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The opinion of the court was delivered by
Price, C. J.:
In one information, defendant Sherman Coleman was charged with three counts of grand larceny as that offense is defined by K. S. A. 21-533.
On count No. 1 he was convicted as charged. On count No. 2 he was convicted of the lesser included offense of petty larceny as defined by K. S. A. 21-535. As to count No. 3 he was discharged at the conclusion of the state’s evidence.
Having twice previously been convicted of felonies (second degree burglary and larceny, and grand larceny) defendant was sentenced to confinement in the penitentiary for a term of not less than 15 years under K. S. A. 21-534 and 21-107a. On the petty larceny conviction he was sentenced to jail for not more than 1 year, the two sentences to run concurrently.
The principal grounds urged in this appeal are that the court erred in denying defendant’s motion for a severance of the several counts in the information, or, in the alternative, in failing to require the state to elect on which count he would be tried, and that at the close of the state’s evidence the court erred in denying his motion to sever the several counts for separate trials, or, in the alternative, in failing to require the state to elect.
There is no occasion to detail the evidence.
Count No. 1 charged the theft of some $3,000.00 from the office of a Topeka supermarket on a Sunday afternoon in June 1968. Defendant, a negro, and wearing a small goatee, was positively identified by store employees as being “half in and half out” of the unattended office where the money was kept. He and a woman companion left hurriedly in a black 1957 Chevrolet car, the license number of which was traced to him.
Count No. 2 charged the theft of money from the cash, drawer of a gasoline filling station on the same Sunday afternoon. On this occasion a negro, wearing a small goatee, and who was positively identified as defendant, drove a black 1957 Chevrolet car into the station and ordered two dollars worth of gasoline. While the attendant was servicing the car defendant went into the unattended office. A few minutes later he came out, paid for the gasoline, and, instead of driving ahead normally, hurriedly backed his car out into the street and drove off. Upon entering the office the attendant discovered the cash drawer had been broken open and an undetermined amount of money was missing.
Count No. 3 charged the theft of an auto-stereo machine from the sales counter of a Topeka store on the day before the Sunday afternoon in question. A negro man, wearing a small goatee, and positively identified as defendant by the proprietor, hurriedly backed a black 1957 Chevrolet car from in front of the store while the proprietor was servicing a customer at the back of the store. A few minutes later it was discovered that the stereo machine was missing. (As stated, however, defendant was discharged by the court as to this count.)
The rule in this jurisdiction is that where separate and distinct felonies are charged in separate counts of one information, and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, a defendant may be tried upon all of the several counts of the information in one trial, and further, the determination of such matter rests in the sound discretion of the trial court (State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Hacker, 197 Kan. 712, 421 P. 2d 40, cert. den. 386 U. S. 967, 18 L. ed. 2d 119, 87 S. Ct. 1050; State v. Anderson, 202 Kan. 52, 446 P. 2d 844; State v. Collins, 204 Kan. 55, 460 P. 2d 573).
It was not error to deny defendant’s motion for a severance, or, in the alternative, in failing to require the state to elect.
It further is contended the trial court erred in denying defendant’s motion for discharge on counts Nos. 1 and 2 at the close of the state’s evidence for the reason the evidence was insufficient to support a conviction, and that the verdict of the jury was contrary to the evidence.
Neither contention is good. The evidence definitely placed defendant — who was positively identified — at the scene and time of the two larcenies. If a conviction is supported by evidence — it is not to be set aside because a jury fails to believe a defendant’s version of what occurred. The verdicts of guilty were fully supported by the evidence. No complaint is made of the instructions and we must assume the jury was properly instructed on all aspects of the case.
No error being shown — the judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action for an accounting from an oil purchasing company for a share of oil produced from leased land.
The appeal involves construction of an entirety clause in the lease under which the oil was produced. A cross-appeal concerns the validity of a separate conveyance upon which plaintiffs’ claim is based.
We summarize certain background facts as stipulated by the parties prior to trial. On July 3, 1924, C. A. Mermis and his wife Paulina executed and delivered to George W. Holland as grantee an instrument entitled “Sale of Oil and Gas Royalty” in which for a consideration of $7,000 they conveyed an undivided one-fourth interest in the oil and gas minerals produced from the west half of a described quarter section of land in Russell county, the instrument reciting that the property was subject to a particular oil and gas lease. This instrument was not filed of record with the Russell county register of deeds until March 10, 1925 — more than ninety days after its execution.
On June 13, 1936, Paulina Mermis, a widow, owner of the west half mentioned above, executed and delivered to the same George W. Holland an instrument entitled “Ratification of Mineral Deed”. This instrument, which was primarily intended to ratify and confirm the July 3, 1924, document, because of possible ambiguity in the latter, was duly recorded June 15, 1936. Plaintiffs are the successors in interest to George W. Holland, who died December 22, 1946.
On June 18, 1956, the same Paulina Mermis executed and delivered to Leo J. Dreiling as lessee an oil and gas lease covering the entire quarter section for a primary term of two years. This lease was duly recorded the same day. Neither plaintiffs nor their predecessor in title ever joined in the execution of this or any other lease covering the quarter section.
Production of oil under the Dreiling lease was obtained on wells located on the east half of the quarter section. Stanolind Oil Purchasing Company, predecessor of defendant Pan American Petroleum Corporation, purchased the first oil produced therefrom on August 16, 1956, and production from wells on the east half has continued to date. No production has ever been obtained from the west half of the quarter section. On November 12, 1956, Stanolind obtained and issued a division order covering oil payments attributable to the production on the east half. Under this order Mrs. Mermis was to be paid all the landowner’s one-eighth royalty for the production, and she was so paid by Pan American and its predecessors in title during her lifetime and until September 1, 1965. Thereafter payment was made to the executors of her estate until the land was sold to Curtis Warren and Lloyd J. Witt, then payment was made to them until May 19, 1967, when Witt died and his share was paid to the administrator of his estate until the commencement of this suit. All royalty payments since September, 1967, have been impounded by Pan American pending determination of ownership in this litigation. Plaintiffs have never received any royalty based on production under the Dreiling lease.
No claims were ever filed against the estates of Paulina Mermis or Lloyd J. Witt and the time for filing such claims has expired.
The mineral interest conveyed by the two instruments from the Mermis s to George W. Holland was never separately valued and listed for ad valorem taxation in Russell county. Russell county has never separately valued and listed non-producing mineral interests in that county. The oil run recipients paid the ad valorem taxes assessed by Russell county on the oil royalty attributable to them.
August 28, 1967, plaintiffs commenced this action by filing their petition naming Pan American as defendant. They alleged the execution of the three instruments we have mentioned; that at the time the Dreiling lease was executed the premises were owned in severalty and by reason of an entirety clause in that lease plaintiffs were entitled to 1/64th of the proceeds of all oil produced and they asked for an accounting. Plaintiffs’ claim for an apportionment of royalty is against Pan American only.
Pan American answered, asserting among other matters, the defense of laches and estoppel by conscious inaction and delay and, by way of third party practice, it brought into the action as defendants Curtis Warren, the Witt heirs and the executors of the Paulina Mermis estate so that it might be reimbursed by them if held liable to plaintiffs.
In trial to the court the court had before it the stipulated facts already summarized and in addition heard evidence offered by the parties.
In deciding the issues the trial court made two separate rulings. First, it held that the two instruments to George W. Holland together constituted a valid mineral deed effective June 13, 1936, conveying to Holland an undivided one-fourth of the minerals in and under the west half of the quarter section in perpetuity and it further quieted the title to such mineral interest in plaintiffs. By way of cross-appeal defendants have challenged these findings and orders. Second, it ruled that the entirety clause under which plaintiffs were claiming was not applicable inasmuch as Mrs. Mermis could not and did not lease the undivided interest owned by plaintiffs in the west half of the quarter section, therefore that interest was not a part of the “leased premises” as that term was contained in the entirety clause. Plaintiffs have appealed from that ruling.
At trial the third party defendants sought to shield their interest in the oil runs by having the conveyance upon which plaintiffs base their claim declared void. The cross-appeal reasserts the same defense. Since such declaration would terminate this litigation we first consider the cross-appeal.
Defendants advance two contentions. They assert the “Sale of Oil and Gas Royalty” instrument of July 3, 1924, was void when it was not recorded within ninety days after execution and was not listed for taxation, as provided by R. S. 1923, 79-420. Defendants also assert a void instrument cannot be ratified, contending the so-called ratification instrument of June 13, 1936, could not validate the earlier void one. The parties have presented arguments pro and con upon these issues but in our view these matters need not be determined.
Plaintiffs contend, and we think correctly so, that the 1936 instrument itself constituted a valid conveyance. We need not recite the two instruments. Evidently the parties were uncertain as to whether an ambiguity existed in the first instrument and it was to resolve any doubt that the second one was executed (see discussion in XVI JRK, Distinctions Retween Royalties and Mineral Deeds, p. 28). The trial court treated the instruments as mineral deeds and for our purposes here we need make no further determination respecting their character. The third party defendants’ attack upon the initial instrument is premised on the assumption it was in fact a mineral deed as distinguished from a royalty transfer.
Suffice it to say the second instrument described in detail the interest conveyed, using the correct legal description, and it also contained the following language:
“. . . the said Geo. W. Holland is to have and own an undivided one fourth (%) interest in and to the mineral rights upon the above and foregoing described land and real estate. . . .”
The instrument was signed and acknowledged by Mrs. Mermis as owner and was duly delivered and recorded. Valid consideration appears.
To create or transfer an interest in oil and gas in place there must be compliance with the usual requirements for the transfer of an interest in land (1A Summers, Oil and Gas, § 134, pp. 245-249; 2 Williams and Meyers, Oil and Gas Law, § 439.2). Here we have a written memorandum sufficient to satisfy the statute of frauds, proper description, use of appropriate words of grant therein, delivery and acceptance of the instrument, consideration, and finally timely recordation under 79-420. No other requisites for a valid conveyance appear to be wanting. The trial court correctly found the existence of a valid mineral deed in and to an undivided one-fourth of the minerals in the west half of the quarter section in George W. Holland effective June 13, 1936, and the cross-appeal is not sustained.
We turn now to the principal appeal. Plaintiffs’ claim to a proportionate share of royalty is based on- a provision, commonly known as an “entirety clause”, in the Dreiling lease. This clause provided:
“If the leased premises are now or hereafter owned in severalty or in separate tracts, the premises, nevertheless, may be developed and operated as an entirety, and the royalties shall be paid to each separate owner in the proportion that the acreage owned by him bears to the entire leased area. There shall be no obligation on the part of the lessee to offset wells on separate tracts into which the land covered by this lease may hereafter be divided by sale, devise, or otherwise, or to furnish separate measuring or receiving tanks for the oil produced from such separate tracts.”
Their argument is this: Mrs. Mermis had a right to execute a lease with an entirety clause; in 1956 she did so by leasing the entire quarter section to Dreiling; when production was obtained plaintiffs were entitled to a proportionate share of the royalties by reason of the entirety clause, even though the production was only upon the east half of the quarter section.
In 3 Kuntz, Oil and Gas, § 45.4, under the heading “Correlation of royalty clause with entirety clause” we find this discussion as to the background and purpose, of the entirety clause:
“Ordinarily, one important deliberate and calculated effect of the entirety clause is to overcome the non-apportionment rule which is applied in most jurisdictions. Under such rule, when the land under lease has been subdivided after the delivery of the oil and gas lease and the lessors interest is owned in severalty, the royalty on production from a well is paid to the lessor or lessors only to the extent of their interests in the tract where the well is located, despite the fact that such well satisfies the drilling clause and the habendum clause of the lease as to all of the land described in the lease and consequently serves to hold the lease by production. Such application of the non-apportionment rule produces dissatisfaction on the part of the lessors who own parts of the leased premises where there is no well. A dissatisfied lessor invariably sees an urgent necessity for further development of the lease by the drilling of a well or wells on the tract owned by such lessor. Further, even if there are many wells and such wells are evenly distributed so as not to be objectionable to the lessors, the lessee may find the situation objectionable in that he may be required to duplicate equipment and to install additional measuring tanks or meters, where production from all of such wells is not uniform in quality and volume. If the lease provides that the lessors must bear the expense of additional equipment which is required as the result of a subdivision of the land after a lease is granted, such added expense will provide the lessors with an additional reason to be dissatisfied. In order to overcome the objections just mentioned and to maintain harmony among all of the interested parties, as well as to make certain that the obligations of the lessee to develop the property will not be increased by any conveyance by the lessor, an entirety clause is frequently inserted in an oil and gas lease.” (pp. 434-435.)
See also 3A Summers, Oil and Gas (Perm. ed.) § 609.
Kansas has been among the jurisdictions adhering to the so-called non-apportionment rule (Carlock v. Krug, 151 Kan. 407, 99 P. 2d 858). Our question is whether the entirety clause is applicable under the facts here.
Plaintiffs’ argument is based on the assumption the term ‘leased premises” as used refers to and covers the entire quarter section. They contend that to hold otherwise would leave the clause with no office to perform. In support of their position plaintiffs rely almost entirely on Hoffman v. Sohio Petroleum Co., 179 Kan. 84, 292 P. 2d 1107. There a half section of land was leased for oil and gas, the lease containing an entirety clause. The land was thereafter sold in separate tracts at a partition sale, subject to the existing lease. It was held the purchasers of the tract upon which no oil was produced were entitled to participate in the royalties from oil produced under the lease on the other tracts in the proportion indicated in the entirety clause.
Under its facts the Hoffman case is distinguishable from the situation here in that the oil and gas lease there was executed by the owner of the entire leased acreage prior to division of the mineral ownership and the entire acreage was subject to the lease containing the entirety clause. There can be no question as to the application of such provision to lands covered by the lease and which are separately owned at the time of the execution of the lease or subse quently. An equitable result is achieved when all the leased land is treated as a unit and royalties are paid on a proportionate basis. Here, however, the mineral interest was divided prior to execution of the lease containing the entirety clause.
We think the answer lies simply in resort to the language contained in that clause. Its premise for operation is: “If the leased premises are now or hereafter owned in severalty or in separate tracts”. (Our emphasis.) Mrs. Mermis alone executed this lease. She was at the time owner of the east .half of the quarter section (80 mineral acres) and an undivided three-fourths of the west half of the quarter section (60 mineral acres). This constituted the property embraced by the lease. As such it comprised the “leased premises” mentioned in the entirety clause. Plaintiffs or their predecessor in title did not execute or join in the lease. Mrs. Mermis could not and did not lease their mineral interest. Her execution of the lease, despite its recitation that it embraced the entire quarter section, was effective only as to the interest she owned. The ‘leased premises” were not the entire land (the quarter section) but only the interest therein subject to the lease. Hence the ‘leased premises” were not owned in severalty or in separate tracts at the time of the execution of the lease, or thereafter, and the entirety clause never became operative. The trial court took this view and we think correctly so.
This interpretation finds support in 3A Summers, Oil and Gas (Perm. ed.), § 609, where it is said:
“To bring the apportionment provision of the entirety clause into operation with respect to a grantee of an oil and gas lessor, the interest conveyed must be a portion of the leased premises.” (p. 446.)
In Jul-Tex Drilling Company, v. Pure Oil Company, 201 F. Supp. 874, a similar conclusion was reached. There the Nelsons owned varying mineral interests in lands in three different sections. They executed an oil and gas lease on these lands which lease contained an entirety clause. Production was obtained upon one section only. The owners of the other undivided interest in the producing section had not joined in the execution of the Nelson lease. By reason of the entirety clause in the lease the Nelsons sought a proportionate share in the oil production calculated on their proportion of the entire acreage mentioned in the lease (which proportion would have been larger than if calculated on their interest in the producing section alone). The court declined to apply the entirety clause, holding the leased premises were not owned in severalty because the Nelsons’ lease was effective only as to the acreage actually owned by them.
We hold then that the term “leased premises” as used in an entirety clause in an oil and gas lease means the lessor’s interest which is the subject of the lease.
Plaintiffs make other contentions we need notice only briefly. They would shore up their position by resort to a “lesser interest” clause contained in the Dreiling lease, contending that limiting the entirety clause to Mrs. Mermis’ mineral ownership fails to give effect to the lesser interest clause. In Carlock v. Krug, supra, this court stated that the obvious purpose of a lesser interest clause was “. . . merely to provide that if it develops subsequent to the lease, that the lessor did not in fact have full title to the tract, he should receive royalties only in the proportion which his interest bears to the full title.” (p. 413.) The court further in effect held a lesser interest clause did not contractually bring the apportionment rule into effect. There was no occasion for adjustment of royalty payments to Mrs. Mermis insofar as production from the east half of the quarter section was concerned because she owned all of it. Plaintiffs further argue the evidence showed the lessee Dreiling operated and developed the premises as a unit. The trial court made no finding upon this aspect; moreover, the evidence indicated the contrary. It revealed the existence of a division order of long standing in which plaintiffs were never named and to the proceeds of which they laid no claim until the filing of this suit, and further, the lessee twice, in 1956 and again in 1959, tried unsuccessfully to obtain from plaintiffs a lease on the west half. Certainly the evidence indicates the lessee never treated the quarter section as an entirety in his operations. We have considered other matters urged by plaintiffs but find nothing to warrant further discussion.
We affirm the orders and judgment of the trial court both as to the appeal and the cross-appeal.
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The opinion of the court was delivered by
Kaul, J.:
Defendant appeals from a judgment of the district court directing that all of the records of the County Clerk-County Assessor of Cowley County, relating to the assessment of real and personal property, including “ratio study cards,” be made available to the plaintiff for inspection at reasonable times.
Plaintiff labeled his action one for declaratory judgment, although the relief sought was actually in the nature of mandamus.
In his petition, plaintiff alleged that he was a landowner- taxpayer of Cowley County whose property had been reappraised by the assessor, which reappraisement is in dispute; that he had requested of the county clerks office certain records including those concerning 681 sales of real estate in 1968. He was denied access to the records and thereafter made demand upon the defendant and upon the Board of County Commissioners, acting as a Board of Equalization, for such records, which demand was refused.
Plaintiff further alleged that the date of his petition was the last day which he had to prepare his appeal, and that his rights would be substantially damaged unless the records were made immediately available to him. Plaintiff also alleged that he was entitled to inspect the records in question under the provisions of K. S. A. 79-1412b which provides in substance that — all records of county assessors, county boards of equalization, and of the state director of property valuation relating to the assessment of tangible property shall be open at all reasonable times to public inspection. That the full and complete records of the 681 sales, referred to, were necessary to adjudicate the controversy arising and that this information should be readily available to any taxpayer who has litigation or a dispute similar to that of plaintiff.
Plaintiff prayed for a declaratory judgment in his behalf against defendant.
In her answer to plaintiff’s petition defendant alleged that in her capacity as County Clerk of Cowley County she had custody of certain documents known as “ratio study cards,” which contained information obtained from “Certificates of Value” filed in the office of the Register of Deeds of Cowley County pursuant to K. S. A. 1968 Supp. 58-2223a (now 1970 Supp.). Defendant further alleged that tire “ratio study cards,” which are the subject of this action, are not public records because they contain information which can be disclosed only to those persons named in K. S. A. 1968 Supp. 58-2223b (now 1970 Supp.), which provides in substance that — the contents of the’ certificates of valuation should be made available only to the county clerk-county assessor, appraisers employed by the county, and to the board of county commissioners, and not disclosed to anyone other than the director of property valuation or to the board of tax appeals in the event of proceedings before that board.
On June 11, 1969, the matter was presented to the district court. After hearing arguments of counsel, the court ruled:
“. . . that the plaintiff is entitled to inspect all of the Assessor’s records pertaining to 681 real estate sales of 1968, including the purchase price.”
The district court did not indicate the basis for its ruling.
Thereafter defendant perfected this appeal but made no effort to stay the judgment of the district court.
After obtaining access to the records in question, plaintiff perfected his appeal to the State Roard of Tax Appeals and says that it was successfully concluded. In other words, there is no controversy between the parties to this action at the present time. The order of the trial court granting relief to plaintiff was fully complied with. There was no stay of proceedings nor was any tax paid under protest. There is nothing left in this case but an abstract question as to the validity of the challenged order of the district court, which has been fully complied with. The case is therefore moot.
The rule is well settled that ordinarily questions will not be resolved by this court on appeal, which if decided would not be applicable to any actual controversy. The rule has been specifically applied to cases where a judgment in the form of mandamus has been obeyed. (Pelzl v. McCarty, 197 Kan. 80, 415 P. 2d 234.)
The appeal is dismissed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued for stipulated damages claimed to have been suffered on account of the defendant’s refusal to carry out a contract for the purchase and sale of real estate. The transaction involved an exchange of land, and the contract contained the following provision: “It is further agreed and understood by the parties to this contract that each party shall furnish an abstract showing satisfactory title to the above-named properties.”
The petition did not allege that the plaintiff furnished an abstract showing satisfactory title to his land, or that the defendant refused to receive an abstract of title or to investigate the title offered, or that the defendant arbitrarily or capriciously rejected such title or otherwise acted in bad faith in the matter. It was merely stated that the plaintiff furnished an abstract showing a good and sufficient title, and that the defendant refused to accept a warranty deed free of encumbrances. A demurrer to the petition was sustained, and the plaintiff prosecutes error.
The question involved is not a new one in the law, and this court has already indicated its views respecting the principles to be applied. Parties to a contract may lawfully stipulate that performance by one of them shall be to the satisfaction of the other. The obligation of a contract is not destroyed because it contains such a provision, as Chancellor Kent seems to have believed. (Folliard v. Wallace, 2 Johns. [N. Y.] 395.) If such a contract be made, the party to be satisfied is the judge of his own satisfaction, subject to the limitation that he must act in good faith. He should fairly and candidly investigate and consider the matter, reach a genuine conclusion, and express the true state of his mind. He can not act arbitrarily or capriciously, or merely feign dissatisfaction. The application of these principles is not limited to transactions involving personal taste and preference. All this follows from the decision in the case of Campbell v. Holcomb, 67 Kan. 48, 72 Pac. 552. In the following cases the principles upon which Campbell v. Holcomb was determined were applied to transactions involving the title to real estate: Stotts v. Miller, 128 Iowa, 633, 105 N. W. 127; Liberman v. Beckwith, 79 Conn. 317, 65 Atl. 153; Averett, Trustee, and als. v. Lipscombe, 76 Va. 404; Church v. Shanklin, 95 Cal. 626, 30 Pac. 789, 17 L. R. A. 207. Very respectable courts hold contrary views, but this court is not disposed to follow them, believing that the better reasoning as well as the weight of authority supports the conclusions announced.
