured would stand suspended without any -action on the part of the defendant, and said certificate would, by such failure to pay, become null and void, unless such member should become reinstated as provided by the by-laws, of the defendant company. Under the laws of the defendant a suspended member can be reinstated as follows: (a) By payment of the monthly payment the member has failed to pay on or before the 5th day of the following month, together with the pending or current payment then due; provided, such suspended member be in good health at the time of making such payment. (6) If said suspended member fails to make such payment as above mentioned on or before the 5th day of the following month, then in order to be reinstated within thirty days after suspension said member would be required to maké a written application for reinstatement, and also a written health certificate attested by the secretary of the local council, and pay all monthly payments he or she failed to pay, together with the pending or current monthly payment then due; but in order for such payments to effect a reinstatement the suspended member must be in good health at the time such payments were made. But you are instructed that notwithstanding the terms and provisions of said certificate, and the provisions of said constitution and by-laws, if you believe from a preponderance of the evidence that the defendant, by and through the officers of Fulton Council 78, by the adoption of a custom or course of conduct led and induced said Marinda Wood honestly to believe that the assessments owing by her from time to time would be received after the time specified in said constitution and by-laws, and that by reason of such custom or course of conduct, if any, she was led to neglect or fail to make the June payment, 1906, until July 11, 1906, then the defendant is estopped .from asserting a forfeiture by reason of her failure to make such payment at an earlier date. If you believe from a preponderance of the evidence that the defendant, by and through the local officers of said council at Fulton, by the adoption of a custom or course of conduct led said Marinda Wood honestly to believe that the assessments owing by her from time to time would be received after the time specified in the constitution and by-laws, and that the secretary of said Fulton Council at the time she paid said assessment for June, .1906, on July 11, 1906, knew that she was sick, and with that knowledge accepted said payment and sent the payment in to the defendant, and that the defendant retained the same, and never tendered the same back to the plaintiff or to said Marinda Wood, then the defendant is estopped to declare or assert a forfeiture on said certificate, and your verdict should be for the plaintiff.”
This instruction, so far as it relates to.the custom and course of conduct of the council, follows' the rule announced in Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160, and fairly presented to the jury the pivotal question in the case. The local secretary, in receiving and forwarding assessments, was the agent of the defendant order, and not of the member. (Pyramids v. Drake, 66 Kan. 588, 72 Pac. 239.)
The jury returned a general verdict for the plaintiff, and thereby found for the plaintiff every material fact in issue necessary to support the verdict. This custom, having been pleaded, was one of the principal issues tried. The evidence was amply sufficient, showing that practically during the entire existence of the local council it had been the custom to receive dues at any time that would leave the local secretary sufficient time to place the remittance in the hands of the supreme secretary on the 15th day of the month next after they were due. His remittances were usually made on the 11th or 12th, and members then in default were often called up by telephone to make the payments then received and remitted. No health certificate or written application was required, whether payments were made before or after the 5th day of the month. This course of business included the officers and nearly all the members of the local. council, and yet the members remained and were reported as being in good standing. In short, the by-laws requiring exact payment on pain of suspension were habitually disregarded. The defendant, having thus habitually disregarded its own by-laws and by a persistent and long-continued course of business induced its members honestly to believe that they would be continued in good standing although their payments were made after the time specified, can not properly insist upon a forfeiture caused by the sanction fairly to be implied from its conduct.
The defendant contends that the evidence of the custom and course of conduct referred to was not within the issues and was erroneously allowed. The petition alleged that Mrs. Wood was at the time of her death in good standing in the order, that she had performed all the conditions of the benefit certificate on her part to be performed, and had paid all the sums of money required by the defendant according to its rules, regulations, customs and course of conduct, and that the defendant, with full knowledge of all this, had retained all the moneys so paid by her. The answer alleged the default by Mrs. Wood in the payment due June 80, 1906, as provided in the by-laws, and averred that she was not in good standing when she died, but was then in suspension. The answer further alleged “that said Local Council 78 and its secretary, nor any of its other officers, had any right, power or authority to set aside or waive any of the provisions of the constitution and laws of this defendant,” and that if the local council or its officers had received money from members at any time or times except as provided in the by-laws it was without the knowledge or consent of the defendant.
The pleading of the alleged custom by the plaintiff was not in accordance with the provisions of the code requiring a statement of facts. It consisted of conclusions, but it was not challenged by motion or otherwise. On the contrary, the defendant treated it as alleging a waiver, and in turn pleaded that the local council and its officers had no authority so to waive the rules of the order. The issue of waiver by custom thus imperfectly tendered by the plaintiff and fully and clearly met by the defendant was the principal issue tried — in fact, it was the only issue about which there was any real contention. The defendant appears to have been fully prepared to try this issue. Its secretary, who is its principal administrative and accounting officer, and the officers and many members of the local council were in attendance, and the records and files of both the supreme and local councils were produced. If prejudiced by an insufficient allegation of the facts concerning the custom pleaded the defendant should have moved for a more definite statement. (Mitchell v. Milhoan, 11 Kan. 617.) Not having done so, the question of the adoption of the alleged custom thus presented was fully tried upon the merits. The defendant can not justly complain of the insufficiency of the petition to present an issue in which it thus voluntarily joined.
Decisions of this court relating in some measure to the principal question here considered are: Cobb v. Ins. Co. of N. A., 11 Kan. 93; Modern Woodmen v. Jameson, 49 Kan. 677, 31 Pac. 733; Benefit Association v. Swenson, 49 Kan. 449, 30 Pac. 405; Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Modern Woodmen v. Breckenridge, 75 Kan. 373, 89 Pac. 661, 10 L. R. A., n. s., 136; United Workmen v. Smith, 76 Kan. 509, 92 Pac. 710.
Other alleged errors argued by the defendant relate to the giving and refusal of instructions concerning forfeiture, custom, and waiver. The instructions requested, so far as they were in harmony with the 'de-eisions of this court and the views expressed in this opinion, were fairly included in those given, which, so far as they are criticized in the brief, are approved.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J..:
But two questions are presented in this case — whether a petition stated a cause of action, and whether an answer stated a defense or a partial defense. The action was brought by Mrs. May Benton against J. O. Benton. The petition, which was filed May 25, 1906, merely declared upon a written instrument in these words:
“Onaga, Kan., 2-24-1904.
“In the matter of the trusteeship of H. H. Benton and myself, I hereby acknowledge that I am personally indebted to Mrs. May Benton to the amount of $5993.62, which I agree to pay as soon as I can,' together with annual interest at the rate of 6 per cent, per annum.
J. O. Benton.”
The defendant maintains that the obligation he assumed in signing this was to pay the amount named only when he should be financially able to do so, and that it was incumbent upon the plaintiff to plead the existence of that condition to show that the paper had matured. The plaintiff contends that the words “as soon as I can” are too vague and indefinite to fix a time of payment, and that the note was therefore payable within a reasonable timé.
Courts generally hold that a right of action does not accrue upon a promise to pay when the debtor is able or when he can until such time as he shall have the financial ability to make payment, and therefore that in declaring upon such a promise the pleader must allege the existence of that condition. A number of decisions to that effect are gathered in volume 8 of Words and Phrases Judicially Defined, at page 7441, in volume 33 of the American Digest, Century edition, c. 1125, section 609, paragraphs c and l, and in volume 2 of Lewis’s edition of Greenleaf on Evidence, section 440, note 3. The following are additional cases to the same effect: Veasey v. Reeves, 6 Ind. 406; Barnett v. Bullett, 11 Ind. 310; Stanton’s Administrator and Heirs v. Brown, 36 Ky. *248; Eckler v. Galbraith & Lail, 75 Ky. 71; Martin v. Ferguson, 3 Ky. Law Rep. 445; Chism v. Barnes, 104 Ky. 310, 47 S. W. 232, 875; Mattocks v. Chadwick, 71 Me. 313; Halladay v. Weeks, 127 Mich. 363, 86 N. W. 799, 89 Am. St. Rep. 478; Denney & Co. v. Wheelwright & Co., 60 Miss. 733; Barker v. Heath, 74 N. H. 270, 67 Atl. 222; Cocks v. Weeks, 7 Hill (N. Y.) 45; Ingersoll v. Rhoades, Hill & Den. Supp. (N. Y.) 371; Work v. Beach, 13 N. Y. Supp. 678; In re Knob, 78 N. Y. Supp. 292, 38 Misc. Rep. 717; Tebo v. Robinson, 100 N. Y. 27, 2 N. E. 383; Cooper v. James, 128 N. C. 40, 38 S. E. 28; Nelson v. Bonnhorst, 29 Pa. St. 352; Scott v. Thornton, 104 Tenn. 547, 58 S. W. 236; Ruzeoski v. Wilrodt (Tex. Civ. App., 1906), 94 S. W. 142; Wright v. National Bank, 31 Tex. Civ. App. 406, 72 S. W. 103.
In Kincaid v. Higgins, 5 Ky. 396, a contrary doctrine is announced in these words, which, however, seem to be in conflict Vith the inter utterances of the Kentucky court':
“A promise to pay as Soph as the debtor possibly Can, Is in the contemplation Of law a promise to pay presently. The law supposes every man able to pay his •debts, and if the ability, to pay was a question to be tried, the only practicable mode of trial is per execution, ánd of this it is not yet too late for the defendant in the court below to have full benefit.” (Page 397.)
In the collection in Words and Phrasés already referred to four cases are cited which are against the general trend of the decisions. One of these (First Cong. Soc. in Lyme v. Miller, 15 N. H. 520) has recently been disapproved, if not formally overruled (Barker v. Heath, 74 N. H. 270, 67 Atl. 222). The others are Horner et al. v. Starkey, Adm’x, etc., 27 Ill. 13, 14; Norton v. Shepard, 48 Conn. 141, 142, 40 Am. Rep. 157; Cummings et al. v. Gassett, 19 Vt. 308, 310. To the minority list may perhaps be added: Walker v. Freeman, 209 Ill. 17, 70 N. E. 595, and Rolfe v. Pilloud, 16 Neb. 21, 19 N. W. 615, 970.
In most of the cases referred to the question presented was whether one who, for the purpose of avoiding' the bar of the statute .of limitations, relies upon a written promise of his debtor to pay when able must show that the promisor’s financial condition is such as to enable him to meet the obligation. Possibly a distinction might be made based upon that fact, although no reason is apparent why the rule adopted, if sound, should not apply to an original contract as well as to one made in renewal of a former obligation. Some of the cases seem to recognize a difference between the expressions “as soon as I am able” and “as soon as I can.” The latter form, being more informal and colloquial, may perhaps be regarded as a shade less definite, but the difference is too slight to justify a refusal to give it the same effect as the former. Notwithstanding the number of adjudications apparently to the contrary, we are of the opinion that the instrument here sued upon should be regarded as a promissory note payable within a reasonable time. In Jones v. Eisler, 3 Kan. 134, action was brought upon an instrument reading as follows:
“$237.37. Ottawa Creek, April 20th, 1860.