In this case, no third person having been named as umpire, it was left .to the defendant to determine whether or not he was satisfied. He was bound to meet the responsibility in the same upright and straightforward manner as if he had been a stranger to whom the title was to be satisfactory. Having done this, his satisfaction or dissatisfaction fixed the rights of the parties.' It is of no consequence that a court or jury might believe that he ought to have been satisfied or that a reasonably prudent purchaser would have been satisfied. In every city there is likely to be some attorney who is regarded as much more technical than his fellow members of the bar in his requirements respecting abstracts and land titles. Suppose the matter in controversy had been left to such an attorney, and that in all probity he had expressed dissatisfaction: the defendant would have been absolved. Evidence that the attorney entertained unreasonable views would only be relevant in connection with proof of dishonesty or want of good faith. The same is true here.
The plaintiff argues that a land title is either good or bad, that an abstract will show a title either good or bad, and that there can not be, in common sense or reason, dissatisfaction with a good title. The experience of every lawyer teaches that it is frequently a very difficult and perplexing question whether a land title is good, and although he may not be able to give clear reasons why it is bad he may be incapable of bringing himself to the point of approving it.
The argument is answered by the supreme court of' Connecticut, in Liberman v. Beckwith, 79 Conn. 317, as follows:
“Titles sold and transferred may be good, bad, or doubtful, absolute or limited. The same title may be satisfactory to one purchaser and not to another. One might be quite willing to buy a doubtful title, while another would not be satisfied with a marketable title so limited as to involve a special risk of litigation in his use of the property purchased.” (Page 321.)
There is no more difficulty in proving the good faith of a party to a contract who determines for himself whether he is satisfied than there is when a third person is the umpire, or than there is in many other instances where only the good faith of the inquiry and not the grounds of the conclusion is open to question.
The judgment of the district court is affirmed. | [
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Per Curiam:
A number of the citizens of Doniphan county formed themselves into an association for the purpose of erecting and operating a telephone system for their own use. The organization was not incorporated. The members were jointly interested in the system; each contributed to the construction and maintenance of the main line and central office; each owned his own telephone and the wire by which it was connected with the main line. In the briefs the parties call themselves partners. As a part of the initiatory steps taken to organize the company, names of persons along the proposed line who were interested in the enterprise were obtained, from which the membership was to be secured. Several of these, however, subsequently withdrew and were dropped. The defendants in error remained on the list, and perfected the organization by fixing the duties and liabilities of each member. John Maynes, the plaintiff in error, was one of the original promoters of the association, but, refusing to agree to or comply with the subsequent requirements adopted, he did not become a member of the company as finally organized. After the main line was partially constructed, and poles and other materials were distributed, he insisted upon being recognized as a partner and that he be permitted to connect with and use the line. To enforce this recognition he proceeded to erect, with material belonging to the association, a wire from his residence, which he threatened to connect with the main line. The company thereupon commenced this suit in the district court of Doniphan county to enjoin him from carrying out his threat. A temporary injunction was obtained at the commencement of the suit, which was afterward made permanent. The defendant brings the case here for review. Several assignments of error have been presented, but they are all based upon the claim that the evidence did not justify the findings and judgment of the court.
The case was tried to the court, without a jury. The only controversy on the trial was whether or not John Maynes was a member of the association. Many witnesses were examined upon this question, and from the evidence produced, which was conflicting, the court decided that John Maynes was not a member and that his attempt to make forcible use of the telephone system was wrongful. The findings and judgment of the trial court are conclusive here upon disputed questions of fact. (Briggs v. Brown, 53 Kan. 229, 36 Pac. 334.) There was ample evidence presented to sustain the conclusions of the court.
We are unable to find error in any respect, and therefore the judgment is affirmed. | [
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Per Curiam:
This is a controversy over a strip of land along the line between two adjoining farms. For more than fifteen years the two farms had' been separated by a fence, which the respective owners assumed to be upon the line. A legal survey, made not long before the commencement of this action, established the true line a few feet west of the fence, on the land' occupied by the plaintiff in error, who claimed the ownership of the land by adverse possession. ' The defendant in error brought the action to recover the land. The plaintiff in error testified on the trial as follows:
“Ques. All the years, Mr. Crawford, that you have occupied the land that you have testified to, you occupied- it under the claim that that was the line? Ans. Yes, sir.
“Q. The line that divided you from these ■ other pieces of land?. A. Yes, sir.”
The court found in favor of the plaintiff.
Under this evidence the defendant occupied- the strip under the mistake that the fence was on the true-boundary-line and without any intention to hold the-land beyond his -true line or to claim land which did not belong to him. Under these facts he can not acquire title to such strip by adverse possession. (Scott v. Williams, 74 Kan. 448, 87 Pac. 550.)
The judgment is affirmed. | [
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Per Curiam:
This case involves the proceeds of the 3500-dollar certificate of .deposit mentioned in the opinion in Miles v. Miles, ante, p. 382, and conveyed by the trust deed construed in that case. Both cases were submitted together. On the grounds ■stated in the former the judgment in this is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
- H. V. Lawrence, as contestant, commenced this action in the district court of Finney county, and in his petition alleged, in substance, that he and the contestee, Wheeler, were, at the general election of 1906, both candidates for the office of county treasurer of Finney county, and that the board • of county commissioners, acting as a canvassing board,, thereafter declared the contestee duly elected. He= further alleged that there were errors and mistakes made by the.judges of election in several precincts, and by the canvassing board, to his prejudice, which vitiated the determination of the board, and that he, and not the contestee, was in fact duly elected.
The contestee answered and also alleged that the canvassing board and the judges of election made mistakes and errors in their proceedings to his prejudice, but that he was in fact duly elected to the office. He specially alleged that the board of canvassers failed to count for him the votes legally cast for him in Macks, Eminence and other precincts.
Upon the trial the contestant offered in evidence the result of the canvass by the board of canvassers of the vote in all the precincts of the county except Macks and Eminence, the total of which showed 633 votes for the contestee and 611 for the contestant. Thereupon the attorney for the contestant said to the witness, the county clerk:
“For the information of the court, and on his request, you may give the vote of Macks and Eminence precincts. Ans. Macks precinct, A. C. Wheeler 43, H. Y. Lawrence 33; Eminence, Wheeler 38, Lawrence 53.”
These votes, added to the former totals, give Wheeler, contestee, 714 votes and Lawrence 697.
In the same connection the attorney for contestant remarked:
“Contestor has made the showing as to the canvass in Macks and Eminence precincts for the information of the court, and not for the purpose of asking that that record be considered as showing the vote actually cast for Mr. Lawrence and Mr. Wheeler.”
The court replied: “The court understands the purpose, and you will not be concluded by it.”
No objection was made to this arrangement or understanding, yet when the contestant later offered to show that the actual vote of Macks and Eminence' precincts differed from the vote as canvassed the contestee ob jected, and, his objection being overruled, he now alleges the ruling as error.
We do not think it is error, nor would it have been such even if there had been no understanding as to the purpose for which the vote as canvassed was offered. The contestee says that the contestant offered this as evidence in the case, is bound by it, and can not afterward be heard to dispute it. The pleadings, however, show that there was no dispute as to what the canvassed vote was, and each party specifically alleged that there were mistakes and errors therein. The court could not well determine whether there were mistakes or errors in the canvass without being informed as to what the canvass showed.
The contestant then rested his case, and, a demurrer to the sufficiency of his evidence having been overruled, the contestee then asked the court to canvass the ballots alleged to be from Macks and Eminence precincts as to all candidates on the tickets, for the purpose of testing “the bona fides of these ballots,” and the court, over the objection of the contestant, proceeded so to do, as it said, for its own information. The count of the court of these two precincts reduced the vote of the contestee 6 votes in Eminence precinct and 4 votes in Macks precinct, a total of 10. It also showed an increase in the vote cast for the contestant of 5 votes in Eminence precinct and 10 votes in Macks precinct.
On the theory of the contestee that any information given the court, no matter for what purpose offered, is binding upon the party producing it, this count would be fatal to the claims of the contestee, but the district court properly rejected that theory, as before said.
The vote of Eminence and Macks townships, being the only ones in controversy, the court proceeded to hear evidence as to the manner in which the ballots had been kept, whose custody they had been in, and whether they had probably been tampered with, and made the following findings relating thereto:
“I have seen no occasion to change my attitude to ward either Macks or Eminence precinct, and will pursue the course suggested when I came to you yesterday morning. I will canvass the ballots that were tendered as the ballots from Eminence precinct in the manner in which I did; and will reject the ballots tendered from Macks, and in so doing find specifically that the ballots, after having been counted, were properly strung and sealed with sealing wax, and when presented to the court for consideration they were not so sealed, nor was there any indication of a seal on or about them; and I conclude as a matter of law that the ballots under those circumstances are not better evidence than the declared result, as ascertained and returned by the election officers.
“The result of our labors will .be to declare that Mr. Lawrence received 599 votes for the office of county treasurer and Mr. Wheeler 589 votes, and that the contestant, Lawrence, was elected to the office; and such judgment as is proper from the conclusion will follow.
“The court finds the fact to be that each of the individual pouches containing ballots as returned by the judges of the various election precincts to the county clerk were closed at one end with what appears to be ordinary mucilage, and that they were easily capable of being opened and resealed.
“The court finds the fact to be that as to Eminence and Macks precincts, after the ballots were placed in the. custody of this court as a part of the record in this case it was easily possible for unauthorized persons to get access to them and tamper with them; that in the instance of Eminence precinct there is no evidence or indication of such tampering, and the court concludes as a matter of law that to challenge the sanctity of the ballots the possibility of tampering will not be sufficient, but that specific and actual evidence is necessary to destroy their value as evidence of the highest character.
“The court finds the fact to be that all of the pouches containing ballots introduced in evidence in this case, with the exception of those relating to Eminence and Macks precincts, were opened and the ballots therein counted by the contest court. The court finds no indication of tampering on or about the ballots, nothing in their physical- condition to suggest a condition now at variance with their condition when they were returned to the county clerk by the contest court, although from, the evidence offered such tampering might have been possible.”
We have read the evidence on this subject and conclude that the findings of the court are as favorable to. the contestee as the evidence warrants.
The contestee contends that the findings of fact relating to the custody of the ballots from Macks precinct excludes that vote from the count as a proposition of law; that it devolved upon the contestant to show that the ballots had been so kept that there was no possibility of their having been tampered with. It is sufficient to show that they had been in the continuous possession of the officers prescribed by statute, and had been so kept that it is improbable that they had been, "tampered with. (See Hudson v. Solomon, 19 Kan. 177; Dorey v. Lynn, 31 Kan. 758, 3 Pac. 557; Ogg v. Glover, 72 Kan. 247, 83 Pac. 1039.)
The judgment in favor of the contestant is affirmed.. | [
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The opinion of the court was delivered by
Mason, J.:
In the course of litigation involving other matters Humphrey Calhoun, on December 31, 1904, filed an answer which included a cross-petition against a codefendant, Ed Anderson, asking that an instrument in the form of a deed from Calhoun to Anderson be declared to be in effect a mortgage, that the amount of the debt thereby secured be ascertained by an accounting, and that he be permitted to redeem the land. On the trial of the issues so tendered the district court sustained a demurrer to the evidence of Calhoun, and he prosecutes error.
That the plaintiff in error has taken the proper steps to procure a-review is shown only by a journal entry which was made without notice to the adverse party, nunc pro tunc, and was not based on any memorandum, minutes, or other written data. The defendant in ¡error on this ground challenges the sufficiency of the xecord. It has been determined, however, that a district court upon its own knowledge of the facts, and without notice to any one, may at any time make its records speak the truth and show what had actually been done at some earlier date, even where no immediate entry was made regarding it. (Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594.)
Calhoun’s evidence, among other things, tended to .show these facts: He had given a mortgage on the land involved to a sister of Anderson, and he owed Anderson personally an amount sufficient to make a total indebtedness of $10,285, subject to certain deductions claimed by him on account of usurious interest and •other matters. He deeded the land to Anderson in ■consideration of this debt, and at the same time, December 15, 1902, received from him an instrument the •substantial part of which reads as follows:
“Said party of the first part [Anderson], for and in ■consideration of ten thousand two hundred and eighty-five dollars ($10,285) and taxes dollars, of which ■eleven hundred dollars ($1100) is in hand paid by said second party [Calhoun], the remainder of said consideration to be paid as hereinafter provided, hereby promises and agrees to sell and convey, on the first day of January, 1905, at Cheney, Kan., time being of the essence of the contract, by good- and sufficient warranty deed conveying an indefeasible estate in fee simple, to said party of the second part, his heirs and assigns, the following-described real estate. . . . The said Humphrey Calhoun, party of the second part, in consideration of the foregoing covenants, agrees to pay to the said Ed Anderson, party of the first part, for the above-described real estate, the said sum of $10,285 dollars, as follows, to wit: $1100 cash in hand on signing this contract, and $4185 dollars on the first day of January, 1905, upon delivery of deed as hereinbeforeprovided, time and punctuality being material and of the essence of the contract. And said party of the second part shall, at the time and place last mentioned, execute and deliver to said party of the first part, or his legal representatives, his promissory note secured by a complete mortgage of said land, with interest at the rate of-per cent, per annum, to secpre the payment of $5000 dollars on the-day of-, 18 — , and- dollars on the- day of - — •, 18 — •, and-dollars on the-day of-, 18 — . In case of failure of said party of the second part to perform any of his covenants herein, the said party of the-first part shall have the right to enter and repossess, himself of said premises without further notice or delay.
“It is further understood and agreed that either party to this contract shall be entitled to recover from said other party damages for the failure of the other-party to comply with the terms of this contract.”
The debt owed by Calhoun to Anderson was evidenced by a note and secured by a chattel mortgage,, neither of which instruments'was surrendered or released. The $1100 cash payment was made by turning-over a land contract. Calhoun remained in possession of the land, executing a lease by which he agreed to pay as rent an amount equal to the interest at 10 per cent, on the balance of the purchase-price. In subsequent conversations between Calhoun and Anderson the transaction was spoken of as leaving to the former the real ownership and control of the property, subject only to the payment of the amount of his indebtedness..
This evidence, if accepted as true, established that the deed was in legal effect a mortgage — Calhoun hawing the real title to the land, Anderson only a lien upon it. In Wiswell v. Simmons, 77 Kan. 622, 95 Pac. 407, authorities are cited (although a conflict is noted> holding that the execution of a bond for a reconweyance at the same time that a deed is giwen raises a presumption that the transfer of title is for security only. But here the grantor need not rely upon that presumption. The contract accompanying the deed did not merely give Calhoun the right to purchase — it bound him to do so. He specifically agreed to pay Anderson the stipulated price for the land. This made the obligation mutual. (Brownson v. Perry, 71 Kan, 578, 81 Pac. 197.) In view of this consideration it is doubtful whether other circumstances could give the transaction any ■other effect than that of a mortgage. But the evidence all tends to support the security theory, unless the ■giving of a lease by Calhoun be deemed to have a contrary tendency. If so it is fully offset by the fact that the amount named as rent just equalled the interest on the indebtedness. The conduct of the parties, especially with regard to the outstanding evidences of the debt, would alone in a doubtful case resolve the doubt against the hypothesis of an absolute conveyance.
It results that the judgment must be reversed and the cause remanded for further proceedings, and it is so ordered. | [
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Per Curiam:
On September 26, 1905, Eleanora Miles, widow, and W. K. McComas entered into a written agreement, by which she conveyed and assigned to him certain personal property in trust, to pay to her during her natural life the income derived therefrom, and in case the income should prove insufficient for her support then to pay to her so much of the principal as she might deem necessary, and at her death to pay the expenses of her last sickness and funeral, erect a monument, the cost of which should not exceed $250, and then pay over the balance re maining in his hands to certain grandchildren of the grantor. At the time the agreement was made the personal property involved consisted of moneys in bank, evidenced by certificates of deposit, and also certain promissory notes and mortgages, all of which were payable to the order of the grantor. These were duly indorsed, assigned and delivered to the trustee at the time the agreement was entered into, and he at once reduced them to cash. After the death of Mrs. Miles, which occurred in February, 1906, plaintiff was appointed administrator of her estate, and he brought this action to recover from the defendant the sum of $2650.87, the proceeds of the notes and certificates of deposit collected by him as trustee. The cause was tried to the court and judgment given for the defendant. Plaintiff brings the case here.
We agree with the plaintiff that the transaction did not constitute a gift inter vivos nor causa mortis, and that the instrument was not testamentary. But we hold that it created a complete and executed trust. It is thought that every question raised by the plaintiff is disposed of adversely to his contention in the opinion in Miles v. Miles, ante, p. 382, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of felonious assault as defined by K. S. A. 21-435.
There is no serious dispute as to the facts. Wayne Brandon was on convalescent leave from the United States Army. He was on crutches as his right leg was in a cast from the ankle to the knee. He and one of his sisters were visiting at a residence in Topeka, Kansas with several other people. The defendant came to the residence and asked one of the group about some money owed by him to defendant. This request was met with “signifying and playing and joking and carrying on” which made defendant angry. Defendant then turned to Brandon and asked about money owed by him to defendant. There was a sharp dispute about the amount owed by Brandon to defendant. Defendant then left the residence. A few moments later Brandon and his sister also left. Upon leaving Brandon saw defendant back up his car in front of the residence. He opened the trunk, removed a shotgun and called Brandon some names. Defendant raised the gun to his shoulder, aimed at Brandon’s legs and fired. Brandon was hit with a number of pellets, particularly in the leg area. The dis tance from defendant to Brandon at the time of the shooting was approximately twenty-five feet.
Brandon was not armed.
The defendant’s testimony was narrated in the record in part as follows:
“. . . That upon asking Brandon for the money owed him, Brandon told him that he was going to ‘get a killing’ and that he did not argue beyond that point because of the threat. That upon leaving the house Brandon followed him out, and turned sideways and seemed to be going for something in his pocket. That he thought Brandon was coming out to do him harm. That he thought he saw Brandon drawing a pistol or some other weapon. That when he saw Brandon coming out and towards him under the circumstances he just got his shotgun. That the argument inside the house had been pretty heated. That he did have the shotgun with birdshot in it and that he did fire at Mr. Brandon’s legs. . . .”
The defendant was charged in the information with assault with intent to kill as defined by K. S. A. 21-431 but was convicted by the jury of the lesser offense of felonious assault as defined by K. S. A. 21-435.
The defendant has appealed.
The appellant states his first contention as follows:
“The instructions given by the court to the jury were deficient and errom'ous inasmuch as they omitted defendant’s requested instruction number one, and taken individually or as a whole did not contemplate the requisite ‘mens rea,’ or felonious or criminal intent, component of a felony crime, nor did the instructions identify the ‘felonious’ component of the lessor included offense, K. S. A. 21-435, otherwise instructed upon.”
Appellant’s argument appears to be that the state must prove and the trial court should have instructed that the defendant must have had a particular intent to commit a specific crime rather than an intent to commit the particular act.
We submit that the only burden on the state was to prove a particular intent to commit a specific act which was inherently criminal in nature. The state was not obligated to prove an intent to violate a particular statute but rather the intent to do the criminal act which violated the statute.
The appellant admitted that he intended to fire the 12 gauge shotgun at Brandons legs but claimed self-defense through fear of bodily harm. If the shot was not fired in self-defense, then it was fired with the evil intent of injuring Brandon. This presented a jury question.
We find the instructions of the trial court on intent ample under the circumstances. The jury was instructed:
“The Information alleges that the acts were done unlawfully, feloniously and willfully.
“ ‘Unlawfully’ means that the act done is contrary to law.
“ ‘Feloniously’ means done with intent to commit a felony.
“ ‘Willfully’ means that the act was done intentionally and not accidentally.
“Every person of full age and sound mind is presumed to intend all the natural and probable consequences which result from his voluntary acts; but this presumption is not conclusive and you may disregard it if, from the whole evidence, you conclude the fact to be otherwise.”
The trial court instructed as to the offense set out in K. S. A. 21-431 and 21-435 and then further instructed:
“As applied to the facts in this case the essential difference between Section 21-431 and Section 21-435 of the Statutes of Kansas, is that Section 21-431 requires the assault to be made on purpose with malice aforethought and with intent to kill or maim while Section 21-435 defines a lower grade of offense in which the element of malice aforethought is not included. . . .”
It will be noted the instruction withdrew from the offense under K. S. A. 21-435 “malice aforethought” but left applicable the “intent to kill or maim.”
The trial court also fully instructed on self-defense but the jury was not impressed with this theory of defendant.
The appellant next contends that the trial court improperly sustained an objection to the closing argument of appellant’s counsel and in so doing made remarks leaving a misleading inference as to the law in the minds of the jury.
Appellant’s counsel stated in his closing argument to the jury:
“. . . You must find that by examining what was in his mind, what he was thinking, did he think in his mind either consciously or subconsciously, 1 am going to commit a crime; I am going to go out and commit a criminal act.’ ”
On objection by the state, the court directed counsel for appellant to stay within the confines of the instructions and reasonable inferences therefrom.
The argument closely parallelled the contention made by appellant in his argument as to the instruction on intent. Again we state it was not necessary that the state prove an intent to commit a particular crime. It only had to prove that he intended to commit an act which constituted a crime.
Appellant contends that the prosecuting attorney made improper and inflammatory remarks to the jury during his closing argument.
The record discloses the following:
. . Prosecutor then in his final segment of closing argument stated ‘the mere act of shooting somebody is a felony, and that is what he is charged with doing, nothing else.’ To this statement defense counsel objected, with the response by the court that ‘the jury will be reminded that the instructions explain exactly what the law is in regard to the offense charged.’ ”
The prosecuting attorney in his statement may have left out some of the elements of the offense but the jury was properly admonished by the trial court to look to the instructions for the law in regard to the offense. No prejudicial error could have resulted. (State v. Griffin, 161 Kan. 90, 166 P. 2d 580.)
The appellant contends that the sentence was not imposed within the statutory period required by K. S. A. 62-1723.
The verdict of the jury was returned June 20, 1969. A motion for a new trial was filed June 24, 1969. The trial court did not hear the motion or sentence the appellant until August 1, 1969. K. S. A. 62-1722 provides the time for sentencing in the absence of a motion for a new trial. K. S. A. 62-1723 provides in part:
“If at the time the plea, verdict, or finding of guilty is made defendant announces that he desires to file a motion for a new trial, the court shall fix a time, not exceeding five days, in which to file the motion for a new trial, and such motion shall be heard and determined as expeditiously as possible and in no event later than thirty days after it is filed. . . .”
The appellant calls our attention to the fact that the time requirement was not met.
Our previous decisions appear to definitely dispose of this contention. In Bruffett v. State, 205 Kan. 863, 472 P. 2d 206, we held:
“The provisions of K. S. A. 62-1722, providing time for sentencing, apply only in the absence of a motion for a new trial and the provisions are directory and not mandatory.” (Syl. § 3.)
In State v. Nelson, 200 Kan. 411, 436 P. 2d 885, cert. den. 392 U. S. 915, 20 L. Ed. 2d 1375, 88 S. Ct 2078, we held:
“The provision of K. S. A. 62-1723 relative to sentence being imposed within five days if a motion for new trial is overruled is merely directory, not mandatory nor jurisdictional, and a valid sentence may be imposed within a reasonable time thereafter.” (Syl. ¶ 1.)
Appellant contends that the trial court improperly admitted evidence of prior convictions of a nature entirely unrelated to the offense for which he was being tried which tended to be inflammatory to the minds of the jury
There is no merit to the contention.
The prior convictions were mentioned by counsel for appellant in his opening statement. The prior convictions were also referred to in appellant’s evidence. The narrative statement of appellant’s evidence reads in part:
“The defense then called Father Frank Cohoon, Rector of St. David’s Episcopal Church, in Topeka, Kansas, and following then called Mr. Allen Correll, executive director of the Human Relations Commission of Topeka, Kansas. These witnesses testified that they had observed Mr. Kirtdoll in a number of varied settings within the community, that they were aware that he had previous difficulty with the law hut that in spite of this they were of the opinion that his reputation in the community was good and that by reputation he would not be anticipated nor expected to settle an argument for no reason by the use of arms or violence, and that he had a reputation for assisting to maintain calm and peace in the area of race relations, that by reputation he sometimes advocated a calm approach to race relations when others were advocating disruption and violence, and that he had made his reputation by active participation in various organizations and community affairs. They testified that his reputation was not one of a violent man, and that his reputation was not that of a man who loses control of his temper nor control of himself. . . .” (Emphasis supplied.)
The state cross-examined these witnesses concerning their knowledge of each prior conviction of which they had testified they were aware.
The state did not mention prior convictions in the jury’s presence until the cross-examination of appellant’s witnesses.
The appellant having offered evidence tending to establish the credibility and character of the defendant who was also a witness, the state’s cross-examintion following the introduction of the evidence clearly falls within the exceptions provided in K. S. A. 60-421 and K. S. A. 60-447. It might further be suggested that the appellant having introduced evidence of the previous convictions through his character witnesses, the state had the right to inquire into them on cross-examination. Also, K. S. A. 60-447 does not restrict cross-examination of a character witness called by a defendant when the inquiry is limited to the purpose of testing his credibility or bias. (State v. Kidwell, 199 Kan. 752, 434 P. 2d 316.)
A careful examination of the record discloses no trial errors that would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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ORDER OF PUBLIC CENSURE
Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaints of alleged professional misconduct by John W. Sowers, and,
Whereas, Following a full hearing as to such complaints, the State Board of Law Examiners found that said John W. Sowers was guilty of violating his common-law duty to his client, and Canon Nos. 15, 38 and 44 of the Canons of Professional Ethics (198 Kan. xvn), see DR 2-110 (A) (2) and (3); DR 5-107 (A) and DR 7-101 (A) of the Code of Professional Responsibility (205 Kan. lxxxvi, lxxxvh), and,
Whereas, The State Board of Law Examiners has made a written recommendation to this court that said John W. Sowers be disciplined by “Public Censure” as provided by Rule No. 205 (m) (2), (205 Kan. lxh), and,
Whereas, The said John W. Sowers, pursuant to subdivision (n) of Rule No. 205, above, has in writing elected to accept such recommended discipline and to pay the costs of the proceeding, and,
Whereas, Upon consideration of the record and being fully advised in the premises, the corut accepts the recommendation of the State Board of Law Examiners.
It is, therefore by the court Considered, Ordered and Adjudged that the said John W. Sowers be, and he is hereby Censured by this court and that he pay the costs of the proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas Reports.
By order of the court, dated this 12th day of December, 1970. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, Bruce LaVern Brooks, was tried and convicted by a jury of the offenses of second degree burglary and larceny (K. S. A. 21-520 and 21-525, respectively), and sentenced to confinement and hard labor pursuant to K. S. A. 21-107a, for a term of not less than ten years nor more than twenty years in the Kansas State Penitentiary.
The appellant was one of the occupants in a Chevrolet automobile driven by Bernard Donald Kanan, which was stopped by Saline County Deputy Sheriff Siewert at 3:13 a. m. on the morning of March 18, 1968, in Salina, Kansas. The facts of the appellant’s arrest, the search of the Kanan automobile, and the seizure of money and checks identified as coming from the Eagles Lodge in Safina, are fully detailed in the court’s opinion in State v. McMillin, 206 Kan. 3, 476 P. 2d 612.
The appellant’s sole contention is the legality of the vehicular search and seizure of stolen property found in the Kanan automobile. The fruits of the search were introduced into evidence over objection of the defendant at his trial which resulted in a jury finding him guilty.
The same contention was made and decided in State v. McMillin, supra, and the matter was thoroughly dealt with therein. We follow and incorporate herein the opinion in the McMillin case which contains a complete statement of the facts, the law, and this court’s conclusions which warrant affirmance of this case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
The appellant, Dale E. Stanphill, was convicted by a jury of the offense of burglary in the second degree. A motion for new trial was overruled, and Stanphill was sentenced to the state penitentiary for a term of 25 years under the habitual criminal act.
The principal issue on appeal centers on appellant’s claim he was not afforded a speedy trial. Other points, including alleged trial errors, are raised and will receive our attention in due course.
On the evening of February 22, 1966, law enforcement officers were summoned to the Wichita Postal Employees Credit Union where they discovered a door to the building had been forced open. On further investigation, the officers found appellant and his companion inside the vault attempting to open a safe, the appellant holding a flashlight while his partner in the nefarious venture applied a pry bar.
Following appellant’s arrest, charges were filed in the court of common pleas in Sedgwick county. On March 2, he was released on bond pending a preliminary examination. Appellant journeyed to Kansas City where he was arrested the following day as a parole violator by federal authorities. Thereupon, he was returned to the federal penitentiary at Leavenworth to serve out a prior life sentence to that institution. After corresponding with various law-enforcement agencies, the marshal of the court of common pleas ascertained appellant’s whereabouts, and on or about April 18 a detainer was lodged with the penitentiary officials.
On June 4, 1968, appellant field a pro se motion in the common pleas court to show cause why the complaint pending against him should not be dismissed with prejudice for lack of speedy trial. The motion indicated appellant’s desire to have his case disposed of in an expeditious manner. No action was taken until January 8, 1969, when the county attorney corresponded with the attorney general of the United States requesting advice about appellant being made available for trial in state court. On February 6, the attorney general informed the county attorney about the procedure to be followed for obtaining custody of appellant. Thereupon, a writ of habeas corpus ad prosequendam was issued February 12, and appellant was returned to the Sedgwick county jail February 24.
Following his appearance before the court of common pleas February 25, appellant, with the aid of court-appointed counsel, reasserted his earlier motion to dismiss for lack of speedy trial and the same was overruled. A preliminary hearing was held resulting in appellant being bound over to district court for trial. An information was filed in district court March 18, and the speedy-trial issue was again raised by appropriate motions to dismiss. The motions were denied, and appellant’s case proceeded to trial May 26, 1969.
Within this factual framework we must determine whether appellant has been denied his basic right to a speedy trial as guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment of the Federal Constitution (Klopfer v. North Carolina, 386 U. S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988).
On January 20, 1969, approximately two weeks before the county attorney’s inquiry to the attorney general, Smith v. Hooey, 393 U. S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575, was decided. There, the petitioner had been indicted in Texas on a state charge while he was a prisoner in the federal penitentiary at Leavenworth. Despite repeated demands for trial by petitioner extending over a period of nearly eight years, the state made no effort to obtain his appearance in the Texas court. The United States Supreme Court held the constitutional right to speedy trial may not be dispensed with merely because the accused, under a state charge, is serving a prison sentence imposed by another jurisdiction, and upon petitioner’s demand, the state has a constitutional duty to make a diligent, good-faith effort to bring him before the trial court. The reasoning of the court appears in the following language:
“. . . [T]he fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.” (p. 611.)
The decision effectively abrogated what has been the settled law of this state. In Evans v. Mitchell, 200 Kan. 290, 436 P. 2d 408 (decided January 27, 1968), we held that neither the federal nor state constitutional right to speedy trial is violated where the delay is occasioned by the accused being imprisoned in another jurisdiction. It is now apparent that our holding in Evans has ceased to have solid constitutional footing, and henceforth cannot be relied on as the law in this jurisdiction. Thus, an accused’s plea for speedy trial in state court can no longer go unheeded merely because he is incarcerated in another jurisdiction.
Appellant acknowledges that inasmuch as he is not a prisoner in “a penal or correctional institution of this state,” the Uniform Disposition of Detainers Act (K. S. A. 62-2901 et seq.) providing for trial within 180 days after request has no direct application to this case. (State v. Morton, 200 Kan. 259, 436 P. 2d 382, cert. denied, 393 U. S. 890, 21 L. Ed. 2d 168, 89 S. Ct. 209.) The argument is made, however, the act provides legislative guidelines that should be adhered to by this court in defining the limits of the speedy-trial right guaranteed by the federal and state constitutions. Thus, since appellant was not brought to trial within 180 days after demand, he was entitled to dismissal of the charges.
Parenthetically, we note that after the events in question, Kansas became a party to the Interstate Agreement On Detainers which contains a similar 180-day provision (K. S. A. 1969 Supp. 62-3001, et seq.). It too has no application here.
A constitutional right is not to be limited or denied simply because of the lack of implementing legislation. In a number of cases we have said that the right to speedy trial provided for in our state constitution is legislatively defined by the various statutes enacted to supplement the general language of the Constitution and render the constitutional guarantee effective. For example, the Uniform Mandatory Disposition of Detainers Act was founded on legislative policy, as distinguished from constitutional grounds. Such legislation was designed not to protect the convict’s right to speedy trial per se, but rather to protect him from the particular disabilities ■engendered by an untried detainer pending against him while he is serving a prison term. (State v. Goetz, 187 Kan. 117, 353 P. 2d 816; Evans v. Mitchell, supra.) The same policy considerations undoubtedly led to the recent enactment of the Interstate Agreement On Detainers.
While the passage of the statutory period established in these legislative enactments must be treated as conclusive of undue delay if all other conditions are met, the constitutional right must be preserved and kept distinct in those situations not specifically covered by statute. Judge Skelly Wright, in his concurring opinion in Nickens v. United States, 323 F. 2d 808 (D. C. Cir. 1963), referred to delay in the criminal process before the filing of charges and said:
“The legislature is free to implement the constitutional right and to provide protections greater than the constitutional right. But the minimum right of the accused to speedy trial is preserved by the command of the Sixth Amendment, whatever the terms of the statute. And that minimum right is measured by a flexible standard which takes account of all the circumstances.” (p. 813.)
We must reject appellants suggestion that the 180-day provision of the Uniform Mandatory Disposition of Detainers Act should be adopted as an arbitrary standard for determining whether his right to a speedy trial was violated. The constitutional duty imposed by Hooey requires the state, upon demand by the accused, to make a diligent, good-faith effort to bring him to trial without unreasonable delay. Whether that duty has been fulfilled must be gauged by all the surrounding facts and circumstances in the particular case. Even then, the accused’s rights are not violated unless he can show prejudice resulted from an unreasonable delay by the state after trial was demanded.
Just last month we had occasion to examine Hooey in State v. Brooks, (No. 45,853 ) 206 Kan. 418, 479 P. 2d 893, and made the following observations:
“. . . [T]he court gave little practical guidance for effectuating the right [to speedy trial] or for determining when the right has been violated. We do not find that it changed any of the rules announced in Fleming v. United States, 378 F. 2d 502, where the United States Circuit Court of Appeals, First Circuit, stated:
“ ‘As to defendant’s additional contention that the post-indictment delay violated his Sixth Amendment right to a speedy trial, as well as the ‘unnecessary delay’ clause of Rule 48 (b) which enforces this right, we point out that this delay was also very short — eleven months. Further more, ‘the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.’ United States v. Elwell, supra, 383 U. S. at 120, 86 S. Ct. at 776. Consequently, the showing of a mere lapse of time is not enough to establish denial of a speedy trial. As indicated above, it is essential that defendant also show prejudice or that the delay was improperly motivated.’ (p. 504.)
“It would also appear from the above cases that a request is necessary before defendant can complain of failure to grant a speedy trial under the federal rule.” (p. 419.)
After the filing of appellant’s brief, the United States Supreme Court rendered its decision in Dickey v. Florida, 398 U. S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564. The court noted that the Hooey case had been remanded to the state court without deciding whether the defendant, when available for trial in the state court, would be required to show prejudice arising from the delay. But, with reference to the delay of more than seven years occurring in Dickey, the court said:
“In addition to exerting every effort to require the State to try him, there is present in this record abundant evidence of actual prejudice to petitioner in the death of two potential witnesses, unavailability of another, and the loss of police records. This is sufficient to make a remand on that issue unnecessary. We therefore reverse and remand to the District Court of Appeal of Florida, First District, with directions to vacate the judgment appealed from and discharge the petitioner from custody.” (p. 32.)
An examination of the record before us discloses approximately seven months after appellant’s request for dismissal of the charges, the county attorney took action to bring him before-the state court. These first steps were taken despite the fact that our existing case law imposed no duty upon prosecuting officials to obtain custody of an accused imprisoned in a federal penitentiary. (Evans v. Mitchell, supra.) Altogether, a total of eight and one half months elapsed before the state actually obtained custody of appellant. In the interim, Smith v. Hooey, supra, was decided. In disposing of this case, the question of whether or not Hooey was intended to have retroactive application need not be decided. We are satisfied that even under the constitutional duty imposed by that decision, appellant’s right to a speedy trial was not violated. The state’s good faith has not been challenged. While a substantial delay on the part of the prosecution cannot now be condoned under present law, we are-unable to say the delay here, in and of itself, constitutes a violation of the constitutional duty imposed on the state. Especially is this true where appellant has not shown his substantial rights were prejudiced. We have only his bald assertion that his ability to defend himself was impaired because he had lost contact with friends and had lost any source of funds with which he might have hired counsel. Unlike in Dickey, these allegations were not substantiated by evidence, nor do they necessarily constitute actual prejudice. The trial court’s determination that appellant’s right to a speedy trial was not violated must be sustained.
Appellant also complains the trial court erred in overruling his motion to quash and discharge the jury panel, more properly termed a challenge to the array. The same two-pronged attack leveled against the venire in the lower court is urged on appeal.
In the first place, defendant contends the jury selection officials failed to ascertain whether persons selected as prospective jurors from the personal property tax rolls met the statutory qualifications set forth in K. S. A. 43-102.
K. S. A. 43-102 provides in part that officials shall select from those on the assessment roll of the preceding year suitable persons having the qualifications of electors, and in making such selection they shall choose only those who are not exempt from serving on juries, and who are possessed of fair character and approved integrity, and in possession of their natural faculties, and not infirm or decrepit, and who are well-informed and free from legal exceptions.
The Kansas constitution defines a “qualified elector” as any citizen of the United States of the age of twenty-one years and upwards who shall have resided in Kansas six months next preceding an election. (Kan. Const, art. 5, §1.)
The statutory procedure for the drawing and summoning of jurors in Sedgwick county is set forth in K. S. A. 43-154. Under the terms of the statute, selection process begins with the personal property assessment rolls.
In support of his challenge to the array, appellant presented the testimony of the election commissioner, the chief deputy in the clerk of the district court’s office, a court reporter (jury clerk), and the county assessor. Their testimony tended to establish that no check was made by any of the officials with respect to the age or citizenship of persons listed on the tax rolls or whether such persons were “registered voters.”
With reference to what is now K. S. A. 43-102, this court has said the statute is directory, and a defendant may not cause the jury panel to be quashed on any ground which does not involve corruption, serious misconduct or palpable disregard of the law. Informalities and irregularities are not sufficient. (State v. Carter, 133 Kan. 718, 3 P. 2d 487. Also, see State v. Snyder, 126 Kan. 582, 270 Pac. 590; State v. Frazier, 54 Kan. 719, 39 Pac. 819; State v. Jenkins, 32 Kan. 477, 4 Pac. 809.)
In State v. Frazier, supra, the names of the jurors placed on the list were taken from the assessment rolls for the year 1883, when they should have been taken from the rolls of 1882, and it was held that a challenge to the array should have been sustained because the law had been disregarded. The situation here is clearly distinguishable, for the sole objection is that the method of selection may have resulted in the listing of jurors not qualified under the law. We deem the method employed led to no more than an irregularity in the selection process, and did not constitute a valid ground for a challenge to the array. For that matter, the record is void of any showing appellant was prejudiced or was deprived of a fair and impartial jury simply because the officials did not ascertain whether or not the prospective jurors possessed the qualifications set forth in K. S. A. 43-102. (See, State v. Clift, 202 Kan. 512, 449 P. 2d 1006, cert. denied, 396 U. S. 910, 24 L. Ed. 2d 186, 90 S. Ct. 225.)
Furthermore, the record contains none of the proceedings relating to the voir dire examination or the actual impaneling of the jury. So far as we know, appellant did not take advantage of the opportunity available and challenge individually any jurors who were not qualified, if, in fact, there were any. In the absence of any showing to the contrary, we must presume that the jurors selected to try the case possessed the requisite qualifications. The main purpose of voir dire examination is to afford counsel the opportunity to question prospective jurors concerning their qualifications. (K. S. A. 60-247 [a\.) If it develops a juror does not possess the qualifications required by the laws of this state, he is subject to challenge for cause. (K. S. A. 43-141.) When some of the jurors are not qualified, but the entire panel is not affected, a motion to quash the entire panel will not lie. The court may simply purge the panel by discharging those individuals not qualified. (See State v. Carter, supra.)
The second ground of appellant’s challenge is that the mode of selecting jurors in Sedgwick county under K. S. A. 43-154 results in the systematic exclusion of women. This comes about because personal property owned by married persons will sometimes be listed on the assessment sheets in only the husband’s name, or if listed in both names, the man’s name is often listed first. Consequently, when name slips for prospective jurors are made up from the assessment sheets, the names of qualified women taxpayers are frequently omitted. To further buttress his argument, appellant contends that approximately one half of the electors in Sedgwick county are women, and a spot check of jury lists for June and July 1969 disclosed only seventeen percent of the names thereon were those of women. Accepting these statistics as true, we do not believe they support appellant’s conclusion that there was deliberate, purposeful exclusion of women from jury duty.
Systematic or purposeful exclusion of members of a class from jury service may not be assumed or asserted — it must be established by proof. (See, State v. Clift, supra.) Just as in the case of alleged discrimination based on race, purposeful exclusion is not satisfactorily proved by showing an identifiable segment of the community is not proportionately represented on the jury fist. (State v. Cushinberry, 204 Kan. 65, 460 P. 2d 626.) In Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, it was stated:
“But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on •the venire or jury roll from which petit jurors are drawn. [Cases cited.] Neither the jury roll nor the venire need be a perfect mirror of the community ■or accurately reflect the proportionate strength of every identifiable group.” (p. 766.)
The statistics set forth by appellant clearly reveal that the selection method employed in Sedgwick county did not result in all women being excluded from the jury list, nor was there any indication that only a token number were included. A disproportionate number of women to men on a jury list does not have any constitutional significance. (Hoyt v. Florida, 368 U. S. 57, 7 L. Ed. 2d 118, 82 S. Ct. 159.) From this record we can only conclude that there has been a complete failure of proof to the effect that the action of the jury selection officials resulted in invidious discrimination against members of the fairer sex.
Turning to the instructions, we find objections were lodged by appellant to at least two of the instructions which stated the essential elements of the offense in the language of the statute. (K. S. A. 21-520.) The statute requires the breaking and entering to be with the intent “to steal or commit any felony therein.” The complaint is made that the instructions were not responsive to the allegations of the information which charged appellant with breaking and entering the building in question with the intent “to commit a larceny and felony therein.” Appellant’s argument goes more to the sufficiency of the information than to the adequacy of the instructions. At any rate, we believe it is utterly without merit.
The law requires that the jury be instructed concerning the essential elements of the offense. This may be accomplished by substantially following the wording of the statute, just as was done in this case. Under the evidence, the jury needed only to determine that there was a breaking and entering with the intent to steal. Whether there was an intent to commit any other felony was immaterial. The sufficiency of the information was not timely challenged by a motion to quash, and under the circumstances, the words “and felony” may be disregarded as mere surplusage. For purposes of charging an offense under the statute, the significant averment was the phrase “to commit a larceny.” The phrases “to commit a larceny” and “to steal” are, for all practical purposes, synonymous in meaning. We are satisfied the jury was not misled and was correctly instructed as to the law of the case.
Likewise, the trial court properly refused appellant’s request for an instruction on attempted burglary.» An attempt to commit a crime, by its very definition, arises when the accused has failed to consummate the commission of the offense. (K. S. A. 21-101.) The evidence in this case did not warrant such an instruction, for it clearly established all the elements of the completed offense. Contrary to appellant’s suggestion, the crime had been fully perpetrated, despite the fact he and his companion were interrupted before they were able to remove any property from the premises.
We have also considered three additional points raised by appellant in his brief. They do not merit extended discussion. It suffices to say that appellant, having had three prior felony convictions, was properly sentenced under the habitual criminal act (K. S. A. 21-107a). He was afforded adequate notice that the provisions of the act were to be invoked and was given the opportunity for a full and complete hearing thereon. (Brown v. State, 198 Kan. 345, 424 P. 2d 576; State v. Stubbs, 195 Kan. 396, 407 P. 2d 215.) The sentence of 25 years was authorized by K. S. A. 21-107a and 21-109. The transcript of proceedings and the journal entry of judgment were sufficiently certain to indicate that the trial court intended the sentence imposed was to run consecutively to the sentence appellant was serving in the federal penitentiary.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the National Council of the Knights and Ladies of Security to determine which of two claimants was entitled to receive the benefits due upon a certificate issued by the society upon the life of a member, Charles E. Shepard, now deceased. When Charles E. Shepard became a member of the society his wife, Mell B. Shepard, was named in the certificate as his sole beneficiary. Oh the first day of March, 1904, she died, and no other beneficiary was ever provided for in the certificate or otherwise designated. In August, 1906, while a resident of the state of Texas, Charles E. Shepard died intestate, leaving a father, three sisters and two brothers surviving him, but no children or direct heirs to inherit his property. In the following October the defendant, James H. Boice, was appointed by the probate court of Cherokee county as administrator of the estate of the deceased, and demand was made upon the plaintiff company for the payment of the benefits provided for in the certificate. R. C. Shepard, the father of the deceased, also entered a claim for the payment of the benefits. The plaintiff company paid into court the amount of the certificate, less a stipulated fee for the creation of a, reserve fund, and asked for a judgment of the court decreeing which of - the two claimants was entitled to the payment of the money. The court found in favor of R. C. Shepard, awarding him $960.42, and against the administrator, James H. Boice, who prosecutes this proceeding in error.