“For value received (in cutting stone) by Gouliep Anders, I promise to pay when I receive it from government for losses sustained in August, 1856, or as soon as otherwise convenient, the sum of two hundred and thirty-seven dollars and thirty-seven cents.
John T. Jones.”
The court said:
“The first question presented by the record is, When •did the note sued on become due? The note is not a conditional one. The maker owed the payee, who had performed labor for him. He declares in the paper that he has received the consideration, which all must admit was a valuable one. The existence of the debt was not made to depend upon a condition or contingency. Everything necessary to constitute a promissory note, except the time of payment, is clearly expressed. As to the time the language is peculiar.' It could not have been contemplated that if Jones never got his money from the government, or never should be in a situation when he could conveniently pay, that the money never was to be payable. Jones evidently expected within a reasonable’time to get the money from the government, or, failing in that, within a like time it would otherwise be convenient to pay. After- having performed work to the full amount of the note, it could not have been intended that Anders should never get his money unless Jones got his from the government or should find it otherwise convenient to pay. The intention of the parties doubtless Was that it should in any event be payable in a reasonable time, and such is the legal effect of the instrument.” (Page 138.)
This reasoning applies with equal force in the present case. It is true that so far as the actual decision is concerned a distinction could readily be made based upon the difference between a promise to pay when one should be able and a promise to pay when it should be convenient. The latter form is held to be tantamount to an agreement to- pay within a reasonable-time, upon the theory that otherwise the practical effect would be to give the promisor the option to refuse payment altogether. (Smithers v. Junker, 41 Fed. 101, 7 L. R. A. 264, and cases there cited. See, also, Kreiter v. Miller, I Penny. [Pa.] 46, and 7 Cyc. 857, par. d.) But the argument quoted is as convincing in the one case as in the other. A.note in which the maker without qualification acknowledges an indebtedness to-the payee and promises to pay it as soon as he can,, when subjected to a reasonable interpretation, can. not be construed as a conditional contract — as a contract to pay only in case he shall thereafter accumulate a certain amount of property, otherwise not. The-mere admission of the debt is sufficient to establish an absolute legal liability, lacking only the • element of maturity to make it available as a cause of action. It. is entirely inconsistent with the spirit and purpose of the engagement to suppose for a moment that the parties contemplated that the avowed obligation should never be capable of enforcement, even to the extent of the obligor’s ability to pay, unless he should become financially able to meet the entire obligation at once.
The trial court held that the petition stated facts sufficient to constitute a cause of action, and sustained a demurrer to a count of the answer which set out in detail the transaction out of which the instrument originated and alleged that it was given without consideration. The answer would seem to be good as a plea of want of consideration, unless the detailed facts showed affirmatively the existence of a good consideration. The facts so pleaded were substantially as follow: A. H. Benton (a son of the defendant) died testate in February, 1898, leaving a widow, the plaintiff herein (to whom shortly thereafter a child was born), and a minor son, who is not yet of age. The will, which was duly probated, reads in part:
“I . . . make the following disposition of my property . . . ten thousand dollars held in the New York Life disposed of as follows:
“(1) Two thousand dollars to unborn child at its majority.
“(2) Eight thousand dollars to wife, all of which is to be held in trust by J. O. and H. H. Benton [another son of the defendant] without bond — they to pay heirs such rate of interest as shall b.e agreed upon, until children become of age — and she remains unmarried— in such case money shall fall to my legal heirs.”
The trust referred to was accepted by the trustees, the money was paid over to them, and an agreement was made fixing 7 per cent, as the rate of interest. The posthumous child lived but a short time. About four years before the beginning of the action the plaintiff was married to H. ,H. Benton. The sum named in the note sued on was the amount of the trust fund then in the hands of the defendant.
We do not at this time pass upon the interpretation or effect of the will, for no definite question with respect thereto has been argued. The purpose of the testator seems to have been that the trustees should hold the $8000 until the children became of age, in the meantime paying interest to them and theis mother, and then turn the principal over to her unless she had remarried, in which case it should be divided among the three. At all events the children were intended to be beneficiaries of the trust to some extent, and the surviving child has apparently an interest in its continuance. In the brief of the plaintiff the situation presented by the pleadings is said to be:
“That certain trust funds had been paid over to J. O. Benton, that a settlement of the trusteeship was afterward had, and as a result of that settlement J. O. Benton became ‘personally indebted’ to May Benton in the sum of $5993.62, with interest. The wording of the instrument sued on clearly suggests this explanation of the transaction. Since J. O. Benton has himself declared the indebtedness to be a personal indebtedness of himself to May Benton, the court will not assume the existence of a contradictory state of facts, and, in the absence of an allegation of fraud or mistake, will not permit to be alleged or proven a state of facts which contradicts that written declaration of J. O. Benton. In other words, the court will assume that the indebtedness sued on is, in fact, a personal indebtedness, as J. O. Benton has declared it to be, and, if necessary in construing the instrument, will also assume that there had been a valid settlement of a previously existing trusteeship, resulting in the kind of an obligation which J. O. Benton declares it to be — a personal indebtedness.”
The difficulty in accepting this reasoning is that the answer not only sets out the facts with regard to the will and the proceedings thereunder, but goes further and alleges that apart therefrom there was no consideration for the instrument sued upon, thereby in effect pleading that no valid settlement of the trust had been had. Possibly the mere giving of the note and the bringing of an action upon it might be construed as a termination of the trust, as between the plaintiff and defendant, who were competent to act for themselves. But the surviving son is still a minor and could not be bound by mere consent to a transfer of the trust fund, even if such consent were shown. The recital in the note that the defendant is personally indebted to the plaintiff may be good evidence against him of a settlement of the trust, but it is not conclusive. The statement of consideration made in a written contract may ordinarily be contradicted. (9 Cyc. 368; 6 A. & E. Encycl. of L. 767, et seq.; 11 Cent. Dig., c. 200; 4 Wig. Ev. § 2433.) There is nothing contractual about this feature of the present agreement; it is tantamount to a formal acknowledgment of value received.
SYLLABUS BY THE COURT.
WILLS — Construction. Upon a question involving the interpretation of a part of a will reading “I . . . make the following disposition of my property . . . eight thousand dollars to wife, all of which is to be held in trust by J. O. and H. H. Benton without bond — they to pay heirs such rate of interest as shall be agreed upon, until children become of age — and she remains unmarried' — -in such case money shall fall to my legal heirs,” held, that the words “in such case” are equivalent to “in case she remarries.”
The specific facts stated in the answer do not show an indebtedness of the defendant to the plaintiff, at least not to the extent of the amount named in the note; therefore the allegation that the note sued on was not supported by any consideration raised an issue.
The judgment is reversed and the cause remanded for further proceedings. | [
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'The opinion of the court was delivered by
Burch, J.:
At the primary election held on August 4, 1908, Samuel Griffin and William Gesner were rival •candidates for nomination on the republican ticket for member of the house of representatives from the representative district composed of Barber county. On the face of the returns Gesner was successful. Griffin un-dertook.to institute a contest under section 2703 of the General Statutes of 1901, which provides that objections or questions relating to nominations for officers to be elected by the voters of a county shall be considered by the county clerk, clerk of the district court, and county attorney. The officials named met as a contest court, but declined to investigate the causes for contest, and this proceeding in mandamus was com menced to compel them to do so. The case is finally submitted upon a motion to quash the alternative writ,, which raises two questions: Has the contest court, organized as stated, jurisdiction of the controversy? And, if so, was it incumbent upon the contestor to make-his objections to the nomination of the contestee within three, days following the determination of the result of the election by the county board of canvassers? Section 10 of the new primary election law, which constitutes chapter 54 of the Laws of 1908, reads in- part, as follows:
“Conduct of ‘primary. (1) The provisions of existing statutes concerning elections and any amendment now or hereafter made thereto, so far as they are not inconsistent with the provisions of this act, shall apply to the primaries provided for in this act, and the following statutes shall apply to the subjects indicated, the intent of this act being to place the primary under the regulations and protection of the laws in force as to elections. . . . As to county canvass of returns, chapter 36, Laws of 1868, being paragraphs 2587, 2588, 2589, 2590, 2591, 2592, General Statutes of 1901; as to-state canvass of returns, chapter 36, Laws of 1868,. being paragraphs 2593, -2594, 2595, 2596, 2597 and 2598, General Statutes of 1901. . . . As to contests, article 6, chapter 36, and paragraph 830, of the General Statutes of 1901; provided, that all the powers and duties conferred and imposed by the laws of this state upon commissioners of elections, registration officers, judges and clerks of election, canvassing boards- and all other public officials in connection with general elections are in every detail and particular conferred and imposed upon each and all such officers in connection with the primary elections conducted under the provisions of this act.”
Legislation by reference to other acts sometimes produces decidedly crude statuses and frequently occasions' confusion and uncertainty in the law. Such legislation is prohibited by the constitutions of some of the states, but the method is not entirely condemned by the constitution of this state. (Wichita v. Telephone Co., 70 Kan. 441, 447, 78 Pac. 886.) When the references are as blind as they are in the primary election law it becomes a very difficult and perplexing thing for the people, for public officials and for the courts to know what the statutory provisions are upon the subjects involved.
In dealing with the subject of contests the statute quoted simply gorges article 6 of chapter 36 of the General Statutes of 1901. The most cursory consideration of this article reveals its general inadaptability to contests arising under the primary election law, but so far as controversies like this are concerned it is absolutely unworkable unless there should be a timely session- of the legislature, because it provides that contests relating to membership in the house of representatives are to be tried by that body.
On behalf of the defendants it is urged that, the subject of contests having been covered by an express provision of the primary election law, and that provision being useless, further endeavor toward a contest should cease. The express reference in the statute to contests puts it beyond well-founded contradiction that the legislature intended there should be a statutory remedy of that character. Whether fairness and justice require that there should be an opportunity to test the validity of a primary nomination in this way, and what course the courts themselves might pursue if no statutory procedure were prescribed, need not engage attention. In order that the will of the people may prevail the legis-' lature has clearly indicated its purpose that the formal returns of the result of a primary election which do not correctly exhibit the expression of that will may be. overridden by means of a contest. Finding a contest code on the statute-book, the legislature adopted it, but did not stop there. Both before and after the reference in section 10 to article 6 of chapter 36 of the General Statutes of 1901 there are clear statements that all existing laws applicable to the subject of general elec tions are brought to bear upon the subject'of primary ■elections, so far as they are consistent with the primary election law. These statements are as explicit and as mandatory, as those adopting the article just referred to, and the court is bound to search all the statute-books for general election laws which may be adapted to the fulfilment of the uses and purposes of the primary election law.