The case was rightly decided. It has already been determined that one holding a benefit certificate in a mutual society has no interest in the benefit, or fund, resulting from his membership, and that the fund can not become a part of his estate. (Olmstead v. Benefit Society, 37 Kan. 93, 14 Pac. 449.) The laws of the order and of the state provide who may be beneficiaries, and a person not within the class for whose benefit such societies are organized can not become a beneficiary.(Olmstead v. Benefit Society, supra; Pilcher v. Puckett, 77 Kan. 284, 94 Pac. 132.) In the Puckett case Mr. Justice Porter said:
“It is inconsistent with the theory upon which benefit societies are organized that the proceeds of a benefit certificate should be considered assets of the member’s estate. Otherwise, it would become liable for his debts and the costs of administration, something not within the contemplation and purpose for which such orders are established. -The insured member himself has no interest in the fund; he possesses simply a power of appointment, which, if not exercised, becomes inoperative.” (Page 288.)
The legislature made specific provision for fraternal beneficiary societies like the one in question, and provided that death benefits must go to families, heirs, blood relatives, affianced husband or wife of a member or a person dependent upon -a member: (Gen. Stat. • 1901, § 3569.) The laws of the society are in keeping with this provision, but the society could not, if it would, pay benefits to persons not within the class designated by the statute. (Gillam v. Dale, 69 Kan. 362, 76 Pac. 861.) But it is claimed that “An act relating to insurance,” enacted in 1905, operates as a repeal of that statute and of the rules of the society affecting the naming or changing of beneficiaries. It provides:
“Section 1. That in all cases of the death of the beneficiary in any insurance policy before the death of the insured, and thereafter the insured dies without having named another beneficiary and without having disposed of said insurance by will, then said insurance shall go to the estate of the insured, the same as other property not exempt.
“Sec. 2. All acts and parts of acts in conflict herewith are hereby repealed.” (Laws 1905, ch. 271.)
This statute manifestly relates to insurance proper and has no application to fraternal benefit societies. The legislature has placed insurance and mutual benefit societies in distinct classes, has provided different schemes for the organization and control of insurance companies and fraternal benefit societies, and has enacted separate codes of rules and regulations appropriate to the nature and purpose of each. The line between the systems has been not only clearly marked out but it is expressly provided that fraternal benefit societies shall be exempt from the provisions of other insurance laws. That the two plans are dissimilar in scope and purpose, and that the rules governing insurance are not applicable to mutual benefits, has been pointed out in earlier decisions. (Bankers’ Union v. Crawford, 67 Kan. 449, 73 Pac. 79, 100 Am. St. Rep. 465; Miller v. National Council, 69 Kan. 234, 79 Pac. 830; Gillam v. Dale, 69 Kan. 362, 76 Pac. 861; Kemper v. Modern Woodmen, 70 Kan. 119, 78 Pac. 452; Pilcher v. Puckett, 77 Kan. 284, 94 Pac. 132.)
These distinctions, as well as the terms employed by the legislature, make it manifest that chapter 271 of the Laws of 1905 was not intended to apply to fraternal beneficiary societies. It speaks of insurance and riot of mutual benefits; of insurance policies and not of benefit certificates. It treats insurance as soriiething in which the insured has an interest and over which he has control, while a member of a beneficiary society has no interest in the fund and no control, except the power to appoint a beneficiary within certain limitations. It assumes that the insured may dispose of insurance by will, whereas a member of a beneficiary society has no such power over the benefits to be paid under his cer tificate. It provides that in case of the death of the insured the insurance may go into the estate of the deceased, while neither the benefit certificate nor the proceeds of it can ever go into the estate of a -member. To apply the provisions of the act to fraternal beneficiary societies would contravene the policy of the state expressed in the statute respecting such societies as to the control and disposition of the funds and as to its most important purposes. Nothing in the language of the act indicates an intention to effect a change so radical or revolutionary. On the other hand, the statute governing beneficiary societies provides that not only the laws relating to insurance shall not apply to such societies but also that “no law hereafter passed shall apply to them unless they be expressly designated therein.” (Gen. Stat. 1901, § 3569.) It is true, as contended by counsel for Boice, that one legislature may not, by an enactment, tie the hands of its successors and prevent the subsequent modification and repeal of a statute, but the provision referred to does not attempt to make the act irrepealable but only to declare a rule of interpretation. The legislature, having separated beneficiary societies from insurance companies and made special provisions for providing and paying benefits to members, simply declared that hereafter this distinction should be maintained, and that acts relating to insurance should not be understood as applicable to beneficiary societies unless they were expressly mentioned in the act. The act in question, instead of making express reference to beneficiary societies, uses language, as we have seen, appropriate only to insurance companies, and its provisions are not in harmony with the theory of beneficiary societies..
There is nothing substantial in the objections to the method of the society in coming into court and obtaining a decision as to who was entitled to the benefits under the certificate, nor do we find any error in the record. The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The Farmers Cooperative Shipping Association brought an action against C. B. Hoffman to charge him personally with certain losses alleged to have been sustained while he was 'its general manager. Issues being joined, the cause was referred to George H. Whitcomb, as referee, who made findings of fact and conclusions of law. The court afterward rendered judgment upon the findings in favor of the plaintiff and against the defendant for the sum of $1706.24. The defendant seeks to reverse the judgment and brings these proceedings in error. The plaintiff has filed a cross-petition in error and asks judgment upon the findings for an increased amount.
It was claimed in the petition that the defendant agreed to manage and conduct the business of the association with care, skill, and fidelity; that he failed to perform his contract, and failed to account for specific sums of money which came into his hands as general manager; and that while general manager of the plaintiff company he engaged extensively in dealing in options on the future price of grain on the board of trade at Kansas City, Mo., contrary to the express provisions of the by-laws of the company, resulting in'loss to the plaintiff.
The Farmers Cooperative Shipping Association was organized in 1903. The charter provided:
“That the purposes for which this corporation is formed are to purchase, sell, store, ship and handle grain, live stock and other farm products, and supplies, and to acquire, own and operate elevators, warehouses, and such other shipping facilities as the business of the association may require, and all lands necessary or convenient for such .purposes.”
At the first meeting of the board of directors, and after the election of officers, by-laws were adopted which contained the following provisions:
“Sec. 2. If any officer shall fail to perform any serv ice required of him by law or by the board of directors, or shall be guilty of any misuse of the funds or property of the association, or shall engage in the transaction of any business in the name or on behalf of the association without authority from the board, or shall engage in speculating, or in options on grain, stock, or produce, he shall be deemed to have forfeited his position, and upon determining that any officer has committed any such offense the board shall immediately remove him from office.
“Sec. 3. Any officer guilty of misconduct, as provided in section 2 of this article, shall be personally liable to the association for any damage resulting from such misconduct, and the stock of such officer or any indebtedness of the association to him on any account shall be subject to the payment of such liability.
“Sec. 4. This association shall at no time speculate in grain or live stock or other farm products, nor shall the funds of the association be loaned to any person.”
The defendant, who was a director of the company, was appointed general manager, and his salary fixed at $4000 per annum. He was given the management and control of the business of the company, with authority to employ such persons as in his judgment were competent and suitable for the various positions they were required to fill, to discharge any employees, to sign «checks, drafts and all documents necessary for the transaction of business, to receive moneys and funds from any and all sources, and to distribute them as the business should require. At the time he became general manager of the company the defendant was a member of the firm of C. Hoifman & Son. This firm owned and operated a mill at Enterprise, Kan., which required daily about 6000 bushels of wheat, and the firm had been engaged for twenty-five or thirty years in buying and shipping grain. The company commenced business in July, 1903, under the charge of the defendant as general manager. Its principal business was done at Enterprise, and consisted in buying and selling grain, and also handling grain for customers on consignments. The business increased until the company owned and operated about thirty-five elevators in Kansas, Nebraska, and Oklahoma.
On October 1,1903, the main office of the company was removed to Kansas City, Mo., and located in the same building where the board of trade is situated. About the same time the company, acting through its general manager, purchased a membership on the board of trade, which the referee found was not necessary to the carrying on of a cash grain business, but was necessary only to enable the company to buy and sell grain for future delivery. For some time thereafter the business which the company engaged in was the purchase of grain at its stations in the country from its stockholders and other producers, and the sale of the same to millers and other buyers wherever located, or to dealers on the Kansas City market, and in the. sale at Kansas City of grain consigned to it for sale on commission.
It also appears from the findings that some time in the spring of 1904 the company, under the defendant’s supervision and direction, commenced the business of buying and selling grain for future delivery for customers on the board of trade. One of the company’s, largest customers was C. Hoffman & Son, and a large part of the business carried on for that firm was of a. speculative character, and was conducted for the sole purpose of making profits on the rise and fall of the market. Under the management of the defendant there was a book, known as the “option book,” in which the accounts were kept of the future-delivery business. Entries in this book were sometimes made by defendant, but the book was for the most part kept by J. M. Senter, assistant general manager. His appointment was made by the defendant, but was afterward ratified by the board of directors. Senter was permitted by the defendant to sign checks in the name of the company. He soon began speculating on his own account, and conducted a great many transactions in futures, most of which were carried on the books in the name of C. Hoffman & Son. The losses on all of his transactions were paid out of the funds of the company, by checks drawn by himself. The refei-ee found that these losses amounted to $2396.87, and further found in effect that the defendant did not know of Senter’s deals until April 20, 1905, but that with reasonable diligence he should have discovered, as early as February 28, 1905, that Senter was dealing in options with the funds of the company. The referee therefore held that the defendant was not liable for the, full amount of the loss on the Senter speculations, but only for the sum Of $1528.12, the amount which accrued after the date when the defendant should have made the discovery.
We shall first consider the claims of error made by the defendant. The demurrer to the petition was properly overruled. There was no misjoinder of causes of action sounding in tort and on contract. The separate causes of action were all alleged to have resulted from-the failure of the defendant to perform his duties as manager of the company. The cause was a proper one for reference, and the court committed no error in referring it. Before any judgment could have been rendered it was necessary that the books of the company and hundreds of accounts with customers should be examined.
The principal contention of the defendant is that the court should have rendered judgment in his favor on the findings. This contention is based on two propositions: First, that the findings show that the transactions complained of were of a legitimate character, and clearly within the power of the company and of the defendant as general manager; second, that the findings show that defendant’s action in dealing in options and futures was acquiesced in and ratified by the board of directors and stockholders of the company.
In support of the first proposition — that the business was of a legitimate character — counsel refer to the charter of the company, which authorized it to pur chase, sell, ship and handle grain, and argue that the company could not transact its legitimate business without contracting for the future delivery of grain. It is doubtless true that the provision of the by-laws prohibiting speculations in options on grain was not intended to prevent the company from making a legitimate contract for the future delivery of grain. A number of decisions are cited holding that contracts for the future delivery of merchandise are not void on their face, and that it devolves on him who attacks such a contract to show that it was not intended that the article sold should be delivered and to show that nothing but the difference between the market price and the contract price was to be paid. We deem it wholly unnecessary to consider the question in its broadest scope or to enter into a discussion of the differences between “puts” and “calls” and “options” and “spread-eagles.” There can be no question that if, under the guise of a contract for the future delivery of merchandise, the real purpose and intent is merely to speculate in the rise and fall of prices, and the goods are not to be delivered but one party is to pay to the other the difference between the contract price and the market price at a future date, the whole transaction is void. The real question here is not whether the transactions were void, but whether they were in violation of the by-laws and resulted in a loss to the company for which the defendant is liable. The company saw fit to enact bylaws which expressly prohibited speculating in options on grain, and which provided in substance that any officer of the company who permitted it to be done shouid be liable to the company for any loss which the company thereby sustained. The meaning of the language, taken with the context, is perfectly clear. The words “or shall engage in speculating, or in options on grain, stock, or produce” are well understood to mean the making of contracts in which the parties speculate on the rise and fall of prices. (See 6 Words & Ph. Jud. Def. 5002; Plank v. Jackson, 128 Ind. 424, 26 N. E. 568, 27 N. E. 1117; Osgood Bauder & Co., 75 Iowa, 550, 39 N. W. 887, 1 L. R. A. 655; Pearce v. Foote, 113 Ill. 228, 55 Am. Rep. 414.)
The findings of. the referee are very full and complete with respect to the manner in which the business complained of was conducted on the board of trade at Kansas City, from which it conclusively appears that the losses were caused by the company’s engaging in the very kind of business which the by-laws sought to prohibit. There is no pretense of an express ratification of the acts of the defendant by the company. The only claim of ratification is based on findings which show that the board of directors knew that a membership had been purchased on the board of trade, that John W. Moore had been employed as floor salesman, that the company was acting as broker for customers dealing in futures, and that the company itself was doing business of that character. In addition, it is claimed that the matter was discussed at one of the annual meetings and some of the stockholders protested against the company’s dealing for itself or others in speculative contracts. The board of directors could not bind the association by any ratification of transactions which the by-laws expressly prohibited, because the by-laws applied as much to the directors as to the defendant and furnished the rules of conduct for all officers of the association. The provision of the by-laws prohibiting speculation in options was never repealed. It can not therefore be said that the company ratified the defendant’s acts in conducting the business complained of.
We come now to the claims made by the cross-petition in error. These are based, first, on the contention that judgment should have been rendered on the findings of the referee in favor of the plaintiff for the full amount of the losses sustained by the Senter deals. It is urged that defendant’s liability for these losses. should not be made to depend upon his diligence in discovering what it was his duty to know, and that he should be charged with the full amount thereof, for the reason that he permitted business of this kind to be carried on with the company's funds in express violation of the provisions of the by-laws. It is sufficient to say that the evidence is not before us and we are bound by the findings of fact, unless we can say as a matter of law that it was the duty of the defendant to know each day concerning all of Senter’s transactions. The referee found that the volume of business done by the company was so great “that the defendant was not able personally to discharge all of his duties, and it was necessary for him to hire an assistant general manager”; that the board of directors knew of the assistant’s employment and acquiesced therein, and fixed his salary at $125 per month. He then found that, in view of the facts and circumstances surrounding the Senter purchases of February 17 and February 25, defendant would have discovered, at least by the 28th day of February, that Senter had bought this wheat and was using the funds of the company to pay his losses, and that the items were entered in the “option book” in the account of C. Hoffman & Son, if he had exercised such care and diligence as the facts and circumstances required. In view of these findings we are not prepared to say that as a matter of law the defendant should have made the discovery earlier or that he was bound to know each day everything that Senter did. The evidence was all before the referee, and the finding that it was not possible for the defendant with due diligence to have discovered the facts earlier must be held conclusive.
The next question presented by the cross-petition arises over what is known as the “hedge account.” The findings show that the company, under the direction and management of the defendant, purchased options on wheat for the purpose of “hedging” — that is, protecting the company from loss in buying and shipping wheat to Kansas City. In other words, when the company had contracted to sell actual wheat at Kansas City in the future, in order to protect the company against a rise in the market the defendant purchased these options. The total loss on the “hedge account” is found to be $556.25, which was paid, by the company. The referee, however, found that these particular transactions were made for the company “in good faith and acting according to his best business judgment and were believed by him at the time to be for the benefit' and best interests of the company.” The referee therefore held that these transactions were not in violation of the by-laws of the company, although made by the defendant “solely on his own motion and without the actual knowledge or consent of the board of directors or any of them.” And, as a further conclusion of law, the referee held that defendant was not liable for the losses on the “hedge account,” and the judgment of the court followed the recommendation of the referee. In this respect we think both the referee and the court erred. Again the real question is not whether speculating in options on grain for the purpose of protecting the dealer from loss on actual trades is reprehensible in morals or opposed to the law, but whether the transactions embraced in the “hedge account” were prohibited by the by-laws of the company. It appears beyond all cavil that these transactions were speculative options, bought by the defendant on account of the company with its money, resulting in a loss to the company. Manifestly the good faith with which he made the deals is no defense. If the by-laws had provided that no officer should speculate in options except when in his judgment it was for the best interests of the company a different question would be presented.
We have carefully considered all the matters urged by both petitions in error and find nothing further which requires comment or which alters our view of the case. It is our opinion that upon the findings the plaintiff is entitled to recover on the fourth cause of action the amount of the loss sustained on the “hedge account,” which the referee found to be $556.25.
It is therefore ordered that the judgment be modified in accordance with this opinion, and judgment is directed in plaintiff’s favor for the sum of $2262.49. | [
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The opinion of the court was delivered by
Graves, J.:
The plow company contends that the object of this action is to recover damages on account of the unsuccessful action filed against the plaintiff, Spatz, and that the nature of the damages alleged in the petition are such that no recovery can be had in the absence of malice and want of probable cause, which are not alleged. In other words, it is contended that the action is in substance an action for malicious prosecution, with the essential elements omitted. On the other hand, Spatz claims that it is merely an action on a breach of the warranty upon which the machine was purchased.
The petition is too long to give a copy in full. It will be sufficient to say that it recites fully the contract of purchase, the warranty, the failure of the machine to work, the return thereof and a demand for the notes, the refusal to comply with the demand, the1 suits brought to recover on the notes, and then proceeds as follows:
“That, by reason of the refusal of the defendant to return said notes when demanded and accept said worthless machinery, and by reason of its institution ■of the actions hereinbefore set out, plaintiff was compelled to, and did, employ counsel to defend, and was -compelled to, and did, pay out large sums of money as ■counsel and attorney’s fees in maintaining his defense thereto; that the reasonable value of the services that he was compelled to, and did, procure was the sum of $430; that by reason of said wrongful acts of the defendant plaintiff was compelled to pay out $297 to procure testimony and maintain his defense in said actions ; that in preparing and maintaining such defense he was put to large expenses in the way of traveling ■expenses, hotel bills, printing briefs, etc., to the amount ■of $83, and that he necessarily lost a great deal of time from his work, the fair value of which was $200. The plaintiff has been damaged by the failure of the defendant to comply with the terms of said contract in the aggregate sum of $1010. Prays judgment for $1010 and costs.”
From this the nature of the damages sought to be recovered appears quite clearly. They are not such as followed directly from the refusal to take back the -ma shine and return the notes. The immediate cause of the alleged damages was the second action on the notes. If it had not been commenced the injuries of which the plaintiff complains in his petition would not have been sustained. It seems, therefore, that the real object of the action is to recover damages sustained on account of the prosecution of an action against the plaintiff, and nothing else. The action was the proximate cause of the damages alleged, and the breach of warranty had no direct connection therewith. The plow company paid all the legal costs incurred in the action dismissed. This is the measure of liability incurred by an unsuccessful litigant, where there is no malice or wrong intenf on his part in commencing the action. (1 Sedg. Dam., 7th ed., 52, 174, and notes; Salado College v. Davis, 47 Tex. 131; Young v. Courtney, 13 La. Ann. 193; Henry v. Davis, 123 Mass. 345.)
This law is conceded by the plaintiff to be elementary, but he insists that it does not apply to this action. Malice, want of probable cause, or bad faith, it is insisted, are not necessary elements in this action, it being brought merely for the purpose of recovering damages for a wrongful breach of warranty. The case of Osborne & Co. v. Ehrhard, 37 Kan. 413, 15 Pac. 590, is cited in support of this contention. We do not understand that case to sustain this view. In that case Ehrhard bought a machine under a contract similar to the one in this case. The machine was returned, and accepted. A demand was made for the note given therefor, as in this case. This was refused, and the note was sold to an innocent holder, who brought an action thereon. While the words “malice,” “want of probable cause” or “bad faith” do not occur in the petition, the language used quite clearly shows that the company in that case, with full knowledge that the machine was worthless, accepted it as such, and then placed the note in other hands with the evident design that it should be collected, knowing that no defense could be made thereto. This was bad faith, if not fraud. The damages which resulted to the plaintiff in that case were the direct result of the action brought by the holder of the note, and were contemplated and intended by the company when the note was transferred to an innocent holder. In this respect the case here being considered falls far short of the one cited.
The refusal of the plow company to deliver the notes to Spatz upon demand may have created a cause of action which gave Spatz a right to recover damages therefor, but, if it did, no such damages constituted any part of those here sought to be recovered. These damages, and every item thereof, resulted directly from bringing the action, but their connection with the refusal to deliver the notes, if any, is too remote to be considered.
We conclude that the petition fails to state facts sufficient to entitle the plaintiff to a judgment for any of the damages awarded. The facts found by the court are insufficient to entitle the plaintiff to a judgment for any the damages prayed for or awarded to him. The court’s conclusion of law is erroneous. The judgment of the district court is reversed, with instruction 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
Benson, J.:
On March'5,1904, John R. Harmon was the owner of a tract of land in Cowley county, Kansas, upon which he and his wife resided as a homestead. On the same day he was convicted of a crime in the district court of that county, and on April 12, 1904, he was sentenced to the penitentiary. He appealed to the supreme court, where the judgment was affirmed December 1, 1904. From the time of his sentence, April 12, 1904, until January 19, 1905, John R. Harmon was at liberty under bond, but on January 19, 1905, he was taken to the penitentiary, where he remained until January 12, 1906, when he was pardoned and discharged.
After his conviction and sentence in the district court, but before he was taken to the penitentiary, Harmon and his wife, Lucinda W. Harmon, made a deed of the homestead to John R. Simpson and Ella Simpson, which was placed in the hands of R. A. Gilmer, to be delivered to Simpson for the benefit of Mrs. Harmon. On March 5, 1905, Fred Bowers negotiated with Mrs. Harmon for the purchase of the land, upon which she still resided, and the deed was thereupon executed to him by John R. Simpson and wife. The consideration for this deed was $500 cash, the payment of taxes, and the release of prior debts of Harmon and wife to Bowers, which were liens upon the land. Some time in the summer of 1905 Mrs. Harmon died, leaving in the possession of John R. Simpson $297, part of the money received by her from Fred Bowers, to be delivered to Mr. Harmon when he should be released from the penitentiary, which was done.
This action was brought by Harmon against Bowers to recover the land, and for rents and profits. The judgment was for the defendant, and the plaintiff asks for a reversal. The plaintiff claims (1) that on account of his disability as a convict he was unable to make a legal transfer of his realty during the time he was under sentence but at liberty under bond, and (2) that the deed which he made to John R. Simpson, in'which his wife joined, had never been legally delivered.
Section 2301 of the General Statutes of 1901 reads as follows:
“A sentence of confinement and hard labor for a term less than life suspends all civil rights of the person so sentenced during the term thereof.”