The matter of bringing upon the official ballot the names of the persons to be voted for is of course a subject of paramount importance under the .election laws. The act known as the “Australian ballot law” (Gen. .Stat. 1901, ch. 36, art. 9) deals with the subject. The primary election law subjects certain matters to the regulations contained in parts of this article. Other parts govern subjects referred to in the primary election law, and still others concern important matters which must arise and must be disposed of the same as before the primary election law was enacted. None of the provisions of this article is expressly repealed by the primary election, law, and under the well-settled canons of construction none of them consistent' with that law is impliedly repealed, even if they had not been expressly adopted by and incorporated into that law. Everything is saved that can be utilized in meeting exigencies arising in the accomplishment of the purposes of the primary' election law.
The Australian ballot law contains .the provision which was invoked by the plaintiff in his effort to contest his opponent’s nomination and which reads as follows :
“The certificate of nomination and nomination papers being so filed, and being in apparent conformity with this act, shall be deemed to be valid, unless objection thereto is duly made in writing within three days from the date said papers are filed with the proper officers. Such objections or other questions arising in relation thereto, in the case of nominations of state officers or ■officers to be elected by the voters of a division less than a state and greater than a county, shall be considered by the secretary of state, auditor of state, and attorney-general, and a decision of a majority of these officers shall be final. Such objections or questions arising in the case of nominations for officers to be elected by the voters of a county or township shall be considered by the county clerk, clerk of the district court, and county attorney; and the decision of a majority of said officers shall be final.” (Gen. Stat. 1901, § 2703:)
The adaptability of this section to the plaintiff’s needs manifestly depends upon what is meant by a certificate of nomination or nomination papers, and their filing with some proper officer. Primary elections were recognized as lawful methods of nominating candidates for office before the new law became effective. (See Laws 1891, ch. 115; Gen. Stat. 1901, §§2743-2750.) The Australian ballot law is framed in accordance with this fact. Omitting portions plainly rendered ineffectual by the new law, sections 2696 and 2697 of the General Statutes of 1901 contain 'the following provisions pertinent to this controversy:
“All nominations made by political parties shall be known and designated as ‘party nominations,’ and the certificates by which such nominations are certified shall be known and designated as ‘party certificates of nomination.’ Party nominations of candidates for public office can be made only by a . . . primary election.
“Any political party having a state or national organization, by means of a . . . primary election . . . may, for the state or municipality, or any lawfully organized portion of either, for which such .... primary election ... is held, nominate one person for each office that is to be filled therein at the next ensuing election, and . . . file a certificate of such nomination so made. . . . Where such nominations are made by primary election, the certificate shall be signed by the members of the board of canvassers to which the returns of such primary election are made.”
Section 2698 relates to “independent nominations,” distinguishes them from “party nominations” as defined in section 2696, and provides for the filing of “independent certificates of nomination.” Section 2 of the primary election law allows independent nominations to be made by nomination papers signed and filed as provided by existing statutes. (Laws 1908, ch. 54.) Section 2698 of the General Statutes of 1901 is of course one of these statutes, and its meaning would not be clear unless read with sections 2696 and 2697. The very purpose of the primary election law is. to regulate the organization and government of political parties and- to regulate party nominations to-office. Therefore, under the rule of construction adopted, the portions of sections 2696 and 2697 quoted above are still the law if anything can be found in the primary election law fairly analogous to a certificate of nomination signed by the members of a board of canvassers to which the returns of a primary election are made and filed with some proper officer.
As shown by the quotations frofli it, section 10 of the primary election law adopts the provisions of the general election law with reference to the county and state-canvass of election returns. Sections 13 and 14 duplicate the work of adoption, as appears by the following-extracts :
“Sec. 13. Canvass of votes and returns. (1) The canvass of votes cast shall, except as herein otherwise provided, be made in the same manner and by the same officers as the canvass of an election. . . . (3) The county canvass of the returns of a primary shall be made by the same officers and in the same manner-provided in section 10 of this act.”
“Sec. 14. State board of canvassers. (1) The state-board of canvassers provided to canvass the returns, of a November election shall constitute the state board, of canvassers of the primaries held under the provisions of this act and all the provisions of section 10 of this act, and of all existing statutes, and any amendments now or hereafter made thereto, relating to the-canvass of the return of the November election, shall,. as far as applicable, apply to the canvass, return and certification to the secretary of state of such primary. . . . (2) As soon as the state canvass of a primary shall be completed, the secretary of state shall publish in the official state paper a certified statement of the result of such primary as to candidates for state officers, United States senator, representatives in congress, state senators and state representatives, and all candidates whose districts extend beyond the limits of a single county.”
The. ultimate question, therefore, is whether the general election law provides for anything corresponding to a certificate of nomination like that contemplated by sections 2697 and 2703. The answer is to be found in sections 2587 to 2598, inclusive, of the General Statutes of 1901, which need be referred to only so far as members of the house of representatives are concerned. The county board of canvassers opens the precinct returns and determines who has received the greatest number of votes. This determination is reduced to writing, signed by the members of the board, and attested by the clerk, and then is attached to an abstract of all the votes cast (§ 2587), which the county clerk is required to make, certify, and file in his office (§ 2590). A copy of this abstract is then forwarded to the secretary of state (§ 2590), who opens it, files it, and records it (§ 2594). Sections 2596 and 2598 then provide as follows, modifications to meet the requirements of the primary election law being indicated by words in brackets:
“Sec. 2596. For the purpose of canvassing the result of [primary] elections the state board of canvassers shall meet at the office of the secretary of state [at 10 o’clock A. M. on the third-Tuesday of August, 1908, and biennially thereafter], when they shall, upon the certified abstracts on file in the office of secretary of state, proceed to examine and make statement of the whole number of votes given at any such election for state officers, justices of the supreme and judges of the district courts, the members of the senate and house of representatives, representatives in congress, and electors of president and vice-president of the United States, or for so many of said officers as may have been voted for at such election, which statement shall show the names of the persons to whom such votes shall have been given for either of the said offices, and the whole number given to each, distinguishing the several districts and counties in which they were given; they shall certify such statements to be correct, and subscribe their names thereto, and they shall thereupon determine what persons have been, by the greatest number of votes, duly [nominated] to such offices, or either of them, and shall indorse and subscribe on such statements a certificate of such determination, and . . . deliver them'to the secretary of state.”
“SEC. 2598. The secretary of state shall record in his office, in a book to be kept by him for that purpose, each certified statement and determination as made by the board of state canvassers, and shall without delay make out and transmit, to each of the persons thereby declared to be [nominated] a certificate of his [nomination], certified by him under his seal of office; and he shall also forthwith cause a copy of such certified statement and determination to be published in a newspaper published at the seat of government.”
It requires no argument to demonstrate that the certificate determining who has been by the greatest number of votes duly nominated, indorsed in writing on the statement of the result of the canvass, and subscribed by the members of the board of canvassers, is the full equivalent of a certificate of nomination by primary election under section 2697, and that its delivery to the secretary of state is a filing with a proper officer under section 2708.
It is true that under the old law the persons signing such a certificate attached to it an oath that the statements made therein were true to the best of their knowledge and belief. Primary elections were then voluntary affairs with the various political parties of the state, and the statutory guaranties of a fair election, including this oath, were not numerous. Now that the whole machinery of the election is placed in the hands of regularly elected and qualified public officers, an official certificate is certainly as much of a safeguard as the oath of a volunteer partisan, and the requirement of an oath may be considered as superseded by the express adoption of the official canvass law.
The phrase in section 2697 — “the board of canvassers to which the returns of such primary election are made” — is to be interpreted in the light of the conditions to which the old law applied and the radical changes wrought by the new law. In each case the board having final authority to declare the result of the election was intended. This board is now the state board of canvassers, so far as members of the house.of representatives are concerned.
The point is made that subdivision 4 of section 13 of the primary election law requires the county canvassers to make a duplicate return of the canvass of the votes for candidates not voted for wholly within the limits of a county, a copy of which the county clerk must send to the secretary of state by registered mail, while nothing of the kind was inserted relative to members of the legislature whose districts comprise only a single county, the argument being that the subject of returns to the state board of canvassers relating to some offices having been adverted to no others are to be made. The argument is answered by the statute itself. According to the opening sentence of section 13 and other of its provisions the general election law stands except as otherwise provided, so that the rule of expressio unius, etc., does not control.
It is contended that the contest court created by section 2703 was never concerned with anything except matters relating to the preparation of ballots preliminary to an election, and that it was never designed to try a contest over the result of an election. It is conceded that the section is unrepealed, and that the court provided for may still be utilized for the determina tion of questions relating to nomination papers like party petitions and independent certificates of nomination, but it is said that the functions of the contest court originally ceased with the final construction of the ballot to be voted at the election for which it was prepared. This argument overlooks the fact that the ballot involved was always the ballot to be used in the November election, and that one of the preliminaries to the preparation of that ballot might, under the old law, be a party nomination made through the medium of a primary election. The old primary law was very meager, but it did contemplate primary elections, and provided for certificates of nomination to be signed by the members of the boards of canvassers to which the returns of the primary were made. There can be no doubt that formerly, upon proper objection being duly made, matters affecting the integrity of such a certificate of nomination could be investigated and decided by this contest court. The new primary law, elaborate, state wide and compulsory,- is merely a substitute for the old, and the functions of the contest court, -which in the' preparation of the new law the legislature saw fit to-allow to stand, are precisely the same as they were before.
It follows from what has been said that the three days’ time allowed for filing objections to a nomination after the papers have been lodged with the proper officer begins to run, in the case of a member of the house of representatives, from the filing of the certified determination of the state board of canvassers with the secretary of state.
The peremptory writ is allowed. | [
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The opinion of the court was delivered by
Burch, J.:
In April, 1906, a judgment was rendered in this court in favor of the state ousting W. W.. Rose from the office of mayor of the city of Kansas-City. Subsequently, in violation of this judgment, Rose undertook to exercise the functions of the office named, his conduct in that respect being exhibited, of course, in Wyandotte county. He was cited for contempt, and on July 6, 1906, found guilty and fined in the sum of $1000. (The State v. Rose, 74 Kan. 262, 86 Pac. 296, 6 L. R. A., n. s., 843.) The fine was imposed by the court while sitting in Shawnee county, where-all its sessions are held. The fine was collected by the-clerk of this court, and was paid to him in Shawnee-county.
The counties of Wyandotte and Shawnee make separate claims to the- money, for the benefit of their respective school funds. The constitution contains the following provision:
“The proceeds of fines for any breach of the penal' laws shall be exclusively applied in the several counties in which the money is paid or fines collected, to the-support of common schools.” (Const., art. 6, § 6.)
Section 332 of the code of criminal procedure reads-as follows:
“All fines and penalties imposed and all forfeitures-incurred in any county shall be paid into the treasury thereof, to be applied to the support of the common, schools.” (Gen. Stat. 1901, § 5770.)
The jurisdiction of this court is coextensive with the territory of the state. Its sessions, however, must-be held in some locality within the confines of a county. The constitution requires one term each year to be held at the seat of government. The legislature may require other terms to be held elsewhere, but it has not done so. The question is, therefore, if the accidental circumstance of the present transaction of all the court’s busi ness at Topeka makes Shawnee county the beneficiary of all fines it may impose.
The words “fine,” “penalty” and “forfeiture” sometimes have technical and restricted significations, and at other times overlap and run together in meaning: When one of them is used in a statute or constitution the true intent must be ascertained according to the ordinary methods of interpretation. The same is true of the words “penal laws” found in the constitutional provision quoted.
It is not necessary that fines for contempts of this •court should have been specifically in the minds of the authors of either the constitution or the statute. The ■designation of a class includes everything properly belonging to the class. Jurisdiction to administer punishment by way of fines for contempts inheres as a common-law attribute in the grant of judicial power to the court. The law upon the subject of contempt is well defined and well understood, and its penal character ■can not plausibly be questioned. Indeed, proceedings in contempt, except in certain special cases, were criminal under the common law (Rapalje, Cont. 25; Oswald, Cont., Com. & Att., 2d ed., 99, 199), and this common-law quality of criminality continues to characterize them to such an extent that general provisions of the ■code of criminal procedure are frequently applied to them. (The State v. Dent, 29 Kan. 416; In re Simms, Petitioner, 54 Kan. 1, 4, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St. Rep. 261, and cases there cited.) Therefore there can be no doubt that the money in controversy represents the proceeds of a fine, and of a fine imposed for a breach of the penal law.
The constitution does not undertake to say into what particular treasury fines for breaches, of the penal laws •shall go. Its purpose was to provide for the support of the common schools, and it simply restricts the use to be made of moneys paid and fines collected in any •county for breaches of the penal laws to the purpose ■designated. The aim of the statute was to aid and to ^supplement the constitution. It did this by making it a specific official duty to pay all fines and penalties duly collected into the county treasury, and included in the -requirement all kinds of forfeitures. In addition to this, fines and penalties are described as imposed (by -.the court) and forfeitures as incurred (by the delinquent party) “in any county,” and it is said that both must be paid “into the treasury thereof.” But the legislature certainly did not mean to make the act of The court in one case, and the act of the -party in the -other, determine into what county treasury the money shall go.
The imposition of a fine or penalty necessarily presupposes forbidden conduct by the party punished, and jurisdiction of the court over the offense. In all ordinary cases of breaches of the penal laws jurisdiction will lie where the offender incurs liability to the fine or -penalty the same as where an offender incurs a forfeiture. The fines, penalties and forfeitures contemplated by the statute are all pecuniary — moneys which •are paid into the treasury and are placed in the school fund; and altogether they make up a single class— -moneys recovered by way of some sort of punishment, and not as damages by way of compensation or reparation. No valid reason can be urged for the legislature to ignore the locality of the offense when making -distribution of fines and penalties and to seize upon such locality as the determining factor of distribution 'in the case of forfeitures. It can scarcely be assumed that the legislature acted without reason and through mere capriciousness ' made this arbitrary distinction "between moneys of the same class. Instead of this, it must be assumed that the same primary and fundamental consideration governed in both cases, and that the words “all fines and penalties imposed ... in any county” (Crim. Code, § 332) have bound up in 'their meaning, and therefore imply, the further idea of “as a result of liability incurred therein.”
The court regards this as the rational interpretation, of the statute quoted, and fines, penalties and forfeitures all alike should be paid into the treasury of the-county in which the liability therefor was incurred, in the absence of other statutes indicating a different disposition. No such statute exists applying to fines imposed by this court.
Insistence upon the strict, narrow and 'literal meaning of the words employed in each would bring the.constitution and the statute into conflict. One speaks, of the county in which the money is paid or collected;, the other of the place where judgment is rendered and. the place where the cause of action accrues. The constitution being paramount, the money in controversy would go to Shawnee county, because it was paid to the: clerk of the court at his office in that county. But this-interpretation would lead to the absurdity that if payment had been made in Wyandotte county, where thecontemner lived, or if the money had been collected, there, that county would have been entitled to it.
It is a common practice for the legislature in the enactment of new penal statutes to make the fines imposed or penalties inflicted payable to the treasury of' the county where the offense is committed, for the-benefit of the school fund. It is argued that these-statutes show an intention to make exceptions to the provisions of section 332 of the criminal code, quoted above, but they are so numerous as to indicate that, they do no more than make spontaneous and unstudied declarations of a firmly settled policy. The same legislative understanding of the subject is disclosed in section 48 of the code of civil procedure, which reads as follows:
“Actions for the following causes must be brought in the county where the cause, or some part thereof,, arose:
“First, an action for the recovery of a fine, forfeiture or penalty imposed by a statute, except that when it -is imposed for an offense committed on a river or other stream of water or road which is the boundary of two or more counties, the action may be brought in any county bordering on such river, watercourse or road, and opposite to the place where the offense was committed.”
The motion of Wyandotte county for an order directing the clerk of this court to pay the fine in controversy into its treasury, for the benefit of the school fund, is allowed, with costs. The similar motion on behalf of Shawnee county is denied. | [
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The opinion of the court was delivered by
MASON, J.:
William Johnson was charged with the larceny of a diamond shirt-stud and convicted of an attempt to commit that offense. On appeal he claims that the evidence necessarily showed that if he tried to steal the property referred to he was successful— that he was either entirely innocent or guilty of the completed offense. If this contention is well founded it requires a reversal of the judgment, for the statute provides:
“No person shall be convicted ... of any . . . attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person ... in pursuance of such attempt.” (Gen. Stat, 1901, § 2285.*)
The owner of the diamond testified to these facts: He was asleep in a chair-car while wearing the stud; he was awakened by some one tugging at his shirt-front; he arose, and, discovering that the diamond was gone, seized the defendant, who was standing near, and accused him of taking it; the defendant denied having done so, and made a motion with his hand, after which the diamond was found upon the floor. The complaining witness doubtless believed that the defendant had the diamond in his hand and threw it from him by the motion referred to. If the jury had been satisfied of this they could only have found him guilty of the completed offense — not of a mere attempt. The fact that after the defendant was seen to make the motion with his hand the diamond was found on the floor of the car about where it would have fallen if cast from him by that motion gives strong ground to suppose that at one time he had complete possession of it, but does not com-, pel that conclusion. The jury may have believed that in his effort to grasp the diamond he succeeded only in dislodging it from its place and causing it to fall to the floor, or so loosening it that it fell when the owner arose. In either case the offense of larceny was not committed. The defendant not having had complete and exclusive control of the property, even momentarily, the element of possession by him was lacking. :
“Possession is not taken until the thief exercises a complete and exclusive control over the thing taken. Merely striking the hand of a person and knocking money to the ground, where it is lost, is not a taking into possession so as to constitute larceny. So, to jostle another so that a watch and chain drops from him is not a sufficient taking of the watch to constitute larceny.” (25 Gyc. 21.) •
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff, Mary Roberts, sued to recover damages for the death of her husband through the alleged negligence of the defendant city in allowing-a windmill, a part of the municipal water-works system,, upon which he was at work for the city, to become defective and dangerous, thereby causing his death. The city admitted the ownership of the structure, and that1 Mr. Roberts was killed by falling from it, but denied that he was in its employ, and pleaded contributory negligence.
The evidence tended to show that the windmill was and had been for several years in charge of the city marshal, who superintended the repairs thereon, employed workmen for that purpose, gave them directions, and approved their bills, which were audited by the council and paid by the city; that the deceased was oiling the mill when he fell from a ladder affixed to the tower of the windmill, the ladder being in a decayed and defective condition, causing the rungs to loosen and give way; that this defective and dangerous condition had existed for a considerable time, and it had been reported verbally by the marshal to the council at a meeting of that body more than a year before the injury, the marshal informing the council that “the wheel was in bad shape and that the ladder needed some repairs, and that if it was not done someone would get hurt.” This oversight of the windmill and of the repairs thereon had continued during the official terms of two marshals before that of the incumbent under whom the deceased appeared to be working, and in a few days after the accident this marshal employed another workman to repair the ladder, who was paid by the city. Bills of other workmen as well as of the deceased for repairs on the mill were paid by the city. It was shown that at least one councilman had personal knowledge of Roberts’s work upon the mill on previous occasions, that all of them must have known of the allowance of his bills therefor, and that the marshal was superintending the work, his “O. K.” upon the bills being required. There was no evidence of any official action by the mayor and council instructing the marshal to cause the repairs to be made or placing the windmill in his charge.
The court sustained a demurrer to the evidence, upon the ground, as we infer from the briefs, that such for:mal action was not shown, and because there was no 'direct evidence of the actual employment of Roberts at the time he was injured. Such employment, however, may, with proper limitations, be implied against municipal corporations as well as individuals. Judge Dillon says: •
“The present state of the authorities clearly justifies the opinion of Chancellor Kent, that corporations may fee bound by implied contracts within the scope of their powers, to be deduced by inference from authorized corporate acts, without either a vote, or deed, or writing. This doctrine is applicable equally to public and private corporations, but in applying it, however, care must be taken not to violate other principles of law. Thus it is obvious that an implied promise can not be raised against a corporation, where by its charter it can only contract in a prescribed way, except it be a promise for money received or property appropriated under the contract.” (1 Dill. Mun. Corp., 4th ed., § 459.)
(See, also, Town of New Athens v. Thomas et al., 82 Ill. 259.)
The city by the operation of the windmill supplied water for public purposes. Repairs upon it are incidental to such operation. That- they were being made must have been known to the council. The acts of the marshal in causing such repairs to be made, if not directly authorized, were ratified from time to time for a long period before the injury occurred and almost immediately afterward, and the circumstances were such that the authority in the particular instance could have been fairly implied. This does no violence to the rule that persons dealing with public officers must ascertain the nature and extent of their authority. In matters of this nature which are the proper subjects of municipal action, where there is no provision of law requiring that such authority shall be given by formal action of the governing body, it . may be shown by a course of conduct which induces others honestly to assume and rely upon its existence.
“The general rule is unquestionable that a municipal corporation is not bound by the unauthorized act of an individual, whether an officer of the corporation or a mere private person, but the corporation may so deal with third persons as to justify them in assuming the existence of an authority in. another, which in fact has never been given.” (Davies v. Mayor, etc., of City of New York, 93 N. Y. 250, 253.)
In Mound City v. Snoddy, 53 Kan. 126, 35 Pac. 1112, reviewing an action to recover for services as an attorney, the court said:
“The court below properly instructed the jury that if the city; knowing the facts in relation to the employment, permitted Snoddy to act as attorney and represent the city, its conduct would operate as a ratification and acceptance of the acts of the mayor in making the employment, and that the city would be liable for what his services theretofore rendered were reasonably worth, unless with reasonable promptness it had notified him to discontinue the services.” (Page 130.)
The evidence offered tended at least to prove that when the deceased was injured he was in the employ of the city and that there was negligence in failing to furnish him a safe place to work, and should have been submitted to the jury.
The question of contributory negligence presented in the brief of the defendant was also one for the jury to decide.