It is necessary to determine when the term of imprisonment referred to in this statute begins. The defendant having appealed to this court from the judgment of conviction and sentence, and having given bond as provided by law, execution of the judgment was stayed, as provided in chapter 389 of the Laws of 1903. Another statute provides for the appointment of a trustee to take charge of and manage the estate of a person imprisoned in the penitentiary for a term less than life, but such appointment can not be made until satisfactory evidence is given that the convict is actually imprisoned. (Grim. Code, §§ 337, 338.) Prom these provisions it appears that civil rights are not suspended until the convict is imprisoned. If we should hold that civil rights are suspended the moment sentence is pronounced the defendant’s punishment would be increased by taking away his civil rights for an indefinite period.in excess of the term of imprisonment, which does not begin until the stay allowed upon appeal has expired and he is imprisoned, or, possibly, when he is in custody to be conveyed to the penitentiary.
“If, after sentence has been pronounced, no appeal is taken, the conviction is complete, and its consequences attach and operate at once. But if an appeal be prosecuted, the effect of the appeal is to suspend and hold in abeyance the-enforcement and legal consequences of the conviction until the judgment of the court of last resort has affirmed the conviction had in the trial court-.” (Arcia v. The State, 26 Tex. App. 193, 205, 9 S. W. 685.)
The period of confinement and hard labor referred to in section 2301 of the General Statutes of 1901, above quoted, is the same as the actual imprisonment referred to in sections 337 and 338' of the criminal code, and is the period intervening between the date of actual imprisonment under the sentence and the discharge therefrom. (Williams v. Shackleford, 97 Mo. 322, 11 S. W. 222; The State v. Grottkau, 73 Wis. 589, 41 N. W. 80, 1063, 9 Am. St. Rep. 816; Ex Parte Jones and Ellwood, 41 Cal. 209; In re Morse, 117 Fed. 763.)
It is next insisted that the deed to Simpson is void as a conveyance for the reason that it was not delivered. The trial was before the court, and no special findings were made, but the general finding for the defendant determined every material fact in issue necessary to uphold the judgment against Harmon. It appears from the abstract that Harmon and wife, in anticipation of the imprisonment of the husband, desired to make some disposition of the homestead for the benefit of the wife, and accordingly, with the consent of the Simpsons but without any consideration moving from them, executed and acknowledged the deed to them and left it with the notary, Mr. Gilmer, for the grantees. Mr. Simpson testified that Harmon told him of his intention to make the deed for the benefit of Mrs. Harmon, and afterward informed him that he had done so, and requested him to go to Gilmer and get the deed. Mr. Gilmer testified that the deed was delivered to him with instructions from Harmon to deliver it to Simpson for the benefit of Mrs. Harmon. Mrs. Harmon, while negotiating for the sale of the property to Bowers, sent to Simpson for the deed, but the messenger did not find it there, and by Simpson’s direction went to Gilmer for it, and Gilmer, at Simpson’s request and upon the assurance that it would be used for the benefit of Mrs. Harmon, handed it to the messenger; who took it to the real-estate agent who was preparing the deed to be executed by the Simpsons, and it was handed with that deed to Bowers, the purchaser of the land. This court has said:
“An actual or formal delivery of a deed never was necessary. A deed may be good by constructive delivery as well as by actual delivery. Any words or acts showing an intention on the part of the grantor that the deed shall be considered as completely executed, and the title conveyed, is sufficient.” (Tucker v. Allen, 16 Kan. 312, 319.)
The manual deposit of a deed with a third party, to receive and hold for the grantee, with intent thereby to give it effect as a conveyance and to place it beyond the custody and control of the grantors, with a declared or manifest purpose of making a present transfer of title, is a sufficient delivery. (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Kittoe v. Willey, 121 Wis, 548, 99 N. W. 337; Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439, 53 Am. St. Rep. 532; 1 Devlin, Deeds, 2d ed., § 269.)
It is argued that the deed while in Gilmer’s hands was subject to the dominion and control of Mrs. Harmon and therefore subject to recall. Upon this matter there was not only the inference to the contrary that might be drawn by the trial court from the testimony above stated, but there was the additional testimony of Mr. Gilmer that if Simpson had called for the deed he would have delivered it to him, even without Mrs. Harmon’s consent, and when he did give it up, as we have already noted, it was upon Simpson’s direction.
The arrangement by which Harmon and wife voluntarily conveyed their homestead to the Simpsons, to be used by the latter for the benefit of Mrs. Harmon, appears to have been a beneficent provision for her, in view of the condition of the property and of his pending imprisonment, and it was carried out in good faith by the persons in whom they confided. The plaintiff’s-wife was thereby supported, wholly or partially, his. debts were paid, and the remainder of the consideration, left in Mr. Simpson’s hands when she died, was,, according to her request, duly paid over to him. Retaining this material part of the consideration, he in-' voked the aid of. the court in an effort to recover the land for which this consideration had been paid. No sufficient reason, legal or equitable, being shown for-undoing this transaction at his instance, the decision, was adverse to his claims. We find no reason to disturb this judgment, and it is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action to recover rent. The parties executed a written lease, which, except immaterial parts, reads:
“This lease, made this first day of February, 1904, by J. B. Shields, of the city of Wichita, county of Sedgwick, state of Kansas, of the first part, to Mrs. L. K. Brown, of the city of Wichita, county of Sedgwick, state of Kansas, of the second part,
“Witnesseth, That the said party of the first part, in ■consideration of the rents, covenants, and agreements of the said party of the second part, hereinafter set forth, does by these presents grant, lease and rent to the said party of the second part the following-described property, situated in the county of Sedgwick and state of Kansas, to wit, the first-floor room of the building situated on lot number thirty (30), Main street, Wichita, Kan., as shown by the recorded plat thereof, and known as 134 North Main street. . . . Party of second part agrees not to carry a line of millinery stock of any description, and, in event of vio lation of this agreement, agrees to pay an additional $100 to the party of the first part, making the total rent, in that event, two hundred and twenty-five dollars ($225) a month. Party of the second part agrees to give the party of the first part thirty (30) days’ notice of removal before the expiration of this lease.
“To have and to hold the same unto the said party of the second part from the first day of February, 1904, to the first day of February, 1906, and the said party of the second part, in consideration of the leasing of the premises, as above set forth, covenants and agrees with the said party of the first part to pay the said party of the first part, his heirs or assigns, as rent for the same, the monthly rent or sum of one hundred and twenty-five and no-100 dollars, in monthly payments as follows, to wit, in advance, on the first day of each month until the expiration of the time of this instrument. . . . The said party of the second part further covenants with the said party of the first part that at the expiration of the time mentioned in this lease to give peaceable possession of the said premises to said party of the first part, in as good condition as they now are, the usual wear, inevitable accidents, and loss by fire excepted.”
The lessee took possession of the leased property February 1, 1904, and occupied it until August 31, ■ 1905, when she moved out and delivered the keys to the lessor. She paid no rent afterward. The lessor commenced this action in the city court of the city of Wichita to recover the unpaid rent, and obtained a judgment for the amount claimed. Appeal was taken by the lessee to the district court of Sedgwick county, where the lessor was again given a judgment, and the lessee prosecutes error.
The parties disagree as to the proper interpretation, of the lease. The lessee insists that the language, “party of second part agrees to give the party of the-first part thirty (30) days’ notice of removal before the expiration of this lease,” means that she may terminate the lease at any time by giving thirty days’ notice. The lessor contends that it merely requires the lessee to give thirty days’ notice of her intention to< remove when the lease is terminated by its own terms.
The lessee, in support of her position, offered to prove that before the execution and delivery of the lease she ,insisted upon having a provision inserted such as she claims this to be, and that the lessor, in compliance with this request, wrote into the instrument the words in controversy, claiming that they constituted such a provision, whereupon she was satisfied and accepted the lease. The court rejected this offer, on the ground that the language was unambiguous, its meaning being clear, and that the evidence tended to change a written instrument by oral proof. The lessee insists that the evidence offered did not change or vary the terms of the lease, but merely aided in its interpretation. We are inclined to adopt the view of the lessee. Such a provision as she claims this to. be is common in such instruments, and is material and useful. It does not seem unreasonable to suppose that such a provision might have been intended by the parties to this lease.. On the other hand, it seems highly improbable that they would insert a provision requiring the lessee to-give the lessor thirty days’ notice that she intended to' comply with her contract by removing from the premises, as by its terms she was bound to do. Such a provision would be unusual and of no practical importance. The language does not clearly indicate such intent. As: between two doubtful interpretations, that should be adopted which seems to be the most reasonable, considering the nature and purpose of the instrument and the situation of the parties.' Without the aid of extrinsic circumstances the language here used may be regarded as equivalent to the following: “In case of removal before the expiration of this lease, party of the second part agrees to give the party of the first part thirty days’ notice thereof.” We think, however, that the language is sufficiently ambiguous to justify the admission of evidence of the circumstances surrounding the execution of the instrument for the purpose of aiding in its interpretation.
With the facts contained in the offer of proof no doubt would exist as to the intent of the parties, and the interpretation contended for by the lessee would clearly appear to be correct. The notice given by the lessee reads:
“Wichita, Kan., July 28, 1905.
“Mr. J. B. Shields, City:
“Dear Sir — This is to notify you that I will vacate this room, 134 North Main street, September 1, or as soon thereafter as I can obtain possession of my new location. Mrs. L. K. Brown.”
It is claimed that the last clause of this notice leaves the time when the place will be vacated so uncertain as to destroy its force as a thirty-day notice. This criticism is well taken, but the contract does not require a written notice and the actual removal and delivery of the keys on August 31 was notice from that date, and therefore the defect in the written notice would only affect the rent for one month.
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Per Curiam:
This is an original proceeding in discipline.
This matter came to the attention of the State Board of Law Examiners by reason of findings made by the District Judge of division No. 4 of the Johnson County District Court. The findings referred to were entered in connection with a separate maintenance action entitled Madeline Slaughter v. John Slaughter in the District Court of Johnson County.
The district court found that the conduct of the respondent, J. Nelson Thompson, while he was an attorney for the defendant in the above entitled case, indicated unethical conduct by reason of respondent going to the home of plaintiff and conversing with her concerning the subject matter of the action. A transcript of the testimony of respondent in the divorce action was forwarded to the State Board of Law Examiners. An investigation was made by a member of the Board and a report was filed to the effect that the investigation disclosed facts which warranted further proceedings. (Supreme Court Rule No. 204, 203 Kan. lv.)
Pursuant to the provisions of Supreme Court Rule No. 205 the Board determined that a hearing should be held by a panel consisting of three members of the Board. An amended complaint was filed in form and substance as follows:
“Pursuant to Rule No. 205 of the Supreme Court, and for the purpose of setting forth the charges herein clearly and specifically, the complaint against J. Nelson Thompson is amended to read as follows:
“I
“On July 25, 1968, J. Nelson Thompson did, while he was attorney for the defendant in Madeline Slaughter v. John Slaughter, No. 41443, in the District Court of Johnson County, discuss the subject of that controversy with the plaintiff at her apartment in Lenexa, Kansas, without the prior knowledge or approval of the plaintiff’s attorney.”
The charge contained in the amended complaint rests upon an alleged violation of No. 9 of the Canons of Professional Ethics adopted by the American Bar Association (198 Kan. xvnx, [now Rule No. 501, DR 7-104 (A) Code of Professional Responsibility]), which reads:
“Negotiations with Opposite Party. A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”
On September 3, 1969, a hearing was had on the amended complaint by the duly constituted three member panel of the Board of Law Examiners. The background of events and material facts pertaining to the accusation are related in the findings of the panel as follows:
“1. Respondent is admitted to practice law in the State of Kansas, having been admitted on motion in 1952 under Rule 8 of the Rules of the State Board of Law Examiners (now Rule 210 [i]), and does now maintain his office at 3427 Prospect, Kansas City, Missouri.
“2. That on or about July 29, 1968, the respondent, as attorney and counsel for John H. Slaughter of 6306 Walnut Street, Kansas City, Missouri, filed an action in the Circuit Court of Jackson County at Kansas City against Madeline Slaughter praying for a divorce, being Case No. 717549 in that Court. Prior to the filing of the action in Kansas City, Missouri, an action was pending between the same parties for the same relief in Case No. 5462 in the County Court of St. Charles County, Missouri. This case was dismissed on June 11, 1968 for want of prosecution. On June 27, 1968, respondent, as attorney for John H. Slaughter, attempted to get the case in St. Charles County, Missouri, reinstated.
“Madeline Slaughter by and through her attorney, Wayne L. Zeigler of Mission, Kansas, filed her action for divorce against John H. Slaughter in the District Court of Johnson County, Kansas, on or about May 17, 1968, and on or about June 19, 1968, respondent filed a motion in Case No. 41443 in the District Court of Johnson County requesting the petition of Madeline Slaughter for separate maintenance be dismissed. At the time, Charles S. Scott of Topeka, Kansas, joined with the respondent on the motion.
“Respondent J. Nelson Thompson appeared in the District Court in Johnson County on several occasions as attorney for John H. Slaughter, however, the Court refused to recognize him as counsel in the Johnson County District Court proceedings because of his failure to comply with the provisions of K. S. A. 7-104. The respondent continued, however, to act as attorney for the said John H. Slaughter, advising and counseling with the said Slaughter and with Chas. S. Scott, attorney of record in the Johnson County case, in reference to that case. He did at a later date and on the sixth day of September, 1968, appear in the Johnson County District Court as attorney for John H. Slaughter, and the Judge of that court again refused to allow him to take part in the proceedings in the courtroom. While this relationship of attorney and client existed between the respondent and John H. Slaughter, the respondent did visit with the other party to the action, Madeline Slaughter, on or about July 25, 1968, and in visiting with her discussed the merits of the Johnson County case with her, including a discussion with regard to the furniture of the Slaughters’, which, at that time, was in possession of Madeline Slaughter; and further, had a discussion with her regarding her wishes as to the custody of the minor children of John H. and Madeline Slaughter, both of which matters were involved in the divorce action in Johnson County. At that time the respondent knew that Madeline Slaughter was represented by counsel in Johnson County, to-wit Wayne Zeigler, and he did not request permission from Zeigler to talk to Zeigler’s client, nor did he advise Zeigler that he intended to talk to Madeline Slaughter. Subsequent to that date, and on October 15, 1968, during a hearing in the District Court of Johnson County, Kansas, in the case of Madeline Slaughter against John H. ^ Slaughter, the respondent did testify as to his conversations with Madeline Slaughter held outside the presence of, and.without the knowledge of counsel for Madeline Slaughter, and quoted Madeline Slaughter as stating to him on July 25, 1968:
• “ ‘[T]hat the children- were over in' Danville, Illinois with his parents, and she was pleased that they were there and she had no objections to them remaining there and the indication was to me they could always remain there because she knew they were being well taken care of. . . .’ which related to the issue then pending before the Johnson County District Court as to the custody of the minor children of the parties.
“Respondent’s testimony in regard to the custody of the -children contradicted the testimony of Madeline Slaughter that she did not want the children cared for and in the actual custody of John H. Slaughter’s parents.
“Respondent testified in regard to the furniture in Madeline Slaughter’s possession that he tried to convince her to turn the furniture over to him, and that he was acting as attorney for the true owners of said furniture, relatives of John H. Slaughter, and attempted to excuse his visiting Mrs. Slaughter on that basis.”
The panel concluded that respondent’s admitted conduct in communicating with Madeline Slaughter, without the consent of her attorney, was a clear violation of Canon No. 9. The panel recommended that respondent be disciplined by “Public Censure” in accordance with provisions of Supreme Court Rule No. 205 (m) and (n) (203 Kan. lv-lvu).
The findings of the panel were submitted to and adopted by the Board of -Law Examiners as a whole. Thereafter, the Roard filed its report, findings and recommendations with this court and mailed a copy thereof to the respondent and his attorney as provided for under Rule No. 205.
Respondent elected to file exceptions to the report of the Board of Law Examiners and the matter was docketed in this court.
In short, respondent claims that the district court advised him that he could not be recognized as counsel in the case because of his failure to comply with the provisions of K. S. A. 7-104 and that, thereafter, respondent considered himself as no longer participating in the case as an attorney for John H. Slaughter.
Respondent admits he visited Madeline Slaughter on or about July 25, 1968, but with respect to the Board’s finding in this connection he alleges:
“. . . the respondent was retained by the mother and father of John H. Slaughter to recover certain items of personal property, to-wit: furniture, from Madeline Slaughter and in the process of discharging his service on behalf of the parents of John H. Slaughter, he made arrangements to visit Madeline Slaughter solely for the purpose of discussing the recovery of the furnishings. (A copy of respondent’s letter to the Slaughter parents is hereto attached and made a part hereof.) While he was present at the residence of Madeline Slaughter, Madeline Slaughter, without any suggestions or probing, voluntarily made statements regarding John H. Slaughter, defendant in the separate maintenance action, and then about the children. And, she stated that the children were in Danville, Illinois with the parents of John H. Slaughter and she was pleased that they were there and that she had no objections to them remaining there. . . .”
Mrs. Slaughter’s testimony refutes respondent’s claim that she voluntarily brought up the subject of the children and her husband during the conversation on July 25, 1968. When questioned whether it was true she had volunteered information about the children she answered “No, it’s not.”
There is evidence that on July 29, 1968, four days following the conversation with Mrs. Slaughter, respondent, as attorney for John Slaughter, filed a divorce action in Jackson County, Missouri, in an attempt to revive a previous action which had been filed in St. Charles County, Missouri.
In September 1968, at a hearing in the separate maintenance action in the district court of Johnson County, Kansas, respondent once again attempted to sit at John Slaughter’s counsel table with Mr. Charles Scott.
Despite the fact that respondent was not permitted to sit at the counsel table, the record shows that respondent continued to be deeply involved in representing John Slaughter in his domestic difficulties with his wife, Madeline. Respondent’s actions and his attempt to sit at the counsel table in September 1968 is persuasive evidence that he continued the representation of his client. We are forced to conclude the evidence was sufficient to sustain the charge.
Respondent’s evidence that he had been retained by John Slaughter’s parents to recover furniture from Madeline might serve as an explanation of his visit to Madeline’s residence, but it is no justification for his conversation with Madeline concerning custody of the children or other issues involved in the pending litigation.
The purposes of Canon No. 9 are to shield the adverse party from improper approaches and to preserve the proper functioning of the legal profession. While there is nothing about respondent’s conduct that amounts to fraud, dishonesty or moral turpitude, nevertheless it was in violation of the purposes of Canon No. 9.
It is, therefore, by the court considered, ordered and adjudged that J. Nelson Thompson be and he is hereby censured by this court. | [
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The opinion of the court was delivered by
Harman, C.:
This is a postconviction proceeding. William F. Zimmer was convicted by a jury of the offenses of kidnaping in the first degree, with hanm inflicted (K. S. A. 21-449) and murder in the first degree (K. S. A. 21-401). The jury imposed death for the kidnaping and life imprisonment for the murder. Upon direct appeal the conviction and sentences were affirmed (State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. ed 2d 286, 88 S. Ct. 298). Reference is made to that decision for facts supplementary to those stated herein.
Zimmer then commenced this proceeding for relief under K. S. A. 60-1507. The trial court held a pretrial conference in the nature of an omnibus hearing with appellant present, at which it made a definitive order narrating the factual history, reciting agreements of the parties with respect to evidence, stating issues, requiring the prosecution to submit to requested discovery procedure and furnish certain services requested by appellant, and generally establishing a blue print for the formal hearing. In this order the court specifically stated all issues on which proof was offered would be decided on their merits.
After evidentiary hearing at which Zimmer appeared and was represented by present court-appointed counsel the trial court modified appellant’s sentence by vacating the death penalty and resentencing him upon the kidnaping charge to life imprisonment. In all other respects appellant’s application was denied and he now appeals.
Evidence adduced at the 60-1507 hearing will be referred to as necessary in considering appellant’s specifications of error.
Under our law, in event of conviction by a jury of the offenses of first degree murder or aggravated kidnaping, the jury is required to fix the penalty either at death or life imprisonment (formerly K.S.A. 21-403 and 21-449, now K. S. A. 1970 Supp. 21-4501 [a]). Prior to appellant’s initial trial the then presiding judge in chambers excused nineteen prospective jurors from service in the case, without voir dire examination, because of their indication of conscientious or religious objection to the death penalty. At trial upon voir dire examination thirty-one additional veniremen were, upon the state’s challenge for cause, excused upon their statement they had conscientious or religious objection to imposition of the death penalty. No effort was made to probe prospective jurors’ attitudes within the dimensions of K. S. A. 62-1404 or 62-1405.
At the postconviction proceeding the court applied the retroactive rule announced June 3, 1968, in Witherspoon v. Illinois, 391 U. S. 510, 20 L. ed. 2d 776, 88 S. Ct. 1770, that a death sentence cannot constitutionally be executed if imposed by a jury from which have been removed for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty, and, upon this basis, the trial court vacated appellant’s death sentence and resentenced him to life imprisonment upon the kidnaping charge.
Appellant now contends the exclusion of jurors evincing opposition to capital punishment denied him trial by a representative and impartial jury on the issue of guilt or innocence, in violation of the due process and equal protection clauses of the state and federal constitutions. The contention is based largely on the theory that people who have a belief, attitude or prejudice upon one issue frequently have a predictable belief, attitude or prejudice upon another. As applied here, appellant urges that selective exclusion of jurors having an attitude against capital punishment amounts to selective exclusion of jurors whose verdict would tend more toward innocence than guilt, thus resulting in a more prosecution prone jury with increased risk of conviction.
As presented, the contention has both legal and factual aspects. In its support appellant offered at the 60-1507 hearing certain testimony and exhibits upon which in an excellently prepared memorandum opinion the trial court acted as follows:
“Issue A. (1). Did the exclusion of jurors who opposed the death penalty x'esult in an unrepresentative jury on the issue of guilt and increase the risk of conviction?
“Findings of Fact:
“1. Dr. Hans Zeisel, witness for petitioner, testified that he is Professor of Law in Sociology at the University of Chicago Law School.
“2. For approximately fifteen years he has studied the jury system.
“3. He made various studies on jury attitudes toward capital punishment and authored ‘Some Data on Jury Attitudes Toward Capital Punishment.’
“4. He participated in a study in the criminal court in Chicago and in Brooklyn of actual jurors who sat on criminal trials. These results, supplemented by an analysis of data from the Gallup Poll and California Poll, were produced in the publication cited above (Petitioner’s Exhibit 13).
“5. The resxxlts of the above show, according to the witness, that the exclusion of jurors who have scruples against capital punishment results in an unrepresentative jury of the population as a whole and further increases the chances of a defendant in a criminal case to be convicted.
“6. Several other studies have been made independently (Petitioner’s Exhibits 14 through 18) with similar results.
“Conclusions of Law:
“1. Petitioner’s Exhibits 13 through 18 were taken under advisement as to their admissibility. Petitioner offers them under K. S. A. 60-460(co) as Learned Treatises.