Further evidence was offered by the plaintiff tending to show that a former marshal had exercised care and control of the windmill and employed men to repair it, with the knowledge and implied assent of the mayor and council. This, in connection with other evidence tending to show that this oversight was continued by his successors to the time of the injury, was proper. Evidence having been offered from which the authority of the marshal to employ the deceased might have been inferred, it follows that all competent evidence of such employment should have been allowed. Some evidence of this nature appears to have been rejected because of the view apparently taken that there was no evidence of the marshal’s authority to employ him.
Some other errors are alleged in excluding testimony, but with the principles now announced it is not deemed necessary to refer to the rulings in detail. The judgment is reversed, and the.cause remanded for a hew trial. | [
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Per Curiam:
It has been announced so often that if a defendant in a criminal case enter a plea of guilty it is within the discretion of the court whether it will allow the plea to be withdrawn and a plea of not guilty to be entered that the proposition does not need reiteration. Here the defendant was represented by able counsel of well-known standing at the bar from the commencement of the proceeding. Several months elapsed before arraignment. No inducement was offered or pressure brought to bear upon him from any source respecting his pleading guilty. He does not claim to be deficient in understanding or that his attorneys misled him in any particular. The claimed misapprehension in his own mind of the consequence of his plea is not entitled to nearly as much consideration as the one held inconsequential in the case of The State v. Yates, 52 Kan. 566, 35 Pac. 209. The voluntary plea of guilty solemnly entered by the defendant while he was duly attended by his counsel was the highest evidence of guilt, and the court did well to weigh with caution the defendant’s affidavit, filed after the jury had been discharged for the term, stating that he had looked further into the evidence for and against him and had found that it ought to be submitted to a jury, and that he was innocent. Very clearly the district court did not abuse its discretion in refusing to allow the plea of' guilty to be withdrawn.
The information charged all the elements of a public offense. It merely did not extend to all the details which the utmost certainty might require. The court could pronounce judgment upon conviction according to. the right of the case, and that is sufficient. (Crim. Code, § 109.) The motion in arrest of judgment was. properly denied.
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The opinion of tfee court was delivered by
Graves, J.
On, April 28, 1904, E. S. Bliss com-, menced this suit in the district court of Cowley county to set aside a conveyance of real estate as having been made to hinder, delay and defraud creditors, and to subject the premises to the payment of a judgment lien held by the plaintiff against the grantor, J. W. Brown. The grantee in the conveyance, Julia Reinhardt, re covered judgment for costs, and plaintiff brings the case here by proceedings in error.
Defendants in error have presented a motion to dismiss the petition in error, which will be considered as a preliminary question. The facts involved in this motion, briefly stated, are as follow: The judgment was rendered June. 26, 1906. The motion for a new trial was filed the next day. On July 5, 1906, the hearing of the motion was postponed to July 7, 1906. These proceedings were had during the June, 1906, term of court. Nothing further was done concerning the motion until December 27, 1906, which was during the November, 1906, term of court, at which time the motion was argued, submitted, and taken under advisement by the court until February 12, 1907, when it was. denied, and ninety days from that date was given to. the plaintiff to make and serve a case-made. No. further extension of time was thereafter granted.. Afterward the plaintiff apparently abandoned the idea, of having the case reviewed on the case-made, and proceeded to make the evidence taken in the case a part of the record, so as to obtain a review upon a transcript. Accordingly, on June 18, 1907, long after the time given to make a case-made had expired, he obtained a certified copy of the evidence from the stenographer, and on June 19, 1907, caused the same to be filed in the office of the clerk of the district court. The certificate of the stenographer to this transcript reads:
“I, J. A. McDermott, .official stenographer and reporter of the nineteenth judicial district of the state of Kansas, and for the district court of Cowley county in said district, do hereby certify that the above and foregoing is a full, true and correct transcript of all of the evidence introduced or offered by either party on the trial of the above-entitled action in said court, and of all objections, motions, applications and offers made by either party thereto; the rulings of the court thereon and the exceptions saved by either party; and I do further certify that such transcript contains all of the evidence of each witness who was sworn and testified on said trial, and contains all proceedings had on said trial.
“Witness my hand at Winfield, Cowley county, Kansas, this 18th day of June, 1907.
J. A. McDermott,
Official Stenographer and Reporter, Nineteenth Judicial District of Kansas.”
On June 19, 1907, written notice that such transcript had been filed, and that the plaintiff intended to appeal the case to the supreme court, was filed with the clerk, and service thereof was personally made upon defendants’ attorneys of record. Notice of the plaintiff’s intention to submit the transcript of the evidence to the judge for settlement was waived by the defendant’s attorneys of record, July 9, 1907, which waiver reads:
“We, the undersigned attorneys for the defendants in the above-entitled action, hereby waive notice of the presentation of the court stenographer’s record for approval, and state that we have no amendments to suggest to said record and consent, that the same be settled and approved by the court at any time, within ten days from this date, without notice to us.
“Dated this 9th day of July, 1907.
“Filed July 15, 1907, Robert R. Hamilton, Clerk District Court.”
On July 16,1907, the transcript was presented to the judge, who attached his certificate thereto, which reads:
“Now, on this 16th day of July, 1907, comes the plaintiff, by Torrance & Bloss, his attorneys, and presents to me at my chambers at Winfield, Cowley county, Kansas, the transcript of evidence, rulings and exceptions of the court at the trial of this case to approve, confirm and allow the same, as the true and correct transcript, and it appearing that Hackney & Lafferty, attorneys for the defendants, have waived formal notice and consent that the court may pass upon the record at this time, and that the defendants have had due notice, I therefore find that said transcript is a true and correct transcript of all of the evidence, rulings and exceptions had at the trial of this case, duly certified by the court stenographer, and the same is here now, by the court, approved, confirmed, and allowed.
C. L. Swarts,
Judge of the District Court of Cowley County, Kansas.”
Upon these facts defendants insist that the motion to dismiss should be allowed upon four grounds: (1) No notice of the filing of the transcript of the evidence was given as required by law. (2) The district court lost jurisdiction to entertain or decide the motion for a new trial, and, therefore, the case can not be reviewed in any form for errors which might have been corrected upon such motion. (3) The record of the evidence does not appear to be complete. (4) Neither the certificate of the clerk nor that of the judge shows the transcript to be full, true, correct and complete, and the judge is without authority to certify to a transcript of the record:
The decision of this motion requires an examination of section 1 of chapter 320 of the Laws of 1905. The object of this section was to provide steps whereby matters not theretofore regarded as a part of the record could be made so, and to enable parties to have cases reviewed upon a transcript of such record instead of by a case-made. Under the provisions of this section a transcript of the evidence, when properly served and filed with the clerk of the district court, becomes a part of the record of the case in which it is filed without further action, unless objections are made and amendments suggested thereto. To prevent partial or incorrect transcripts from becoming a part of the record under this proceeding it is provided that notice of the filing shall be given, “as is or shall be provided by law’ for the notice of filing of a case-made with the clerk when service of a case is so made.” This is the notice the sufficiency of which is challenged by the motion.
It is contended that when a party wishes to place the evidence taken at the trial of a case upon the rec ord application for leave to do so must be made to the court at the time judgment is entered, and time taken therefor, as is done when a case-made is to be made and served, and that such time may be thereafter extended, as is provided in such cases. No such order or extension having been granted in this case, it is claimed that the notice given was without authority and void.
We do not concur in this interpretation of the statute. The proceeding to bring evidence upon the record, and that to prepare and settle a case-made, are separate and independent from each other. The preparation and settlement of a case-made is regarded as a part of the trial, and, except for the statute, could not be made after the close of the term of court at which the trial occurred. Provision is therefore made for a continuance of the term, so far as that case is concerned, for the purpose of preserving the power of the judge to make this final order in the case. On the other hand, it is a matter of choice with the parties whether they bring the evidence upon the record or not. It is a matter about which the judge, need not be consulted. When these steps are taken by the party is unimportant, except that it will be unavailing unless done before the right.to have the case reviewed expires by lapse of time. There may be good reasons why the same procedure should be had in both instances, but the statute has not so provided. It will be observed that the language of the section concerning the giving of notice describes it as being such notice “as is or shall be provided by law for the notice of filing of a case-made with the clerk when service of a case is so made'.” What this service is may be ascertained by reference to section 3 of such chapter, which provides that when a case-made is served by filing it with the clerk written notice thereof shall be given immediately by service of a copy of such notice upon the adverse parties or their attorneys of record, personally or by mail. In this case the notice that a transcript of the evidence had been filed in the office of the clerk of the district court and that plaintiff intended to appeal the case to the supreme court was served personally upon the attorneys of record for the defendants on the 19th day of June, 1907, being the same day that the transcript was filed with the clerk. This notice was a sufficient compliance with the requirements of this, statute. It notified the defendants of what had been done, and the purpose thereof. They were thereby warned to take the necessary steps to protect themselves. This statute also provides that the transcript so filed may be amended by the judge in the same manner as is provided for amendments to the case-made. The manner of doing this is described in section 4 of this statute, which makes it the duty of the' adverse party, within fifteen days after the filing of the case-made, to suggest amendments thereto. The plaintiff in this case, apparently for the purpose of saving this time, gave notice to the defendants that he would present the transcript to the judge and have its accuracy determined. This having been done with the consent, of all parties, the action of the judge must be regarded' as of the same effect as if amendments had been suggested by the defendants and acted upon by the judge.
As to the second ground of the motion, we do not think that the court lost jurisdiction of the motion for1 a new trial because it was not considered and determined on July 7, 1906, to which time it had been postponed. It, like other unfinished business, remained for consideration, and, by operation of law, would be postponed from term to term until determined.
As to the third ground of the motion, we think by the terms of the statute the transcript is fully authenticated by the certificate of the stenographer, and without other authentication it becomes a part of the record unless its sufficiency is challenged by the adverse parties. The statute, in substance, provides that when the transcript is so certified and filed it “shall become a part of the record in said cause and any transcript of such record shall include a copy of such evidence.” (§1.) This clearly indicates that a transcript of the evidence, certified by a stenographer, becomes a part ■of the record unless thereafter questioned by the adverse party. This seems to be the clear meaning of the .statute, and it also seems to be a reasonable provision. If both parties are satisfied that the transcript furnished by the stenographer is correct, no further authentication would seem to be necessary. If not, the notice given to the adverse party furnishes him with an ■opportunity to examine the transcript and correct any error therein before it becomes a part of the permanent record.
As to'the fourth ground, the certificate of the clerk, being in the language prescribed by the rules of this •court, will be deemed sufficient. The purpose of the •certificate of the judge being merely to settle disputes concerning the sufficiency of the transcript, it does not stand in the same category as an ordinary certificate to a transcript.
On the whole we think that the record challenged by the motion is a sufficient transcript to confer jurisdiction upon this court to review the errors complained •of in the petition in error. As it does not purport to be a case-made its sufficiency in that respect need not be considered. The motion to dismiss is denied.