“2. The Court finds that Exhibits 13 through 18 are not admissible on the basis that said exhibits are inadequate and unreliable to prove that a given jury would be more prone to convict a defendant if all those who opposed the death penalty because of scruples were removed. Further this testimony is speculative and conjectural.
“3. The petitioner has failed to sustain the burden of proof on this issue and the Court finds against the petitioner on the merits.”
In Witherspoon tbe petitioner made the same complaint as here, concerning which the court stated:
“He maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant’s innocence, accept the prosecution’s version of the facts, and return a verdict of gxxilt. To support this view, the petitioner refers to what he describes as ‘competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.’
“The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jxxrors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was. ... It has not been shown that this jury was biased with respect to the petitioner’s guilt.” (pp. 516-518.)
Footnote 21 of the majority opinion in Witherspoon includes the following:
“Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” (p. 523.)
In a companion case, Bumper v. North Carolina, 391 U. S. 543, 20 L. ed. 2d 797, 88 S. Ct. 1788, the jury had returned a verdict of guilty of rape with a recommendation of life imprisonment and the petitioner was sentenced accordingly. He attacked the conviction on the ground his constitutional right to an impartial jury had been violated because the prosecution was permitted to challenge for cause all prospective jurors who voiced objection to capital punishment. In rejecting this contention the court stated:
“Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant’s guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. [Citations] We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily prosecution prone,’ and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse die judgment of conviction upon this basis.” (p. 545.)
Witherspoon and Bumper footnotes reveal that those petitioners had submitted in their briefs and petitions certain surveys and studies of a sociological or psychological nature supporting their position factually. Apparently this material was the same as that contained in exhibits 13, 15, 16 and 17 in the case at bar, and sought unsuccessfully to be introduced as exhibits through the testimony of Doctor Zeisel.
The trial court in effect determined as a fact that the evidence submitted did not show appellant had been convicted by an unrepresentative jury on the issue of guilt or that its method of selection increased the risk of conviction. In this view we must concur. All the evidence proffered, including the exhibits rejected, amounted to little more than that deemed unacceptable in Wither-spoon and Bumper as tentative, fragmentary and lacking in sub stance. In fact, the sponsoring witness, although expressing confidence in the reliability of the studies when taken in connection with other data, conceded shortcomings arising from inherent limitations in the studies. At most, the entire matter seems still in the realm of scientific exploration with little in the way of reliable principles fairly demonstrable.
Closely allied with the foregoing is appellant’s complaint the trial court erroneously excluded the six exhibits proffered by him as learned treatises under K. S. A. 60-460 (cc), which provides, as an exception to the hearsay rule:
“Learned treatises. A published treatise, periodical or pamphlet on a subject of history, science or art [is admissible] to prove the truth of a matter stated therein if the judge takes judicial notice, or a witness expert in the subject testifies, that the treatise, periodical or pamphlet is a reliable authority in the subject.”
Mere publication does not ipso facto render a work admissible as independent substantive evidence. Such a work becomes admissible when a proper foundation has been laid — establishment of its reliability either by means of judicial notice being taken or die attestation of an expert witness. Necessarily, to mitigate objections to this type of evidence which might justifiably be lodged in particular circumstances, considerable judicial discretion is in order in determining what works are, and what works are not, for one reason or another, sufficiently worthy of trust to be considered as substantive evidence (see VI Wigmore on Evidence, 3d ed., § 1692; Gard’s Kansas Code of Civil Procedure, Author’s Commentary, § 60-460 [cc], pp. 498-499). We hold the determination of reliability requisite to admission into evidence of learned treatises rests in the sound discretion of the trial court.
We have already indicated concurrence in the trial court’s view of the proffered exhibits. Moreover, the substance of the content of those documents was made known to the trial court, the trier of the fact, through the oral testimony of Doctor Zeisel, so prejudicial error may in no event be predicated on the exclusion.
Appellant next contends our procedure in a capital case wherein a jury determines both guilt and punishment is unconstitutional in that it compels an accused to testify against himself and denies him due process of law. Appellant says if he desires to offer evidence in mitigation of punishment, he must do so before the same jury which determines guilt and, upon cross-examination, run the risk of bolstering the prosecution s case against him. He contends that under our single trial procedure he must either waive his constitutional privilege against self-incrimination by testifying before the jury prior to its determination of his guilt or he must forego an opportunity to explain why, if convicted, he should receive the lesser penalty. Upon this issue the trial court found that appellant’s counsel at his initial trial thought it necessary for appellant to testify in order to minimize the penalty should he be found guilty. Appellant did testify at the trial at which he was convicted (see summary, State v. Zimmer, supra, pp. 493-496).
A few states have now provided for bifurcated trials in criminal cases, one to hear evidence upon the guilt issue, and if there be a finding of guilty, another on the penalty phase. However, this is a policy matter for legislative determination.
Traditionally, in capital cases particularly, juries have determined both guilt and penalty in the same proceeding. Initially, in Kansas as in many jurisdictions, upon conviction of certain offenses, the death penalty was mandatory with no alternative permitted. Eventually, the sentencing authority was permitted to fix punishment for such offenses either at death or life imprisonment. So the role of the jury in sentencing where jury trial is had is essentially in mitigation of the practice of automatic imposition of the extreme penalty. Although not treating with constitutional impact except as may be derived under the concept of basic fairness, the Advisory Committee on Sentencing and Review for the American Bar Association Project on Minimum Standards for Criminal Justice has recognized several considerations arguing for retention of a role for the jury in cases where imposition of the death penalty is at issue. (Approved Draft, 1968, Sentencing Alternatives and Procedures, § 1.1 [c], p. 47).
We know of no constitutional right in an accused to speak to the sentencing authority corresponding to his right against self-incrimination. In any case, capital or otherwise, an accused makes a weighted decision in choosing whether he will claim this latter right. Calculated risk inheres in this kind of choice. In some instances the preference might be to testify upon only one aspect or element of the alleged offense but this has never been permitted. Compulsion for an accused to take the witness stand, whether in an effort to mitigate a possible penalty or for whatever reason, arises from his own desire to act in his advantage as he sees it— not from any coercion or burden imposed by the state. The state must first, of course, produce evidence of guilt before the accused is put to his choice. We are unable to spell out constitutional infringement in making that choice under our statutory procedure in capital cases. Courts in other jurisdictions have uniformly rejected the same contention. In Spencer v. Texas, 385 U. S. 554, 17 L. ed. 2d 606, 87 S. Ct. 648, (1967), rehearing den. 386 U. S. 969, 18 L. ed. 2d 125, 87 S. Ct. 1015, in an analogous situation the court stated:
“Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure.” (p. 568.)
Appellant contends the lack of grand jury indictment denied him due process of law and rights guaranteed by the fifth amendment to the federal constitution. Appellant was proceeded against by complaint and warrant, then was accorded preliminary examination before a magistrate at which he was held for appearance in district court, where trial was had upon information, all in conformity with our code of criminal procedure. In Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894, this court held:
“Prosecution for a capital or otherwise infamous crime in a Kansas court of competent jurisdiction by information, followed by trial, conviction, and sentence to the state penitentiary, all in conformity with the code of criminal procedure of the state of Kansas, does not deprive a citizen of the United States of his liberty in violation of, or rights guaranteed by, the provisions of either the Fourteenth or Fifth amendments to the constitution of the United States.” (Syl.)
Many authorities were cited in support of this conclusion, among them Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 S. Ct. 111. The same contention presented here was recently raised by a state prisoner in Morford v. Hocker, 394 F. 2d 169, cert. den. 392 U. S. 944, 20 L. ed. 2d 1406, 88 S. Ct. 2329, rehearing den. 393 U. S. 900, 21 L. ed. 2d 194, 89 S. Ct. 78, in which tibe court commented:
“In the landmark decision in Hurtado v. People of State of California . . . the Supreme Court rejected this contention, and that decision has been followed ever since. ... If any rule can be regarded as settled, the Hurtado rule is.” (p. 170.)
Appellant contends he was denied counsel at critical stages of the proceedings against him. He points first to the fact he was without counsel during the period December 21, 1964, to February 2, 1965. Appellant made this same contention on direct appeal where it was determined adversely to him (State v. Zimmer, supra). Rule 121 (c) of this court provides that a proceeding under 60-1507 cannot ordinarily be used as a substitute for a second appeal (205 Kan. xvm). Nothing new is presented and we see no reason to reexamine the issue. Appellant also complains he was without counsel after denial in this court of his motion for rehearing of direct appeal and the time the trial court in the postconviction proceeding appointed counsel for him. The trial court made extended findings of fact as to both periods, and concluded appellant was adequately represented by counsel at all critical stages and that in the postconviction proceedings he “had counsel furnished to him without any delay to his detriment.” Following denial of motion for rehearing in this court appellant was represented upon his certiorari application to the United States Supreme Court by an attorney furnished by the American Civil Liberties Union. The trial court’s findings are fully supported by evidence and may not be disturbed. Appellant has been represented throughout this proceeding by zealous and skillful counsel.
Appellant next contends certain items taken from his automobile and received in evidence against him were obtained as a result of an illegal seach and seizure. This issue was raised upon direct appeal and determined adversely to him on the basis he had expressly, voluntarily and intelligently consented to the initial search (State v. Zimmer, supra). Appellant would now bypass this roadblock by a showing at the 60-1507 hearing that he had, prior to the time he consented to the search, consumed a quantity of pills shown by posttrial analysis to contain methamphetamine; further, a pharmacologist testified his best judgment was, because of the consumption of a combination of alcohol and methamphetamines, appellant did not understand the natural consequences of his actions, and in fact, it was highly unlikely appellant knew the difference between right and wrong. One difficulty with appellant’s new approach is the trial court made specific findings against him on the factual issue. The court found that at the time appellant gave his consent to the vehicular search he was not under the influence of intoxicating liquor or drugs so as to be unable to comprehend intelligently the nature of the request to search and it concluded appellant was mentally capable of giving consent and did voluntarily and intelligently do so-.
By stipulation of the parties the transcript of appellant’s first trial was made a part of the evidence to be considered at the postconviction hearing. Thus the court had before it much testimony showing appellant’s activities and participation in events preceding and leading up to the giving of his consent to the search, including his heavy use of alcohol and pills, as summarized in our prior opinion. And the trial court was fully aware of the previous proceedings concerning analysis of a pill of the type consumed by appellant. He was represented at his first trial by able, conscientious counsel. Both appellant and his counsel knew of appellant’s use of pills and of appellant’s right to have an analysis of them made at public expense. As stated in our first opinion, the state’s failure to have the pill analyzed by the Kansas Bureau of Investigation was not an instance of suppression of evidence by the prosecution. And, as will be hereafter demonstrated, appellant had adequate opportunity to produce further testimony concerning the pill had he desired to do so. Certainly the additional testimony produced at the postconviction proceeding respecting the exact nature of the pills, and their effect, cannot be said to be newly discovered evidence not previously obtainable so as to warrant new trial.
Whether appellant was capable of giving voluntary, intelligent consent to a search of his vehicle is essentially a question of fact. That question has now been twice determined against him, first by implication and now expressly. The record contains sufficient evidence to support the findings made and upon appellate review they may not be disturbed.
Appellant urges suppression of evidence in two respects. Despite our prior adverse ruling on the same issue, he again presents failure of the convicting court to order analysis of a pill by the Kansas Bureau of Investigation. Once more, a postconviction proceeding cannot ordinarily be used as a substitute for a second appeal. However, the postconviction court patiently went into the facts as disclosed by the first record. In addition to that which was said in our former opinion we need only add the court found that appellant’s counsel cross-examined a prosecution witness as to his knowledge of amphetamine pills and reaction to them upon use; that counsel’s request for continuance on March 9, 1965, was based upon the premise it would require from one week to ten days to complete an analysis of the pill; that trial commenced on March 15,1965, and the parties rested on March 30, 1965; that appellant was aware of the contents of the pill in question at the time of trial. The court concluded appellant had failed to establish any prejudice by denial of a continuance, and that he had had adequate opportunity and time to produce testimony at the trial concerning the effects of the pill on the issues of sanity, degree of crime, lack of capacity to consent to search and severity of punishment. The findings are amply supported by evidence.
Appellant’s second allegation of suppression of evidence is that the prosecution was aware of three persons whose testimony would have been inconsistent with that offered by a prosecution witness, the liquor store clerk, concerning the presence of appellant and a small Negro girl in the city of Wamego on the day of the abduction. These persons were not offered as witnesses and apparently appellant’s counsel was unaware of their knowledge. Again the post-conviction court made extensive detailed findings on the issue. It reviewed statements of these three persons which had been obtained by the prosecution in pretrial investigation, along with the evidence actually offered, and it concluded, as a fact, that the statements were not inconsistent as alleged and there was no suppression or failure to disclose evidence which tended to be favorable to appellant, either on the issue of guilt or punishment. Our review results in the same conclusion.
Appellant asserts his constitutional rights were infringed when the examining magistrate, prior to preliminary examination, denied his request that he be furnished the services of a psychiatrist. The contention is that such failure deprived appellant of possible testimony regarding the presence of methamphetamine still in his system at that time. Appellant presents no cogent argument or authority for his position and we know of none. The convicting court, prior to trial, appointed a sanity commission to examine appellant and appellant produced at the trial medical witnesses on the issue of his mental condition.
Appellant contends the convicting court failed to instruct the jury adequately as to the venue of the murder charge. At most the alleged error was but an element of trial, correctable only on direct appeal (Rule 121 [c]). However, we note the first instruction given to the jury included the allegation in the information upon which the case was tried that both offenses occurred in Shawnee county, Kansas. Other instructions as to the proof required were tied into this so that the jury was adequately instructed as to venue, which, in the direct appeal, we determined was properly established in Shawnee county.
Appellant again complains the convicting court in reciting its instructions orally to the jury failed to read the non-guilty form of verdict. Appellant argues he had, on postconviction hearing, additional evidence on the subject not before presented. We have reexamined the original briefs and abstracts and find nothing new from that considered by us upon the direct appeal, hence the matter is not a proper subject for further review (Rule 121 [c]).
Appellant contends the lineup procedure at which he was identified by a key prosecution witness was so unfair as to amount to infringement of his right to due process of law. He recognizes that the Wade-Gilbert rule is not applicable because the lineup was held prior to June 12, 1967. It appears appellant was required to appear at a police lineup in Topeka on November 16,1964, at which he was required to step forward, give his name, address and occupation. At this lineup he was identified by the air force sergeant as the person he had seen with the victim in a field northwest of Topeka. It also appears that the Topeka morning newspaper of November 16 carried an article naming appellant as a suspect in the case who had been arrested. The sergeant did not testify at the postconviction hearing but at the initial trial he testified that at the time of the lineup it was possible he might have been informed that the automobile bearing the license number which he had jotted down was registered in appellant’s name. There was no indication the sergeant had seen or heard of the newspaper article prior to the lineup. On the day preceding the lineup the sergeant had, out of a group of sixteen, identified two photographs of appellant as pictures of the man he had seen in the field. The postconviction court found there was other independent, competent and substantial evidence connecting appellant with the victim and with the particular automobile in which she was seen, and concluded appellant had failed to sustain the burden of proof on the issue. The evidence amply supports the finding made.
Appellant contends the incriminating statements made by him to police were used against him in violation of basic constitutional due process requirements in view of the totality of the circumstances including his use of mefhamphetamine which causes severe mental and physical depression, the illegal search and seizure, defective pre-interrogation statement as to right to counsel and method of police interrogation. The postconviction court, after review of the entire trial transcript found:
“Findings of Fact:
“1. At the time of arrest and subsequent thereto during interrogation, petitioner was not under the influence of intoxicating liquor and/or drugs to render him incapable of comprehending the nature of the conversations or to give any statement.
“2. Petitioner was advised that he could obtain a lawyer and that he did not have to make a statement and that any statement he made could be used against him.
“3. Petitioner did have access to a lawyer on November 16, 1964, one day after his arrest.
“4. The statements made by petitioner were freely and voluntarily made.
“Conclusions of Law:
“1. Petitioner failed to sustain the burden of proof that at the time he was arrested and subsequent thereto he was incapable of making any statement or admission or comprehend the significance of the same.
“2. All statements and admissions were freely and intelligently made by petitioner and were voluntary.
“4. The questioning and interrogation of the petitioner was not conducted with any coercion, illegality or lack of 'fair play.’
“5. Petitioner has failed to sustain the burden of proof on this issue and the Court finds against petitioner on the merits.”
Much of appellant’s attack is based upon his version of disputed factual contentions, as for example, his assertion the police in their questioning deceived him in certain particulars, but such disputes have now been resolved against him. Here again the trial court’s findings and conclusions are sufficiently supported by evidence. More need not be said.
Finally, appellant contends there was jury misconduct vitiating the conviction. Such a specification amounts to no more than trial error, correctable only upon direct appeal. In Tuscano v. State, 206 Kan. 260, 478 P. 2d 213, we held:
“It is only where trial errors impinge on constitutional rights that they will be considered in a post-conviction action brought under K. S. A. 60-1507, and then only in exceptional circumstances.” (Syl. ¶ 4.)
The record reveals no such exceptional circumstances. Nonetheless viewing the matter in its entirety, we cannot say appellant did not have a fair trial. The trial court found as follows:
“Findings of Fact:
“1. The witness, Norman P. Lutterman, was a juror in the criminal case. He was the only witness from the jury.
“2. During the course of the trial he watched television news broadcasts and read newspaper articles concerning the trial while it was in progress.
“3. He knew of other jurors who did likewise as the jurors discussed what they read and had seen dining the separations.
“4. The jury discussed matters not in evidence, particularly, the fact that one juror, Boaz, knew ‘a lot about the case from Lou Falley,’ the Sheriff; that petitioner had property and railroad retirement and should not have had a court-appointed attorney; that petitioner might be able to get a parole from a life sentence.
“5. The juror, Lutterman, allowed a person to discuss the case with him outside court proceedings.
“6. The Court admonished the jury not to see, read or hear anything about the case outside of the courtroom and consider only the evidence admitted at the trial.
“7. Lutterman’s decision was based upon what he heard in the courtroom.
“8. Lutterman had given thought about changing his vote with reference to the penalty of death to that of life.
“9. Lutterman was not threatened or coerced by anyone.
“Conclusions of Law:
“1. The jury was guilty of misconduct. But the misconduct was not such as to void the verdict of guilty and grant petitioner a new trial.
“2. The matters seen, read and heard by the jury were substantially what occurred in the courtroom.
“3. The petitioner failed to prove the extent and substance of what ‘Boaz knew from Lou Falley’ and failed to sustain the burden that this statement prejudiced the petitioner in the verdict of the jury.
“4. The decision of Juror Lutterman was based upon evidence heard in the courtroom.
“5. The discussion among the jurors concerning matters set out in finding No. 4 above went to the penalty not to the question of guilt or innocence. This misconduct would not support a verdict of death; but based upon the conclusions of law and judgment made by this Court setting aside the death penalty and death sentence, this question is moot.
“6. The petitioner failed to sustain the burden of proof and this issue is decided against him on the merits.”
Although only one witness testified, the trial court’s interpretation of that evidence did not wholly correspond to that urged then and now by appellant, particularly as to the coercive aspect of events related. The province of such interpretation lay, of course, in the trial court. The evidence was such we are unable to disagree with the trial court’s analysis. We have reviewed the many cases cited by appellant. None speak out for reversal here.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a conviction of possession of marijuana as provided in K. S. A. 65-2501 (18), and 65-2502.
On June 8, 1968, Robert Ingram, an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs, along with one Max Snodgrass, an informant, went to appellant’s residence at 1145 North Volutsia, in Wichita, for the purpose of purchasing marijuana, which Snodgrass was able to' do.
On June 27, 1968, both parties returned to and entered appellant’s residence and spoke to him concerning the purchase of marijuana. The appellant stated he did not have any at that time. When asked what type of “grass” he had sold Snodgrass on June 8, the appellant replied “Mexican grass.”
On June 28, 1968, a search warrant was obtained and police detectives went to the appellant’s residence. When informed by the officers they had a warrant to search his house, the appellant’s only response was that he had quit “the stuff.” The ldtchen was searched and a brown paper sack containing marijuana in a rough stage was found on a canister set. Without revealing the contents of the sack to the appellant, a detective asked him if he knew what was in it, and the appellant replied, “[i]t must be the stuff some of my friends left.” The names of the friends were not mentioned to the detective. A further search of the kitchen resulted in some marijuana particles being found on the floor. Also, in the area where the brown paper sack containing marijuana was found, there were four empty match boxes, two packages of cigarette papers, and a cigarette roller. Those items were known to the detectives to be paraphernalia common to selling marijuana. A search of an adjacent recreation room revealed a small cardboard box between the ceiling rafters containing leaves and seeds which appeared to be marijuana. It should be noted that the match boxes found in the appellant’s kitchen were similar to the match box in which the appellant sold marijuana to Snodgrass on June 8,1968.
The appellant first contends his character was placed before the jury through the testimony of Agent Ingram in violation of K. S. A. 60-447. The testimony related to the conversation between the parties at the appellant’s residence on June 27, 1968, as follows:
“Mr. Snodgrass asked Mr. Whiters if he had any marijuana for sale. And Mr. Whiters said, no, that he didn’t. I asked Mr. Whiters if he knew anybody else who did. Mr. Whiters said that there was not much marijuana around at that time. And I told Mr. Whiters that I was with Mr. Snodgrass the last time (June 8, 1968) that he had come to the house and purchased marijuana from him. I reminded Mr. Whiters on that occasion that they had rolled the car down the driveway and that we had given it a push. And Mr. Whiters said that he remembered the occasion. And I asked Mr. Whiters if that was Mexican or local marijuana that he had sold on that occasion. And he said that — that he’d sold Mr. Snodgrass Mexican — Mexican grass is what he called it, grass for marijuana. And I told him it sure was good marijuana and I wished I could get some more. And he said that he was sorry, he was out of it. . . .”
The appellant concedes the state relied on K. S. A. 60-455 to introduce the testimony into evidence, but urges its provisions are to be read in conjunction with K. S. A. 60-447, which prohibits evidence of the defendant’s character from being introduced unless the defendant first places his character in issue. The contention cannot be sustained.
To accept the appellant’s argument would be to completely disregard the provisions of K. S. A. 60-455. That section prohibits proof of the defendant’s disposition to commit a crime as the basis for an inference that he committed another crime on a specific occasion. Where, however, such evidence is relevant to prove another issue, it is admissible. And it is admissible to prove some other material fact, including motive, intent, plan, identity or absence of mistake or accident, despite the general provision of exclusion. (State v. Jarvis, 201 Kan. 678, 681, 682, 443 P. 2d 272; State v. Fabian, 204 Kan. 237, 461 P. 2d 799.)