The facts involved in the merits of the case are substantially as follow: J. W. Brown expected to inherit the land in controversy from his mother, who was seventy-three years of age, in feeble health, and liable to die at any time. On March 10, 1904, J. W. Brown and wife conveyed the land to Julia Reinhardt. At the time of this conveyance the plaintiff was the owner of a judgment against Brown for the sum of about $400. The mother of J. W. Brown died April 15, 1904. The conveyance from Brown to Reinhardt was a warranty deed. The question is, Did she take the land free from the judgment lien? The district court, upon a trial without a jury, found generally in favor of Reinhardt. The petition states fully all the facts relating to the transaction, and contains a general allegation that the conveyance was made without consideration and as the result of a conspiracy to defraud the plaintiff. In view of the court’s judgment and the evidence in the abstract that part of the petition must be regarded as not sustained. The plaintiff contends, however, that aside from this averment the circumstances of the conveyance show that, in law, it was subject to the judgment lien.
The defendants insist, first, that there was no lien of which Mrs. Reinhardt had notice, either actual or constructive; second, that if Brown owned any interest in the land after the conveyance it was merely a naked legal title, to which a lien could not attach; third, that the allegation of fraud being the principal point in the case, failure in that means failure in the whole case.
Assuming that the conveyance was made for value, and in good faith on the part of both parties, it could not affect the title to the land. The grantor did not hold the slightest present interest in it. The whole title, legal and equitable, belonged to his mother. This deed was a nullity so far as her title to the land is concerned. When she died her title necessarily went somewhere, as the title to real estate can never be without an owner. The owner, at the time of her death, had made no disposition thereof which became effective, and therefore its subsequent ownership could only be determined by operation of law. Mrs. Reinhardt, as against the deceased owner, held no right to the land whatever. She was a stranger. Under the law of descents and distributions the land descended immediately to the son, J. W. Brown. It was his; nothing prevented him from successfully asserting ownership except his transaction with Mrs. Reinhardt. As against every other person it belonged to him; but it would have been a fraud upon her for him to repudiate the: conveyance, and the law of estoppel would prevent him from doing so. (Clendening v. Wyatt, 54 Kan. 523, 38 Pac. 792, 33 L. R. A. 278.) A court of equity would, doubtless recognize and uphold this conveyance as between the immediate parties thereto, but would not, in. so doing, interfere with the rights of other persons.. In contemplation of law the conveyance to Mrs. Reinhardt carried to her the same interest therein that she-would have received if it had been executed after the' death of J. W. Brown’s mother, and no more. She-took the land subject to the debts of her grantor. These propositions seem too clear to justify the citation, of authorities.
It is contended that the judgment in question did not become a lien for the reason that it was not recorded' as required by law, and did not impart notice to Mrs.. Reinhardt. The judgment was rendered by a justice* of the peace, and was filed in the district court. The-statute upon this subject reads:
“In all cases in which a judgment shall be rendered' by a justice of the peace, the party in whose favor the judgment shall be rendered may file a transcript of' such judgment in the office of the clerk of the district court of the county in which the judgment was rendered; and thereupon the clerk shall, on the day on which the same shall be filed, enter the case on the appearance docket, together with the amount of the* judgment and time of filing the transcript; and shall, also enter the same on the judgment docket, as in case of a judgment rendered in the court of which he is: clerk.
“Such judgment shall be a lien upon the real estate* of the judgment debtor from the day of filing the transcript, in the same manner and to the same extent as-if the judgment had been rendered in the district, court.” (Civ. Code, §§ 518, 519.)
It may also be done by filing an abstract of the judgment as provided by section 5352 of the General Statutes of 1901. (Justice’s Civ. Code, § 119.) The only evidence of a compliance with the statute presented in: the case is a copy of the civil appearance docket of the district court, which reads:
“E. S. Bliss, H. C. Hargis, Attorney. •J. W. Brown and H. B. Brown. Transcript from L. H. Webb, J. P. Court.
There is an entry on the execution docket which appears to have been made April 3, 1904. This entry reads:
“Title of case, E. S. Bliss v. J. W. Brown and H. B. Brown.
Abstract Q. P. 509.
Date of judgment, Nov. 9, 1896.
Date of issue, April 3, 1904.
To whom issued — Sheriff of Cowley county.
Debt, $218.48.
Costs, $48.35 — $12.55.”
The sheriff made return of no property found.
No objection was made to the introduction of these entries on the appearance docket, and the only objection made to the entries on the execution docket was that they were made April 3, 1904, long after the execution of the conveyance to Mrs. Reinhardt. The mother of Brown was alive, however, and the owner of the land in controversy. These entries, while not the best evidence that a transcript of the judgment was filed with the clerk of the district court, are some evidence of that fact. The statute expressly requires that the transcript of a judgment rendered by a justice of the peace, when filed, shall be entered upon the appearance docket. The entries therein are made in the performance of an official duty, and the presumption of law follows that they were rightfully and properly made. These entries show that a transcript of the judgment from the court of L. H. Webb, a justice of the peace, was filed in that office. They also give the date and amount of such judgment, and the names of the parties thereto. The entries on the execution docket corroborate these facts, and, all together, are sufficient to establish prima facie that such a transcript was. properly filed as provided by law. It will be observed that it is the filing of the transcript that gives the lien, and not the entries made by the clerk. The party files the transcript. He can do no more. It is the clerk’s duty to make the required record, but if the perform anee of this duty is delayed, or even omitted, the lien is not lost. The transcript, when filed, becomes a public record, which imparts notice as fully as if properly recorded. (Poplin v. Mundell, 27 Kan. 138; Lee v. Bermingham, 30 Kan. 312, 316, 1 Pac. 73.)
We conclude that Mrs. Reinhardt took the land subject to the lien of this judgment. The judgment of the district court is therefore reversed, with direction to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
MASON, J.:
The only question here involved is', whether the trial court erred in holding a tax deed,, which had not been of record for five years, to be invalid as a conveyance of title.
The charge for which the land was sold included two-penalties of fifteen cents each. By the terms of the statute which requires the county clerk to add these-penalties to the tax-roll (Gen. Stat. 1901, § 7621) their amount, computed with mathematical exactness, would, have been 14 85/100 cents. The statute also provides-that the clerk in making up the tax-roll shall reject' fractions of a cent. (Gen. Stat. 1901, § 7614.) In this-instance he obviously entered the penalty at the nearest whole number — fifteen cents — instead of calling it' fourteen cents, as the plaintiffs in error claim he should have done. It is argued that the amount for which the-land was sold was therefore two cents in excess of what, it should have been, and that this fact is fatal to the deed, inasmuch as in tax proceedings the principle that' the law ignores trifles does not apply. The addition of' any amount, however small, to a legal charge has often been held to vitiate a tax deed, but only in cases where the excess results from an intentional overcharge.. Thus in Genthner v. Lewis, 24 Kan. 309, it was said:
“Whatever may be the rule where a trifling mistake-may have occurred in the calculation, or may have been, occasioned by an error in making or copying the figures, or in carrying out the various amounts, we think the great weight of authority is to the effect that,, where it is plainly the purpose of the officer to include illegal sums within the amount for which land is sold for taxes, and the sale includes the illegal sums, that, circumstance renders the sale void.” (Page 312.)
And in Ireland v. George, 41 Kan. 751, 21 Pac. 776, it was said:
“Where it is shown that the sale has been for a trifle more or less, and yet where there is no intention of selling for a greater or less sum than that provided for by law, such discrepancy will not vitiate the tax-sale proceedings.” (Page 755.)
The excess in the present instance is due, not to a purpose to add a charge that is not authorized, but to a mistake in calculation, resulting from a misconstruction of the statutory rule of computation.
However, the deed is invalid for another reason. In the recital of the consideration the amount said to be charged for “costs” is separated from that charged for “taxes, interest and penalties,” and is stated to be $1.10. No theory has been suggested to account for such an amount of costs, apart from taxes, interest and penalties, except upon the assumption that it includes, a charge for making, and perhaps for recording, the deed. This court has held that a tax deed which has been of record for more than five years will not be set. aside because such charges are included in the consideration stated, although properly they have no place there, and that to sustain such a deed it will be assumed wherever possible that any excess in such statement was occasioned in that manner. (Martin v. Garrett, 49 Kan. 131, 140, 30 Pac. 168; Kennedy v. Scott, 72 Kan. 359, 83 Pac. 971.) But no case has been cited holding that a tax deed can withstand an attack, made in due time, based upon the inclusion in the consideration of charges for issuing or recording it. On the other hand, the decisions referred to and many others tend to support the view that until the expiration of the period of limitation no presumptions are to be indulged to remedy defective recitals. The deed here involved shows a consideration greater than the law authorizes. It can not be assumed that the excess was occasioned by including the clerk’s fee for issuing the deed, even if such. assumption would remedy the defect. As the deed showed that it was founded in part upon an unauthorized charge, the trial court properly set it aside.
SYLLABUS BY THE COURT.
’Tax Deeds — Consideration—Date of Payment of Subsequent Taxes — Printer’s Fees — Presumptions. Even in the case of a tax deed less than five years old, in the absence of any showing as to the facts, the payments of subsequent taxes by the holder of the certificate must be presumed to have been made at any date consistent with the recitals of the deed that would support its validity, and if necessary for that purpose it must also be presumed that the publications of the notice of sale and the redemption notice were made for less than the rates named in the statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Plaintiff in error brought this action to recover damages in the sum of $1885, alleged to have been sustained by an assault and battery. On the trial to a jury a verdict for the plaintiff was returned for the sum of $15. Plaintiff filed a motion for a new trial, which was denied, and judgment was rendered in ac cordance with the verdict. The only error assigned is the denying of the motion for a new trial.
It is urged that the jury could not have come to the conclusion that the plaintiff was damaged only in so small an amount except by disregarding the instructions of the court and the evidence of several undisputed witnesses. The instructions only limited the amount of recovery to the amount claimed in the petition. If, as a proposition of law, all the undisputed testimony of the witnesses was to be taken as true, we should not hesitate to say the plaintiff was entitled to a much larger verdict and judgment, approximating perhaps the full amount claimed. Such, however, is not the law. It was the province of the jury to determine in' the first instance the credibility of the witnesses, and what their testimony proved, even though the witnesses were not contradicted. (Harrod v. Latham, 77 Kan. 466, 95 Pac. 11; Jevons v. Railroad Co., 70 Kan. 491, 78 Pac. 817; Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68; Avery v. Railroad Co., 73 Kan. 563, 85 Pac. 600; Railway Co. v. Watkins, 76 Kan. 813, 92 Pac. 1102.) When a motion for a new trial upon the ground that the verdict is not supported by the evidence is presented, it becomes the duty of the trial judge to reconsider and. weigh the evidence according to the verdict and give it such weight as he deems it entitled to.
In. this case the amount of damages the plaintiff was entitled to recover was a question of fact for the jury to determine. The jury pronounced their conclusion thereon by their verdict, and the trial court approved the verdict and rendered judgment for the amount specified therein. The judgment will not be reversed because the evidence would seem to justify a larger amount of damages.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a damage action arising from personal injuries sustained by the plaintiff, a pedestrian, in an auto-bile accident in Wichita, wherein the plaintiff was struck and injured by a stolen automobile driven by one Stephen Williams.
The defendant was the owner and operator of a private automobile garage repair business and was charged with negligence by the plaintiff for leaving the keys in the automobile while it was parked on the private grounds of the defendant’s place of business. After discovery had been completed the trial court, upon a stipulation of the material facts at the pretrial conference, sustained the defendant’s motion for summary judgment.
The underlying questions are: (1) Whether it is negligence to leave an automobile on private property, unattended and unlocked with the keys in the ignition, and if so; (2) whether that negligence is a proximate cause of the injury sustained by the plaintiff herein.
John E. Breising (defendant-appellee) operates his automobile garage repair business under the name of K. B. S. Motor Company at its present location of 2648 North Arkansas Avenue, Wichita, Kansas. Prior to operating the garage at its present location, he was in the same business at 2745 North Broadway, Wichita, Kansas.
The zoning classification for Breising’s property is commercial. Located to the north of the premises in question is the Ramsey Dairy; to the east is a vacant lot; to the south is the residence of Loretta Seavey; and to the west across the street is the RamseyKester used car lot.
While the appellant herein attempts to depict Mr. Breising’s place of business as located in the middle of a slum area filled with criminals and juvenile delinquents, the area and neighborhood surrounding the business premises in question is shown by photographs in the record to represent a fairly normal location for business activity.
On the 9th day of November, 1967, Harold Roberts brought his 1963 Oldsmobile to Breising for repair. The repairs were completed on the 13th day of November, 1967, and pursuant to the request of Roberts, Breising parked the car on his premises just outside the building. On the afternoon of the day in question Roberts had called at Breising’s shop and ásked whether the repairs to his automobile had been completed. Breising told Roberts that if the repairs were completed during the afternoon of November 13, 1967, he would park the car in front of the shop so that Roberts could pick it up. Roberts informed Breising he would come by about 6:30 that evening, and if the car was not out on the lot he would assume Breising had not completed the repairs. There was nothing said about leaving the keys in the ignition when the conversation took place. At approximately 6:00 p. m. Mr. and Mrs. Roberts drove by and saw their automobile in the garage with the hood up. Mr. Roberts assumed the repairs had not been completed inasmuch as there was an agreement to park it outside only if the repairs had been completed. At about 6:45 p. m. Breising parked Roberts’ 1963 automobile on the parking lot outside of the building with the keys in the ignition. Breising then closed the shop and went home for dinner. When he returned to the shop at about 8:00 p. m. for some evening work, he noticed the automobile was gone and assumed Mr. Roberts had picked it up.
Sometime between 6:45 and 8:00 p. m. on the evening in question the Roberts car had been stolen from its location on Breising’s premises by two boys, Roger Wyant (age 15) and Paul Allen (age 14). These boys drove the car around Wichita until approximately 7:30 that evening. They then parked it in front of the KWBB radio station located at 28th and Salina Streets and started home. On the way home they met Stephen Williams in the Safeway parking lot at 25th and Arkansas Avenue and told him about the automobile.
The three boys went back to the automobile and Stephen Williams drove it around for awhile. Later Stephen Williams was returning the automobile to Breising’s place of business, but upon noticing him in the garage working, drove on to 25th and Shelton where all three boys left the automobile and went to their respective homes.
The next morning, November 14, 1967, Stephen Williams returned alone to the automobile and drove it again. He picked up a friend, Dennis Stout, and while driving the automobile around Wichita he struck the plaintiff near 13th and Santa Fe Streets.
The appellant stresses facts in the stipulation disclosing that teenage or younger children frequented the general area and Breising occasionally saw them walking down the alley behind his garage, walking down the sidewalk in front or cutting across his property. He stresses thefts reported of automobiles from the Ramsey-Kester used car lot on June 16, 1967, August 25, 1967, and September 30, 1967. He also stresses that police records reflect break-ins at the Ramsey Dairy on June 15, 1967, and December 14, 1967. He relies on the fact that Breising had knowledge of these car thefts and break-ins. He also relies on the fact that on Memorial Day, May 30, 1967, a 1961 Rambler sedan was stolen from Breising’s lot. This automobile and its keys had been delivered by the owner, Sutherland, to a Mr. Ramsey who in turn delivered the automobile and keys to Breising. Apparently the vehicle was left on the K. B. S. lot with the keys in the ignition.
Loretta Seavey, who lived near the premises, testified by deposition the neighborhood was not too good and had deteriorated in recent years because a lot of minority group people had moved in the area. She had observed boys getting in and out of cars on the used car lot, and read of boys getting into trouble, many of them having addresses around the neighborhood.
The appellant concedes the instant case is one of first impression in Kansas.
Counsel for the appellant quotes the following words from Dean Robert W. Miller of the Syracuse University Law School contained in an article entitled “Tort Law in Evolution,” appearing in the April/May, 1969, issue of Trial magazine, reading:
“Tort law is not static, nor should it be. It must be a growing thing in order to serve society well.
“Changes in tort law are produced by statute and by court decision. Legislative change is not uncommon, but the changes brought about by court decisions are perhaps more typical of the dynamic nature of tort law: . . .” (p. 29.)
He then argues the foregoing quotation establishes the frame of reference within which the facts of the instant case and the duties and responsibilities arising therefrom must be considered. He relies upon general rules in tort law heretofore discussed by this court with considerable detail in Steele v. Rapp, 183 Kan. 371, 327 P. 2d 1053. Further discussion herein will proceed on the assumption the reader is familiar with the case.
The rule with which we are here concerned is stated in Steele v. Rapp, supra, as follows:
“The rule that the causal connection between the actor’s negligence and an injury is broken by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. (Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; and Emmerich v. Kansas City Public Service Co., 177 Kan. 443, 280 P. 2d 615.)” (Syl. f 3.)
Turning to the courts from other jurisdictions which have passed upon the question here presented, the majority of the courts hold there is no liability as a matter of law. (See annotation, 91 A. L. R. 2d 1326.) Various reasons have been stated by the courts as supporting this conclusion. (See Prosser on Torts [3rd Ed.] Ch. 9, § 51, pp. 282, 323.)
The only statute in Kansas which pertains to unattended vehicles is K. S. A. 1970 Supp. 8-573a. This statute has no application here because it does not relate to unattended vehicles on private property, and furthermore it was not enacted until 1968, after the accident in question. This statute, similar to those enacted in other states, prohibits a person, from leaving the keys in the ignition in an unattended automobile on a public thoroughfare.
The appellant did not argue in the trial court, nor does he raise the point on appeal, that the foregoing statute or any other statute has application to the instant case.
It is well established that before one can be held responsible for his negligent act the actor’s negligence must be the proximate •cause of the injury sustained. This leads to the fundamental law in negligence cases which was so aptly stated in words of Justice Cardozo speaking for the court in the landmark case of Palsgraf v. Long Island R. R. Co. (1928 ) 248 N. Y. 339, 162 N. E. 99, where it was said:
“. . . ‘Proof of negligence in the air, so to speak, will not do’ . . .
. . The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. . . (pp. 341, 344.)
The duty arising out of the relation between individuals, which imposes upon one person a legal obligation for the benefit of another, was discussed in some detail, together with the Palsgraf case, in Steele v. Rapp, supra.
Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance before an act is said to be negligent, there must exist a duty to the individual complaining, and the observance of which would have averted or avoided the injury. The plaintiff who sues his fellowman sues for a breach of duty owing to himself. The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. (Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 283, 454 P. 2d 124.)
Breising may have owed a duty to Roberts, who owned the automobile in question, not to leave his automobile on the premises unattended, unlocked, with the keys in the ignition. But Breising’s conduct was not a wrong and did not result in a breach of duty owing to the appellant merely because it may have been a breach of duty owing to Roberts.
This principle was made abundantly clear in Shafer v. Monte Mansfield Motors (1962 ) 91 Ariz. 331, 372 P. 2d 333. There the defendant left the ignition key in an automobile which was located in the rear of an unfenced lot along an alleyway containing several automobiles. A thief drove the car away and negligently collided with another automobile occupied by the plaintiff. The trial court granted judgment notwithstanding the verdict, and the plaintiff appealed contending it was for the jury to decide whether it was negligence for the owner of a vehicle to leave the keys in the ignition under these circumstances. In affirming the trial court it was said on appeal:
“We have previously set out three elements as necessary for a case of actionable negligence; (1) there must exist a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) the defendant must fail to perform that duty; and (3) an injury to the plaintiff must proximately result from such failure. If no reasonable man could find that under the circumstances all three elements are present, then a directed verdict or judgment n. o. v. is proper. . . .
“The element with which we are here concerned is the scope of the duty owed by defendant. . . .
‘“. . . before liability may be imposed for an act, the prevision of a reasonable person must be able to recognize danger of harm to the plaintiff or one in plaintiff’s situation. The risk which must be anticipated to convert an act into a wrong is a risk of harm not to anyone but to plaintiff or “to another or others within the range of apprehension.” ’
“In view of the great weight of authority in other jurisdictions holding that as a matter of law the duty of one who leaves his keys in an unattended vehicle does not extend to a plaintiff injured in an accident with the converter of the car, and in the absence of further evidence that in this case the duty should be so extended, we hold that the trial court did not err in granting its judgment notwithstanding the verdict.” (pp. 333, 334.)
Another illustration appears in McKinney v. Chambers (Tex. Civ. App. 1961) 347 S. W. 2d 30. There the defendant left a vehicle unattended and unlocked with the ignition key in the switch in a parking lot at a time when such lot was not open for business. A thief stole the vehicle and negligently collided with a car driven by the plaintiff. The trial court granted summary judgment for the defendant, and in affirming, the appellate court observed:
“‘Negligence is a failure to observe a legal duty. Moreover, to constitute negligence at all, there must be a violation of a duty owed to the very person claiming on the ground of negligence. . . .’
“. . . in order for a defendant to be held to have been negligent, the injury to the plaintiff must have been foreseeable. . . .
“. . . It can not be held that the appellee [defendant] could reasonably foresee that a thief would steal his car, negligently drive it, and injure a third party, and for such purpose hold the appellee liable.” (pp. 31, 32.)
Under the foregoing authorities, which we find to be persuasive, the act of Breising in leaving Roberts’ automobile on his property unattended, unlocked, and with the keys in the ignition, did not consti tute a violation of any duty owed by Breising to the appellant as a matter of law. The fact the appellant was injured as a result of the negligent driving by a thief or his successor was not a reasonably foreseeable consequence of Breising’s conduct. Breising’s duty simply did not extend to the appellant. Breising left Roberts’ automobile parked just outside the building on his premises at 6:45 p. m. on November 13, 1967, so that Roberts could pick it up when he went home for dinner. Upon Breising’s return to work at 8:00 p. m., one hour and fifteen minutes later, the automobile had been stolen by Wyant and Allen, contrary to Breising’s assumption that the owner had picked it up. Here the accident in question giving rise to the present controversy did not occur until the next day when it was driven by a successor in possession to the thieves.