Thus where evidence legitimately tends to support the charge or show the intent with which committed, it is not to be excluded on the ground that it will prove another offense. (State v. Wright, 194 Kan. 271, 398 P. 2d 339.) What better way to establish the intent, plan and motive of the appellant in possessing marijuana on June 28, 1968, than to show his possession and sale on June 8, 1968, three weeks earlier!
The admission of such evidence is always subject to the discretion of the court. (K. S. A. 60-445.) In furthering the intent of 60-455, the district court instructed the jury as to the limited purpose of Agent Ingram’s testimony, as follows:
“You are instructed that evidence has been admitted in this case to show the commission of the defendant of another offense similar to that charged in the information. . . . You are instructed that you are not to consider such evidence as the basis for an inference that he committed the crime charged in this case. Such evidence may be considered by the jury for the purpose of determining the motive, opportunity, intent, preparation plan, knowledge, identity or absence of mistake or accident.”
In view of the instruction explaining the purpose for which the evidence was admitted, there was no prejudice to the appellant’s substantial rights. The district court did not err in admitting the testimony of Agent Ingram. (State v. Kowalec, 205 Kan. 57, 468 P. 2d 221; State v. Roth, 200 Kan. 677, 438 P. 2d 58.)
The appellant next contends that in his closing argument to the jury, the county attorney commented on the failure of the appellant to explain to the police at the time of his arrest the presence of marijuana in his house, and only at the trial did he attempt an explanation.
The appellant testified on his own behalf on direct examination that on the day of his arrest some of his friends had visited at his house. He did not remember all of their names, nor where they lived. He testified the sack containing marijuana had not been in his house prior to the visit of his friends, thereby inferring the friends had left the marijuana. There was no corroboration of the appellant’s testimony.
The evidence clearly establishes a willingness on the part of the appellant to give one story at the time of his arrest, and a different and more refined story at his trial. On cross-examination the county attorney had the right to inquire of, or refute, the appellant’s explanations, since no such explanations were offered at the time of arrest. Moreover, the county attorney could properly test his credibility, his integrity and character, and the appellant cannot complain because he was subjected to the same inquires as other witnesses. (State v. Wade, 206 Kan. 347, 479 P. 2d 811; State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. den. 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019.)
The primary purpose of closing argument is to enlighten the jury so it may render a correct verdict. In State v. Potts, 205 Kan. 47, 468 P. 2d 78, it was held:
“In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it in which he may use illustrations and appeal to the jury with all the power and persuasiveness which his learning, skill and experience enable him to use.” (Syl. f7.)
Misconduct of the prosecutor in closing will not always require a new trial unless such misconduct has resulted in prejudice to the extent accused is denied a fair trial. (State v. Gauger, 200 Kan. 515, 438 P. 2d 455; State v. Miller, 204 Kan. 46, 460 P. 2d 564.)
The record shows the county attorney’s closing argument was directed to facts already in evidence. His remarks were directed to the inconsistencies in the appellant’s explanation at the time of his arrest and of his testimony at the trial. We conclude they were not improper.
No error appearing, the judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The appellant George B. Smith is not a stranger to the state and federal courts. In June 1962 appellant was convicted in Sedgwick county of second degree burglary and of larceny in connection therewith. He was sentenced to life imprisonment as an habitual criminal on each of these felonies. Three prior convictions on which the enhanced penalties were assessed are shown in the journal entry. In 1932 he had been convicted in Oklahoma of robbery with firearms. In 1946 he had been convicted in Oklahoma of attempted murder. In 1955 he had been convicted in Butler county, Kansas, of second degree burglary.
After serving six years in the penitentiary he successfully prosecuted a petition for writ of habeas corpus in the federal courts. (See Smith v. Crouse, 298 F. Supp. 1029 [1968] and Smith v. Crouse, 413 F. 2d 979 [1969].) His attack upon the two life sentences was •successful because of a failure to appoint defense counsel at the Oklahoma conviction proceedings. This left only the Butler county, Kansas, conviction upon which the enhanced penalty could be assessed under K. S. A. 21-107a. (See State v. Duke, 205 Kan. 37, Syl. ¶ 3, ¶ 4, 468 P. 2d 132.)
Appellant was returned to Sedgwick county and resentenced in September 1969 as an habitual criminal with one prior conviction. He received a sentence of from ten to twenty years for burglary and a sentence of not to exceed ten years for larceny in connection therewith, these sentences to run consecutively.
This is a direct appeal from that second sentencing. Two contentions are urged on this court.
Appellant contends the trial court erred in ordering the two sentences to run consecutively. He argues the consecutive sentences are more severe than the original concurrent life sentences and arrives at this conclusion in the following manner. If he had been given correct concurrent sentences at the first sentencing (ten to twenty years and not to exceed ten years) he would have been eligible for parole in 1972. He states the consecutive sentences will destroy this right to go before the parole board in 1972. He further reasons that this right to parole is an inchoate right to a conditional release which was destroyed by the sentencing court when the sentences were made to run consecutively. To support his position he relies largely on North Carolina v. Pearce, 395 U. S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072. Appellant’s position is untenable and Pearce is not controlling.
In the first place, parole from confinement in a penal institution prior to serving all of an imposed sentence is a privilege, a matter of grace, and no constitutional right is involved. (Johnson v. Stucker, 203 Kan. 253, 257, 453 P. 2d 35; Prescher v. State, 205 Kan. 636, 639, 471 P. 2d 349.)
In the second place, when these sentences were prescribed the sentencing judge had the duty and discretion to determine whether they should be served concurrently or consecutively. (See K.S.A. 62-1512 now K.S.A. 1970 Supp. 21-4608.) The consecutive sentences for terms of years were not more severe than the two concurrent life sentences, but assuming they were, appellant’s application of Pearce is not viable. In Pearce, the high court did not apply an absolute bar to more severe sentences upon a second conviction. That court indicated if the sentence was increased there should be a showing made to justify the increased sentence and to establish that vindictiveness against the defendant played no part in the new sentence.
The record on resentencing which is before us clearly establishes a long history of criminal acts by the appellant which spanned a period of thirty-six years prior to the original sentences. The second sentences meted out by the judge were those required by K. S. A. 21-520 and 21-524 when enhanced for one prior conviction under K. S. A. 21-107a. Under these statutes which controlled the resentencing, the habitual criminal act was mandatory and controlled the actions of the district court. (Aeby v. State, 199 Kan. 123, 126, 427 P. 2d 453.)
Under the circumstances shown in the record vindictiveness against the defendant-appellant is not indicated. The consecutive sentences for terms of years were substituted for two concurrent sentences for life. The consecutive sentences were entirely proper and justified. Judicial discretion was not abused.
Appellant’s second and final contention is that despite the language of K. S. A. 21-524 it is unlawful to prescribe two consecutive sentences for burglary and for larceny in connection therewith.
K. S. A. 21-524 provides:
“If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, and on conviction of such burglary and larceny, shall be punished by confinement and hard labor, in addition to the punishment hereinbefore prescribed for the burglary, not exceeding five years.”
Appellant contends burglary and larceny in connection therewith constitute one offense because the single combined intent is to commit both crimes. He further contends imposition of two consecutive sentences violates the law against being twice punished for one offense. Appellant’s basic premise is erroneous for the intent to commit several crimes at one time does not reduce the number of separate crimes committed. The cases cited by appellant on this are not in point. They relate to the prohibition against being tried a second time after having been first acquitted of the offense, or they relate to the prohibition this court has applied against the use of separate crimes to further enhance the penalty provided in K. S. A. 21-107a when the sentences are meted out at one hearing. (See State v. Murray, 200 Kan. 526, 437 P. 2d 816.)
The statutes K. S. A. 21-520 and 21-524 clearly define separate and distinct offenses. In our reported cases we have consistently treated them as separate offenses. Separate sentences for these separate crimes have been approved by this court and they have been made to run consecutively. (Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837; State v. Baker, 197 Kan. 660, 421 P. 2d 16.) We see nothing which should prohibit consecutive sentences in the present case.
Many of appellant’s arguments were fully considered by this court and rejected in State v. Fountaine, 199 Kan. 434, 430 P. 2d 235. We incorporate by- reference what was said in Fountaine. There is nothing to be gained here by iterating what was said in that opinion.
Judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff, U. T. Gaba, delivered to the defendant railroad company, at Baxter Springs, a lot of porch columns and composition caps consigned to a contractor at Oklahoma City. The agent of the company was informed that the materials were to be furnished by Mr. Gaba for use in a building which was being constructed under a time contract, with a penalty for delay, and prompt shipment was promised by the ■agent. The columns were sent forward at once, and were received by the contractor within three days. The caps, although included in the same bill of lading, were not delivered in Oklahoma City until thirty-one days afterward, having by mistake been taken to Texas. The company was promptly notified of the shortage, and the plaintiff made diligent efforts to find the property, at an expense to him of $26. In making settlement with the contractor the owner deducted over $300 as damages for delay beyond the time agreed upon for completion of the building, caused by this delay in the transportation of the caps; and the contractor deducted $300 from the bill of the plaintiff, the subcontractor, in accordance with the agreement of the latter, in which he stipulated to pay $10 per day for each day’s delay in the construction of the building caused by his failure to ■deliver the caps promptly. The plaintiff sued to recover his damages from the company, and upon a trial without a jury recovered a judgment for $300. The company alleges error in the rulings upon evidence, and in the measure of damages allowed.
After the plaintiff had testified to his agreement to pay $10 per day for any delay in constructing the building caused by his failure to deliver the materials it was shown that the agreement was in writing, in the possession of the contractor in Oklahoma, and the defendant moved to strike out the parol testimony of its contents. This motion was allowed, but the defend ant by cross-examination of the witness elicited the same testimony, as the following excerpt will show:
“Ques. When was it you made that contract with Mr. Lee to furnish these things for the house he was building for Mr. Turner ? Ans. I don’t just remember the time. I made a good many trips there. If I remember right it was about the first of April.
“Q. How long was you to have to furnish these columns and compo caps? A. There was no designated time in the contract. I was not to delay him in the contract at ail. Any delay I made Mr. Lee in his time contract I was to pay $10 per day.
“Q. Was that in this contract? A. Yes, sir. •
“Q. Did you have a copy of it? A. No, sir.
“Q. You gave it to Mr. Lee and never kept a copy of it? A. Yes, sir.
“Q. That is about the language of that written contract you believe? A. Yes, sir; something on that, order.
“Q. There, was no time mentioned in which you was, to.furnish the columns and compo caps? A. .No, sir; not in mine. The time was stated in his contract, but, not in mine.”
After this testimony had been given the plaintiff, oil redirect examination, .was permitted over .the defendant’s objection to testify as follows:
“.Ques. Mr-. Gaba, what was. your contract- with Mr.. Lee as to. forfeiture or penalty, if there was any, if you should delay him on that building ? Ans. I had a time-contract withi Mr. Lee for $10 a day.
“Q. What do you.mean by that? A. If I caused him any delay in the building of the building-1 was'to -stand, a forfeiture of $10 a day.”
Motions were duly'made to strike out this testimony,', which were denied. The defendant was not prejudiced by these rulings, since the contents of the written instrument were already in evidence through the defendant’s cross-examination. Having restored the incompetent testimony to the record by its own action, the repetition, 'although unnecessary, was harmless. '
■It is argued that the provision' to pay a certain sum- per day for the delay referred to was in the nature of a penalty and the amount ought not to have been allowed without proof of the actual damages sustained. As it appeared that the subcontractor actually paid this amount by deduction from his bill, and that the contractor sustained a corresponding loss in his settlement with the owner, the real contention seems to be that proof of actual damages to the owner should have been given before any recovery was allowed to the plaintiff. A delay of thirty days beyond the reasonable time for transportation is not disputed. The settlement of damages caused by this delay in the completion of the building consequent upon the delay in transportation is. shown by the evidence. Thus an antual loss to the plaintiff is proved. It was not necessary for him to go further and prove-by other evidence that the contractor rightfully insisted upon the terms of the agreement and that the actual damages to the owner were equal to the amount allowed. Having offered evidence of the agreement, the notice to the company, the default of the latter, the delay in the completion of the building resulting therefrom, and the payment to the contractor, the burden was upon the defendant to show bad faith, if any existed, or that the damages were excessive, since the transactions of men in the usual course of business and in the execution of their contracts are presumed to be honest until the contrary appears. (Guetzkow Brothers Co. v. A. H. Andrews & Co., 92 Wis. 214, 66 N. W. 119, 52 L. R. A. 209, 53 Am. St. Rep. 909; Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890.)
Damages are allowed as compensation which the law affords to persons whose rights have been invaded; actual damages are for actual losses. The amount of such losses may, however, sometimes be anticipated, and the extent of a possible future loss, to be paid in the event of a breach of contract, may be agreed upon in advance, where there is difficulty in determining the .extent of the loss and the resulting damages are uncertain, if the amount fixed is reasonable. This principle is often applied to contracts for building, and when the sum named is not excessive it is generally-held to be liquidated damages and not a penalty. (Railroad v. Cabinet Co., 104 Tenn. 568, 58 S. W. 303, 50 L. R. A. 729, 78 Am. St. Rep. 933; Monmouth Park Asso. v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626; Hennessy v. Metzger, 152 Ill. 505, 38 N. E. 1058, 43 Am. St. Rep. 267; Hall v. Crowley, 87 Mass. 304, 81 Am. Dec. 745.) The use of the words “penalty,” “forfeiture” and “liquidated damages” in such contracts is not controlling, although due weight should be given to such expressions, in connection with other parts of the agreement, the subject-matter, and the other facts and circumstances. (Degraff, Vrieling & Co. v. Wickham, 89 Iowa, 720, 52. N. W. 503, 57 N. W. 420; Jaquith v. Hudson, 5 Mich. 123.) This view does not conflict with those expressed in Condon v. Kemper, 47 Kan. 126, 27 Pac. 829, 13 L. R. A. 671, and is in harmony with the opinion in Davidson v. Hughes, 76 Kan. 247, 91 Pac. 913.
The plaintiff, having complied with his agreement :and paid the stipulated damages, as we must presume in good faith, could properly look to the company to make up the loss, the company having been notified of the use to be made of the goods and the consequences of delay in shipment. If such notice had not been given a different measure of damages would have been applicable. (Railroad v. Cabinet Co., 104 Tenn. 568, 78 Am. St. Rep. 933, 58 S. W. 303, 50 L. R. A. 729.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On July 21, 1906, a petition was presented to the county superintendent of public instruction of Ness county for the sale of a tract of school-land, described as follows: The northeast quarter of the southeast quarter, the north hálf of the south half of the southeast quarter, the north half of the south half of the southwest quarter, and the northwest quarter of the southwest quarter of section 36, in township 18, range 26 west of the sixth principal meridian. Appraisers were appointed, and the land was appraised at $3.50 an acre. Within sixty days John H. Hornung filed in the probate court a petition as a settler, asking that he be allowed to purchase the land, and setting out the usual averments. On October 1, 1906, the probate court heard the petition and found that its allegations were true, and that Hornung was entitled to take the land at its appraised value. He thereupon paid one-tenth of the purchase-price to the county treasurer and received a certificate of purchase from the county clerk, which he afterward assigned to J. C. Hopper. On October 8, 1907, Hopper paid the remainder of the purchase-price and received a certificate from the county clerk showing such payment. Thereafter he asked the auditor of state to indorse upon this certificate a statement that the county treasurer had been charged with the amount therein named, this being a necessary preliminary to the procuring of a patent from the governor. (Gen. Stat. 1901, § 6355.) The auditor refused to make the indorsement, and Hopper applied to this court for a writ of mandamus to compel him to do so. The attorney-general intervenes in behalf of the state and supports the auditor in his refusal. The case is submitted upon agreed facts.
The first ground upon which the auditor challenges the right of the plaintiff to a patent — for that is what the controversy amounts to — is that the entire proceedings relative to the sale of the land are void because the law only authorizes school-land to be sold in regular forty-acre tracts, while the premises here involved are laid out in irregular shape, involving the cutting in two of four of such tracts, as shown by the description already given. The statute (Gen. Stat. 1901, § 6339) provides that as a preliminary to the sale of school-land each “legal subdivision” thereof shall be separately appraised. The phrase quoted has a definite meaning, which attached to it long before the passage of the act cited. It applies only to the divisions of land which result from the application of the ordinary methods used in the making of a government survey, the smallest of these being the forty-acre square, or quarter quarter-section, except where by reason of special conditions lots of more or less irregular shape are laid out, as in the case of fractional sections. Thus, in Robinson v. Forrest, 29 Cal. 317, in interpreting the federal statute (2 U. S. Comp. Stat. 1901, § 2481) granting swamp lands to certain states, the grant covering all “legal subdivisions” the greater part of which was unfit for cultivation, the court said:
“The third section amounts in some respects to a limitation upon the general terms of the first section, and constitutes a more accurate designation of the lands granted. The legal subdivisions mentioned are the subdivisions made under the authority of congress alone. The smallest subdivisons, under the congressional system, are quarter quarter-sections, .or forty-acre lots, unless a fractional quarter-section is subdivided, when the subdivisions may be smaller than forty-acre lots, and different in their general form. It is to these smallest subdivisions that reference is made in section 8, and if the greater part of any such subdivision is wet and unfit for cultivation it vests in the state. This is the obvious meaning of the term ‘legal subdivisions,’ as employed in that section, and this construction is given to it by the department of the interior, as appears by the rules and instructions issued soon after the passage of the act, as well as at a late date.” (Page 323.)
(See, also, Brown’s Lessee v. Clements et al., 44 U. S. 650, 668, 11 L. Ed. 767; William K. Lente v. Brent L. Clarke, Adm’x, 22 Fla. 515, 525, 1 South. 149; Fredericks v. Zumwalt, 134 Cal. 44, 66 Pac. 38; 26 A. & E. Encycl. of L. 346; 1 Lester Land Laws, Regulations and Divisions, 544.)
The school-land law does not in terms forbid the further division of a “government forty,” but it does specifically provide that “timber land may be subdivided into lots of such size as the’superintendent of public instruction and appraisers may deem best.” (Gen. Stat. 1901, § 6346.) This provision distinctly implies that as a rule school-land is not capable of indefinite subdivision; that as to prairie land there is a fixed limit, which must be sought in the context. Such limit can be found only in the use of the term “legal subdi vision,” and in its interpretation as the smallest subdivision under the congressional system of surveying.
But it is suggested in behalf of the plaintiff that, even conceding that prairie' land can not be sold in twenty-acre tracts, the decision of the probate court was an adjudication that Hornung was entitled to purchase the land and implied a finding of all facts, essential thereto, including a determination that the tract in question was timber land and that it had been subdivided into twenty-acre lots by the action of the county superintendent and the appraisers. The statute, however, clearly defines the scope of the probate court’s inquiry and the effect of its decision, in these words:
“Said court shall require the petitioner to prove the facts set forth in his petition.” (Gen. Stat. 1901, § 6345.)
“In all cases where the court shall find that the petitioner has settled upon and improved school-lands, as set forth in his petition, the petitioner may purchase the said lands, not exceeding one quarter-section, for the appraised value thereof, exclusive of the value of the improvements.” (Gen. Stat. 1901, § 6346.)
The allegations of the petition are required to be:
“That he has settled upon said land and has resided thereon continuously for a period of not less than six months immediately prior to said appraisement; that he has permanently improved said land to the amount of one hundred dollars; that said improvements consist of a permanent dwelling, and such other improvements as show an intention to make a permanent home thereon; that said land has been appraised, and the amount thereof; that said improvements have been appraised, and the amount thereof; that he has not heretofore taken school-land to the amount of one quarter-section under the provisions of this act, or of the act of which this is amendatory; that he has given ten days’ public notice through a newspaper of general circulation in the county where said land is situated, •setting forth in such notice a description of the land, the names and residences of two witnesses by whom he expects to prove said settlement and improvements; the time when (the time to be fixed by the probate judge) said petition will be heard by the probate court, and asking that he be allowed to purchase said land.” (Gen. Stat. 1901, § 6341.)
The right of the petitioner to purchase the land follows from the court’s finding of fact that his petition is true. The only allegation of the petition that might be deemed to relate in any way to the character of the land is that in reference to its appraisement. There is some plausibility in the contention that a finding that the land had been appraised implied that it had been legally appraised, and therefore that it had been lawfully subdivided into the tracts to which the appraisement was applied. The subdivision and the appraisement, however, are separate and distinct actions, performed by different bodies. The appraisement is made by three appraisers, appointed by the superintendent, with the consent of the county commissioners. The subdivision is made by the superintendent and the appraisers. The petition is required to allege the appraisement, but not the subdivision. The statute creates an independent tribunal, composed of the superintendent and the appraisers, which alone can under certain circumstances give authority for the sale of school-land in lots of less than forty acres. It is incumbent upon one asserting a right dependent upon such a grant to allege and prove it. There being no showing here of that character, the plaintiff has failed to establish a legal purchase of the land, and for that reason is not entitled to compel the auditor to aid him in procuring a patent. If it were shown that the superintendent and appraisers had given the tract the form in which the plaintiff claims it, doubtless no question could now be raised whether it was in fact timber land. That is a matter intrusted to the decision of the special tribunal, and its conclusion, in the absence of fraud, must be regarded as final and not subject to review, in the probate court or elsewhere.
Another consideration is fatal to the plaintiff’s claim. In January, 1904, a school-land lease to the firm of Smith & Peckham, expiring January 1, 1909, was duly executed, which included the tract already described-.. On December 30, 1905, the lessees, for a valuable consideration, surrendered possession of this tract to Hornung, who thereupon made the settlement under which the plaintiff claims. On January 1, 1906, they paid the rent in full on all the land up to the time of the-expiration of the lease, and filed with the county clerk, a statement by one of the members of the firm that he-relinquished his claims to the tract here involved. The-clerk then wrote upon his record of school-land leases-the description of this tract, and these words: “Lease-paid in full Jan. 1, 1906, $12.50, and settled on.”
When school-land is leased it may still be sold subject to the lease, for the statute distinctly so provides,, but it is necessarily withdrawn from settlement. Inasmuch as the lessee has the exclusive right of possession, obviously no one over his objection can lawfully establish a residence thereon. And certainly the legislature never intended that a school-land lease should, give its possessor the power to sell to whomsoever he may see fit what is in effect a preemption — a right to-purchase the land at its appraised value in preference to all others. This power he has if he can terminate the-lease at any' time by his own act. Since the tenant’s, rights may be forfeited for non-payment of rent upon due notice, it may well be that a lease can be annulled by agreement between the county board and the lessee.. In such case the commissioners could give equal opportunity to prospective settlers by insisting upon the date-of expiration being fixed in the future. In the present case there is no suggestion of an agreement by the county commissioners to a termination of the lease. The entry made upon the record by the county clerk, even if he had the power to bind the state, does not purport to be an acceptance of the lessee’s relinquish ment. .The lessee may at his own pleasure waive or abandon his own rights, but he can not alone set aside the contract; he can not alone convert leased land into unleased land — land that is not open to settlement into land that is open for settlement.