Assuming it was negligent for Breising to leave the keys in Roberts’ car on his property unlocked and unattended, the issue is not whether it was foreseeable that Robert’s vehicle would be stolen as the appellant urges in his brief; rather, the inquiry is whether the independent intervening act of negligence committed by Williams, the successor in possession to the thieves, in driving the stolen vehicle was reasonably foreseeable. Under the weight of authority such an independent intervening act of negligence is not foreseeable as a matter of law, thereby rendering Breising’s act of negligence to be a remote cause and the intervening act of negligence of Williams to be the direct and proximate cause of the injury sustained by the appellant.
Whether the negligent conduct of the original wrongdoer is to be insulated as a matter of law by the intervening negligent act of another is determined by the test of foreseeability. If the original actor should have reasonably foreseen and anticipated the intervening act causing injury in the light of the attendant circumstances, his act of negligence would be a proximate cause of the injury. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which recovery is sought. When negligence appears merely to have brought about a condition of affairs or a situation in which another and entirely independent and efficient agency intervenes to cause the injury, the latter is to be deemed the direct and proximate cause and the former only the indirect or remote cause.
In Stone v. Bethea (1968) 251 S. C. 157, 161 S. E. 2d 171, the defendant left his automobile at his place of business in an area designated for parking unlocked with the keys in the ignition. Shortly thereafter the car was stolen, and as a result of negligent driving by the thief, a collision occurred injuring the plaintiff. A directed verdict for the defendant was affirmed on appeal, the-court stating:
“It is our conclusion that under the evidence in this case that the intervening independent act of negligence and willfulness on the part of the thief who stole-the respondent’s [defendant’s] automobile was the sole, proximate and efficient cause of the injury to the appellant [plaintiff] and such could not have been foreseen by the respondent under the attendant circumstances and was not a proximate cause resulting from any act of negligence on the part of the-respondent.” (p. 164.)
On a similar set of facts the Supreme Court of Minnesota in Kalberg v. Anderson Bros. Motor Co. (1958) 251 Minn. 458, 88 N. W. 2d 197, said:
“. . . the theft might reasonably have been foreseen, nevertheless, the original actor should not be held liable for the tortious act of a thief while the car was being driven by such thief or his successor in possession. . . .” (pp. 459, 460.)
Other decisions of like import are: Curtis v. Jacobson (1947) 142 Me. 351, 54 Atl. 2d 520; Clements v. Tashjoin (1961) 92 R. I. 308, 168 Atl. 2d 472; McAllister v. Driever (4th Cir. 1963) 318 F. 2d 513; and Frank v. Ralston (W. D. Ky. 1956) 145 F. Supp. 294, affirmed in 248 F. 2d 541 (6th Cir. 1957).
Our court has heretofore held the failure to anticipate a criminal act is not negligence. (Hendren v. Ken-Mar Airpark, 191 Kan. 550, 564, 382 P. 2d 288.)
Cases upon which the appellant has relied in his brief, and which we have rejected on the facts here presented are: Anderson, Aplnt. v. Bushong Pontiac Co., 404 Pa. 382, 171 Atl. 2d 771; Murray v. Wright, 166 C. A. 2d 589, 333 P. 2d 111; Hergenrether v. East, 61 C. 2d 440, 39 Cal. Rptr. 4, 393 P. 2d 164; Canavin. v. Wilmington Trans. Co., Aplnt., 208 Pa. Super. 506, 223 Atl. 2d 902; Mezyk v. National Repossessions, 241 Or. 333, 405 P. 2d 840; Gaither v. Myers (D. S. Cir. 1968) 404 F. 2d 216; and Justus v. Wood, 209 Tenn. 55, 349 S. W. 2d 793, 348 S. W. 2d 332.
For the reasons heretofore stated the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a verdict and judgment convicting the defendant of the offense of procuring an abortion contrary to the provisions of K. S. A. 21-437.
Defendant’s motion for a new trial was overruled and he was sentenced to confinement in the Johnson County jail for one year. He has appealed.
Although the constitutionality of the Kansas Abortion Act is challenged, we need only to consider appellant’s first contention which reads:
“The trial court erred in failing to grant defendant’s motion to dismiss because the information under which defendant was charged was jurisdictionally defective in that it failed to negatively aver the statutory exception — that the act charged was not ‘necessary to preserve the life of such woman’. Omission of an essential element of the offense renders appellant’s conviction void for lack of jurisdiction over the subject matter.”
We are inclined to agree with appellant’s contention. The information, with formal parts omitted, states:
“I, Hugh H. Kreamer the undersigned, Assistant County Attorney of said County, in the name, and by the authority, and on behalf of the State of Kansas, come now here, and give the Court to understand and be informed that on or about the 15th day of June a. d., 1969, in said County of Johnson, and State of Kansas, one Austin Lyrrell Jamieson did then and there Unlawfully and willfully administer to Susan Thoms, a pregnant woman, certain substance and did use or employ certain instruments, commonly known as a catheter tube and others, the names of which are unknown, with the intent thereby to procure an abortion or miscarriage of said woman.
“Contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Kansas, as he is informed and verily believes.”
The abortion act (K. S. A. 21-437) in effect at the time of the offense attempted to be charged reads:
“Every physician or other person who shall willfully administer to any pregnant woman any medicine, drug, or substance whatsoever, or shall use or employ any instrument or means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall upon conviction be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.” (Emphasis supplied.)
There have been numerous rules stated in an attempt to determine when an exception in a criminal statute must be stated in the information.
One of the earlier rules relied on by appellant placing emphasis on the location of the exception in the statute, was repudiated by this court in State v. Eary, 121 Kan. 339, 246 Pac. 989, where it is said:
“The rule that exceptions contained in the clause of a statute creating an offense must be negatived, was adopted by this court at a very early day, from Archbold’s Criminal Pleading and Evidence, and regarded form rather than substance:
“ ‘The law on this point is plain and is well stated in Archbold’s Criminal Practice and Pleading, page 118, as follows: ‘“If there be any exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant or the subject of the indictment does not arise within the exception. If, however, the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it is in that case matter of defense for the other party, and need not be negatived in the pleading.”’ (State of Kansas v. Thompson, 2 Kan. 432, 436 [1864].)
“We now regard substance instead of form, and unless the exception, where-ever found, inheres so integrally in the offense that liability would necessarily be precluded unless the exception were expressly negatived, it is a matter of defense. . . .” (p. 343.)
The well established rule in all jurisdictions is that there must be negative averment of an exception where it constitutes an integral part of the offense defined in the statute.
In State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750, we stated at page 410:
“. . . The office of an exception in a statute is well understood. It is intended to exempt something from the scope of the general words of a statute or to qualify or restrain the generality of the substantive enactment to which it is attached. The relative position of an exception is unimportant since the act must be construed as a whole. It may, as here, appear in a section by itself, and when that is done it has precisely the same meaning that it would have if the exception were appropriately incorporated in the other section. (50 Am. Jur., Statutes, §431, p. 451.) We conclude that 21-356 is not merely defensive as the state contends, but constitutes an integral part of the offense defined. As thus construed, the burden rests upon the state to allege and prove that the articles sold or exposed to sale on Sunday were of the kind and character included in the statute’s prohibition and were not those excepted.” (Emphasis supplied.)
The general rule may be found in 1 C. J. S., Abortion, § 21, p. 327:
“Following the rules applicable to indictments and informations generally, where there is an exception in the statute defining abortion, which exception forms a part of the description of the offense so that the ingredients thereof cannot be accurately stated if the exception is omitted, the indictment must negative the exception, otherwise the offense defined by the statute is not charged. This averment should be made in terms which are direct and certain, and it should not be set out parenthetically or in ambiguous terms.”
There may sometimes be a dispute as to just when an exception constitutes as integral part of the offense. In State v. Ferron, 122 Kan. 845, 253 Pac. 402, this court announced in a very concise rule for determining just when an exception is an integral part of the offense charged. We stated:
“. . . A governing rule is that if the allegations of the information may be true and the defendant still be innocent, the information is bad. . . .” (p. 847.)
The defendant in the present case might be found guilty of the abortion and still be innocent under the language of the statute creating the exception.
The appellee in its brief stresses the use of the word “unlawful,” stating:
“, . . The Information filed herein alleges that the acts performed were performed in an ‘unlawful’ manner, which although failing to recite all the details, which utmost certainty might require, still fully apprised the defendant of the crime with which he was charged. . . .”
The manner of the performance of the abortion might be unlawful and still not constitute an offense under the statute if necessary to save the life of the mother. It was stated in State v. Bridges (Mo.), 412 S. W. 2d 455, at page 458:
“. . . It does not follow, however, from the fact that the abortion was unlawful and felonious that the abortion was not necessary to save the mother’s life. The necessity might exist and the act yet be unlawful and felonious by reason of the manner in which the defendant performed the act. A charge that the act was done unlawfully and feloniously does not supply the missing required allegation that the abortion was not necessary to preserve her life.”
It might also be noted here that the appellee cites cases dealing with the burden of proof. We make no comment other than to say that we are now dealing with the allegations of an information.
The appellee also relies on the case of State v. Perello, 102 Kan. 695, 171 Pac. 630, where this court held that an exception in the intoxicating liquor law need not be stated in the information. In the Perello case this court went to considerable pains to state why the case was an exception to the general rule. It stated at page 697 of the opinion:
“The statute we are considering defines the offense, and in the same clause uses the language, ‘except druggists or registered pharmacists as hereinafter provided.’ Section 5 of the act enumerates the particular condition under which liquor may be delivered to certain persons engaged in the wholesale drug business and to registered pharmacists actually and in good faith engaged in the retail drug business, these exceptions being coupled with elaborate provisions designed to prevent evasion of the law. The language in section 1, ‘except druggists or registered pharmacists as hereinafter provided,’ does not set forth, nor does it purport to state, except in most general terms, the nature of the exceptions in favor of druggists and registered pharmacists. It is a mere parenthetical expression thrown in to show that in another part of the act provisions will be found which except certain classes of persons from the operation of the statute. As held in the Oklahoma case just cited [Smythe v. State, 2 Okla. Crim. 286.], we think the rule contended for by the appellant should never apply where the matter of such exception or proviso does not enter into and become a material part of the description of the offense. . . .”
In 1 Am. Jur. 2d, Abortion, § 18, p. 198, we find the general rule stated as follows:
“Under statutes which provide in effect for the punishment of anyone who supplies or administers a medicine, drug, or substance to a pregnant woman, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless such act is necessary to preserve her life, the authorities generally hold that the indictment must allege that production of a miscarriage was not necessary to save her life. . . ."
We are forced to conclude that the exception in K. S. A. 21-437— “unless the same shall have been necessary to preserve the life of such woman” — is an integral part of the definition of the offense of abortion, and the failure to negatively aver the exception in the information constituted a fatal defect.
It necessarily results that the conviction must be set aside and the defendant discharged from the judgment and sentence.
It is so ordered.
APPROVED BY THE COURT. | [
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