The plaintiff’s counsel contend that prior decisions of this court establish a contrary doctrine, and cite Schwab v. Wilson, 72 Kan. 617, 84 Pac. 123, as being squarely in point. The opinion in that case shows what was there considered and determined, namely, (1) that the pendency in this court of an application for mandamus to compel an appraisement preliminary to a sale of school-land did not deprive the district court of .jurisdiction to enjoin its sale under other proceedings, and (2) that one who has settled upon school-land in order to'purchase it has such an interest with respect thereto that he may enjoin its unlawful sale. The facts as disclosed by the record bore some resemblance to those here presented, but were sufficiently dissimilar so that a distinction might readily be made. We prefer, however, not to undertake a detailed statement of the resemblances and differences, for the reason that in Schwab v. Wilson the question here involved was not argued, considered or decided, and therefore that case should not be regarded as an authority upon it. The case of Davies v. Benedict, 75 Kan. 47, 88 Pac. 536, is also relied upon by the plaintiff. But all that was there decided was that one who enters upon school-land while a lease is in force does not by that act incur a disability to claim rights as a settler in virtue of his being upon the premises after the lease has expired.
It is argued that the acceptance of the purchase-price by the county treasurer imposes the obligation upon the state to issue a patent, upon the principle that the transaction is one of a business character, in which the conduct of the state must be subject to the same rules as that of an individual, and that it can not retain both the land and the money. Among other cases on this proposition counsel especially rely upon Ambrose v. Huntington, 34 Ore. 484, 56 Pac. 513 (cited in 26 A. & E. Encycl. of L., 364), wherein the court said:
“It may be observed, in passing, that the county school superintendent was not the agent of the state, with power to execute a deed to its school-lands; but, as he had contracted to convey the same, and the state had received, accepted and retained the purchase-price, it thereby became bound to the observance of his contracts regarding the land, as it operated as a ratification of his acts in the premises (Mechem, Agency, §§ 148, 149), so that there was substantially a contract on the part of the state with plaintiff to convey to him the premises in dispute.” (Page 488.)
The opinion does not indicate through what agency or by the act of what officer the state was deemed to have accepted the purchase-money and thereby to have ratified the sale. A county treasurer who accepts the payment of money from one who buys school-land at an unlawful sale acts without authority. His action in accepting and retaining the money is not that of the state, and does not estop the state to repudiate the' stale.
In State, ex rel., v. Dennis, 39 Kan. 509, 18 Pac. 723, it was held that where the state seeks the aid of a court to set aside a sale of school-land on the ground of illegality it must tender back the purchase-money, but the decision was distinctly based upon the consideration that the state voluntarily came into court asking affirmative relief. Here the state is not the moving party; it is resisting the demand for a patent by one who is not entitled to it. Although his money has been accepted by a county officer assuming to act in behalf of the state, the state is not precluded from questioning his right by the fact that no machinery has as yet been provided by which a return of the purchase-price may be had.
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The opinion of the court was delivered by
Graves, J.:
The railway company contends that, since it has at great expense complied with the act of congress by placing upon its cars couplers which couple automatically by impact, thereby enabling its employees to couple and uncouple cars without encountering the danger of going between them, it should not be held liable for injuries sustained by an employee who voluntarily and unnecessarily goes between the cars to do the coupling instead of using the safe method which has been provided for that purpose, as the deceased did in this case.
The defendant in error contends that, notwithstanding the safe coupling appliances furnished, it is more expeditious and convenient to make a flying switch, such as was being made by the deceased, when a brakeman is on the brake-beam between the cars, as the deceased was located; and for this reason it had long been the custom among the employees of the defendant railway company to make couplings in that manner. It is further contended that this custom was known to, and acquiesced in by, the company, and it encouraged such practice by placing iron handholds on its cars so as to make it more convenient to handle the cars in that manner than by the use of the safer appliance. It is urged that the acquiescence of the defendant in this custom has been such that employees were justified in regarding it as an approved method of doing such work, and the railroad company thereby became bound to keep its cars supplied with appliances suitable for such practice, and a failure to do so was negligence. Upon this theory it is insisted that' the failure to have the car in question furnished with a strong, sound slat, sufficient to sustain the deceased while making the coupling, was negligence.
Other matters are discussed, but the foregoing statement presents the real questions involved in the controversy, and none other need be considered.
The deceased in this case was not directed to couple and uncouple cars by any particular method. The car which he was required to couple, on the occasion when he received the injury of which complaint is made, was furnished with an automatic coupler, as provided by act of congress. It was designed to protect brakemen from the very danger which the deceased encountered and in which he lost his life. He used the brake-beam method, not because it was the only or the best means at hand, nor because directed by his master to do the work in that manner; but he adopted it with full knowledge of the danger involved, because it was more convenient for him than the safe way required by law and provided for by the railway company. It is not claimed that the company or its officers directed or advised its employees to make flying switches in this manner; they did it voluntarily and of their own choice.
We are unable to attach much importance to the alleged knowledge and acquiescence of the company. The most that can- be said of it is that some of the company’s officers knew that such switches were being made and the practice was not prohibited. It is not claimed that the company directed, advised or in any affirmative manner approved of this method of coupling cars. It was simply known' and tolerated. The employees adopted this method of their own choice, when it suited their convenience. In the view we have taken of the facts the case must be decided upon the particular transaction, and the long usage or custom of the employees in making couplings or flying switches at other times and under other circumstances can not be regarded as controlling. The deceased undertook to handle a car which was provided with a coupler by the use of which he could, with some inconvenience, perform his duty with absolute safety. He declined to use the safe manner, and of his own choice adopted a method which was known by him to be extremely dangerous — a method where under the most favorable conditions the least slip or misstep would almost certainly result in death. This was a clear violation of duty and prudencé. The presence of the automatic coupler on that car was equivalent to a direction from the company to use it. These safety appliances are provided with the expectation that they will be used. The humane and beneficent considerations which prompted the enactment of this law can not be realized unless its provisions are observed and complied with by both employer and employee. The duty to provide these appliances, and the duty to use them when provided, are reciprocal,- and a failure to perform this duty by either party is negligence. It has been held that when a railroad company in compliance with the safety appliance act furnishes its employees with the required appliance it becomes their duty to use it, and a failure to do so will bar a recovery for injuries which would have been avoided by such use. (Gilbert v. Burlington, C. R. & N. Ry. Co., 128 Fed. 529, 63 C. C. A. 27.) In the case cited it was said:
“It is so dangerous for the employees of railroad companies to go between the ends pf cars to couple or to uncouple them that congress passed an act on March 2, 1893, which made it the duty of common carriers to equip all their cars engaged in moving interstate traffic with couplers which can be uncoupled ‘without the necessity of men going between the ends of the cars’ (27 Stat. 531, c. 196, 3 U. S. Comp. St. p. 3174), and the legislatures of many of the states have enacted laws of a similar nature to regulate carriers within their respective borders. In this way the duty was imposed upon common carriers by the law to so equip their cars that they could be uncoupled without requiring their servants to go between the ends of the cars. The devolution of this duty upon the carriers necessarily imposed upon their servants the correlative duty of using the equipment thus furnished to them, and of refraining from going between the ends of the cars to couple or uncouple them unless compelled to do so by necessity. Under this legislation the breach of either of these duties became a failure to exercise ordinary care, and constituted actionable negligence. The two cars which the plaintiff sought to uncouple were supplied with mechanical devices for separating them without requiring the employees of t'he railroad company to go between the ends of the cars. These devices were not defective in construction or repair. There were two of them, either one of which could ordinarily enable the servant to uncouple the two cars. One of them had its lever on the east side of the train, where the plaintiff was at work, and could be operated from that station. The other had its lever upon the west side of the train, and could be utilized only from that side. The plaintiff first endeavored to uncouple the cars by the use of the device on the east side of the train, while the string of cars was stationary. When the train was drawn tight, so that there was no slack between the cars, or, as the witnesses expressed it, ‘when the slack was tight/ the cars could not be uncoupled, either with or without the use of the levers. When the plaintiff first attempted to separate the cars the slack was tight, and consequently he could not pull the pin by the use of the lever. The engine then pushed the cars to the south, and as they moved along the plaintiff attempted several times to pull the pin by means of the lever upon which he still kept his hand, and failed. He then stepped in between, the ends of the cars while they were moving at the rate of between two and three miles* an hour, and tried to uncouple them by seizing the chain above the pin with his hands and raising them. The act of placing himself between the ends of the cars to uncouple them without first endeavoring to do so by the use of the lever on the opposite side was an act of negligence, because the use of that lever was a less dangerous method of separating the cars. Where there is a comparatively safe and a more dangerous way known to a servant by means of which he may discharge his duty, it is a want of ordinary care for him to select and use the more dangerous method. Morris v. Duluth S. S. & A. Ry. Co., 108 Fed. 747, 749, 47 C. C. A. 661, 664; Gowen v. Harley, 56 Fed. 973, 983, 6 C. C. A. 190, 200; Coal Co. v. Reid, 85 Fed. 914, 29 C. C. A. 475; McCain v. Railroad Co., 76 Fed. 125, 126, 22 C. C. A. 99, 101; Russell v. Tillotson, 140 Mass. 201, 4 N. E. 231; Gleason v. Railway Co., 73 Fed. 647, 19 C. C. A. 636; Cunningham v. Railway Co. (C. C.), 17 Fed. 882; English v. Railway Co. (C. C.), 24 Fed. 906. Not only this, but if the plaintiff had adopted the less dangerous method, if he had proceeded to the other side of the train and had uncoupled the cars by the use of the west lever, he would not have walked in the space between the rails where his foot was caught, and he would not have been injured. Even if he had first vainly tried to operate that lever, he would not have walked over the space where he was hurt, and he would have escaped injury. So that there seems to be no escape for a reasonable man, who considers impartially these facts, from the conclusion that the plaintiff was guilty of negligence in refusing to use the lever on the west side of the train and in entering and walking between the moving cars for the purpose of uncoupling them, nor from the conclusion that this negligence directly contributed to his injury.
“Counsel for the plaintiff, however, ably and persuasively urge several reasons why, in their opinion, the negligence off the plaintiff was not fatal to his recovery hére. They call attention to the testimony of several witnesses to the effect that it was the custom or habit of the servants of the company to ignore the lever •on the opposite side of the train, and to step in between the cars when they were moving, and uncouple them with their hands, when the lever on their side of the train would not produce this effect, and they insist that it was not negligence for the plaintiff to follow the ordinary course pursued by his associate operators in cases of this character. But ‘if a man exposes himself to a risk Unnecessarily he is guilty of negligence, although it be shown that other persons have done the •same thing and escaped unhurt. The inherent quality of an act is not changed, whether done by one or many.’ Dawson v. Chicago, R. I. & P. R. Co., 114 Fed. 870, 882, 52 C. C. A. 286, 288. The danger of entering and walking between the moving cars was so imminent and •obvious that no custom to do so unnecessarily could ■deprive the act of its inherently negligent character.” (Page 533.)
It is a well-established rule of law that where two methods of procedure are open to an employee, one safe and the other dangerous, he must take the safe way, even though inconvenient, or he will be barred from a recovery. (Quirouet v. Ala. Great So. R. Co., 111 Ga. 315, 36 S. E. 599.) In that case the court said:
“When an employee has his choice of two ways in which to perform a duty, the one safe, though inconvenient, and the other dangerous, he is bound to select the safe method, and if, instead of so doing, he elects to pursue the dangerous way, and is in consequence injured, he is guilty of such negligence as will bar an action for damages against the master. The principie here announced is recognized law in the state of Alabama.” (Syllabus.)
In the case of Carrier v. Railway Co., 61 Kan. 447, 59 Pac. 1075, the syllabus reads:
“if the plaintiff voluntarily and knowingly adopted an unsafe, instead of a safe, way of doing the work mentioned, and thereby received injuries, he can not recover therefor.”
The conduct of the deceased as shown in this case was grossly negligent. He might have done this work safely. He chose to adopt a recklessly dangerous method of performance. The railway company was in no way responsible for the fatal consequences, and should not be held liable therefor. The mere fact that some of its officers knew that at other times and under other circumstances its employees had used the same method, and such method had neither been approved nor prohibited by the company, does not affect its liability.
The judgment of the district court is reversed, with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Benson, J.:
The defendant claims that the findings are not supported by the evidence. There was abundant evidence that the wheat was ripe and falling down when defendant commenced to cut it. The defendant testified that he took possession and cut it for the bank as well as to secure his own interest. The justice before whom the case was first tried testified that Thorpe swore that he took it under his lien, and the plaintiff’s attorney testified that the defendant said he took it under the lease, but he also testified that he knew that the defendant had set up both claims in his answer, which was not withdrawn. In the light of this evidence, and the finding that the president of the bank cautioned the defendant to protect its interest in the wheat, it is difficult to discover any warrant for finding that the defendant intended wrongfully to convert the wheat to his own use. It is also difficult to see how the finding that he did not harvest the wheat for the bank as well as for himself is supported. His statement that the quantity sold was insufficient to cover the expenses appeared to be- true, and no further disposition of the wheat was made until after the action was brought. The plaintiff might have proceeded to market the remainder of the wheat and take out his interest, and this we must presume was his purpose when he exacted from the defendant the promise to let the rest of it alone; or he might have allowed the defendant to complete the marketing, and then demanded an accounting; but, instead of doing either, he sued for conversion^.
The findings challenge a careful scrutiny of the instructions to ascertain if there was any error that would lead the . jury to find as they did. The, court fairly instructed the jury, upon the right of the defendant to harvest the wheat, giving in substance the following instruction requested .by the defendant; excepting, however, the words in italics:
. “If you find from the evidence that..at .the time he entered and, had the. wheat, cut he was acting in the interest of, and for and! on behalf of, the. bank, as. well as for himself,' and that the hank deemed itself insecure, then his actions were rightful under the chattel mortgage, and the plaintiff can not recover in this action and your' verdict should be for the defendant. In determining this last question it is wholly immaterial tvhethoT the bank had good cause to deem itself insecure or not.”
The proposition so refused was a correct statement of the law. (Werner v. Bergman, 28 Kan. 60, 42 Am. Rep. 152.) The mortgage contained the following clause:
“In case . . . the party of the second part shall deem itself insecure, then and thenceforth it shall be lawful for the said party of the second part, or its authorized agent, to enter upon the premises of the said party of the first part, or any other place or places wherein the said goods and chattels aforesaid may be, to remove- and dispose of the same, and all the equity of redemption .of the said party of the first part, at public auction or private sale.”
■Under this clause the defendant had the right to-take possession if the proper officers deemed the bank insecure, and whether they had just cause for such belief was not an issue to be tried. • - ■
-In the cross-examination of the defendant he- was. asked whether he had proceeded to advertise the wheat for sale by written or-printed handbills. -An objection to this question, was overruled, and the defendant answered that he -had not. This was an erroneous 'ruling. No demand had been made for such proceedings (Gen-. Stat. 1901, §4253), and the mortgagor had consented to a private sale by provision in the mortgage. .The-finding of the jury that the defendant did not act in good faith in harvesting the wheat may have been, and. probably was, influenced by this admission. The ruling of the court would naturally lead the jury to suppose that the failure to advertise was evidence of a -wrongful purpose. In this erroneous.rulihg,.in connection -with the failure to 'give- the instruction referred to, may perhaps be found the .reason why the jury'found, apparently against the evidence, that, the defendant. in. harvesting this- wheat intended thereby to convert it. to his own use, in violation of the plaintiff’s rights, and not for the protection of the bank or to protect his. own interests as landlord. Errors riot prejudicial to the rights of the defendant should be disregarded', but the reasonable inference from'the'findi(ngs,'-in view of. the fact that there was little if any evidence to support-them, is that the jury were misled thereby.
The judgment is reversed, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
The defendants in error filed a motion to dismiss on the ground that more than ten days elapsed from the time the court. instructed the jury to return a verdict until the .allowance of the order extending the time to make and serve a case-made. It is said that a request for an instructed verdict, like a demurrer to evidence, presents a question of law only, and hence no motion for a new trial is necessary, and, if one be made, it can not, extend the time within which the court or judge may grant an order extending the time to make and serve a case-made. However logical the argument may be, it ignores the express provision of the statute. (Civ. Code, § 306; Darling v. Railway Co., 76 Kan. 893, 94 Pac. 202.) The motion is denied.
■ Two errors are assigned as cause for reversal, but there is practically but one question presented, viz., the instruction to return a verdict for the plaintiffs and the denial of the motion for a new trial on this ground.
The evidence as to the authority of the agent to make the alleged contract is the only issue presented by the pleadings upon which evidence was offered. As to this issue the evidence was conflicting, and an instructed verdict thereon was unwarranted. The second defense — that the writing, called a contract, was obtained by fraud — was not supported by any evidence, and hence as to this def ense the instruction was proper.
Although no facts were pleaded in the petition or reply to justify so doing, the plaintiffs introduced evidence tending to show that the defendant was estopped from denying the authority of the agent or the validity of the contract. To the introduction of this evidence no objection appears to have been offered. Under the authority of McCreary v. Parsons, Executrix, 31 Kan. 447, 2 Pac. 570, and Fiedler v. Motz, 42 Kan. 519, 22 Pac. 561, the issues will be considered as enlarged by consent of parties, and the objection, made for the first time in the motion for a new trial, as too late.
On the other hand, the writing sued bn does not,' on its face, purport to have been signed by Hibbard, as agent for the defendant, but appears to have been signed by both the defendant and Hibbard, as parties. Hibbard is not named in the petition as defendant’s agent, nor was he mentioned in any of the letters from plaintiffs to defendant, except in their reply to defendant’s letter, in which he told them there was a misunderstanding about the matter, giving the reasons for his delay in answering their letters, and informing them that he held the goods subject to their order. There is no evidence that the defendant sold or offered to sell any of the goods or in any way treated them as his own.
It'is trite law that where one, without authority, assumes to act as the agent of another in making a contract, the principal must repudiate the transaction within a reasonable time after all the material facts in regard thereto have come to his knowledge or he will be presumed to have ratified the contract. It is also a well-recognized rule that the question as to what constitutes such reasonable time under the particular circumstances, and under proper instructions, is one of fact for the jury, and not of law for the court. (2 Kent’s Com. *616; 1 A. & E. Encycl. of La. 1203.) Had Hibbard correctly reported the transaction to his em ployer a jury might well hold the defendant to greater promptness than if they believed he did not do so. The testimony of the defendant as to when he discovered, as he claims, that the transaction was not as reported to him by Hibbard does not seem entirely consistent. He says he saw the contract when the box of goods was opened, about the last of January, but does not say whether he read it. Again he says he wrote the letter to plaintiffs, dated April 18, when he learned the contract was different than his clerk reported it — not just as soon as he learned of it. The weight of this evidence and what it proves is for the jury, not the court, to determine.
We can not ágree with counsel for'plaintiffs that the letter of April 18, in view of all the circumstances of the case,' ratified either the agency of Hibbard or the contract. The case should have been submitted' to the jury, under proper instructions.
The' judgment is reversed and the case remanded, with instructions to grant a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Electa W. Hill brought this suit against W. P. Croasdale to recover on a promissory note for $745 and to foreclose a mortgage which had been given to secure its payment. The note and mortgage were executed by H. M. .Brady, a former owner of the mortgaged land, and Croasdale acquired the land under a deed containing the usual covenants that the land was clear of encumbrances except a mortgage, which was described, “and the unpaid balance of a second mortgage of $745,” which Croasdale agreed to pay, and that is the mortgage in controversy. The only dispute between the parties is as to the amount due on the note and this second mortgage. A number of partial payments had been made and Croasdale claimed that the mortgage debt remaining unpaid was only $269, and this amount he tendered, while the plaintiff claimed judgment for a larger amount. The court awarded judgment against Croasdale for $439.70, and of that ruling he complains. He insists that the record of the mortgage, upon which he had a right to rely when he purchased the land, did not disclose a lien for the amount that was awarded by the court, and, further, that a statement made by F. C. Newman, president of the bank in which the note was held for collection, estopped plaintiff from claiming that amount. The following is a copy of the note and the indorsements thereon:
“$745. Emporia, Kan., March 30, 1903.
“For value received I promise to pay to Francis S. Hill, or order, at the Citizens Bank, of Emporia, Kan., seven hundred forty-five and no-100 dollars, payable as follows, to wit:
March 30, 1904, $244.70.
March 30, 1905, $232.70.
March 30, 1906, $220.70.
March 30, 1907, $153.70.
With interest at 10 per cent, per annum after maturity, if not paid when due. Privilege given to pay this note, or $100 or any multiple thereof, at any time. If any part of this note is not paid at maturity the mortgage by which the note is secured shall be foreelosable at once, without notice, at the option of the holder. The note is secured by a second mortgage on real estate.
[Indorsements:] Henry M. Brady.”
“6-21, 1904. Paid forty-four 70-100 dollars.
Paid one hundred dollars, November 22, 1904 (being pp. No. 18,493).
Paid fifty dollars 25-100 ($50.25), being int. on all to March 30, 1905.
August 9, 1905, paid fifty dollars to Electa W. Hill and at her request.
March 29, 1906, paid two hundred thirty-one dollars.”
The mortgage was of the same date as the note, but it did not contain a copy of the note. It did contain the following paragraph:
“This grant is intended as a mortgage to secure the payment of a certain promissory note this day executed and delivered by the first party to the second party, for seven hundred forty-five dollars, due in accordance with a certain note of even date, and bearing 6 per cent, interest from the date thereof if not paid promptly when due. Failure of the first party to pay any part of said note when due, or failure to pay any prior encumbrance or the interest thereon when due, or failure to pay the taxes on the above property when due, or failure to keep up the insurance on the property, shall, at the option of the legal holder of the note secured, cause all of said debt to become due and payable immediately with 10 per cent, interest from the date hereof, and render this mortgage foreelosable at once, without notice.”
While Croasdale was negotiating for the land, and before its purchase was completed, he applied to New man, the president of the bank, through W. A. Willis, for information as to the amounts due on the mortgages against the land, and received the following statement:
“Emporia, Kan., February 26, 1906.
“■W. A. Willis, Emporia, Kan.:
“Dear Sir — Referring to the mortgage for $1800, made by Henry M. Brady to me and assigned by me to Marinda A. Holt, of Farmington, Me., which said mortgage covers the northwest quarter of section 12, township 20, range 10, of this county, and is recorded in book 46 of mortgages, at page 380, beg to advise you that this mortgage draws interest at the rate of 5% annually.
“Referring to the mortgage made by Henry M. Brady to Francis S. Hill for $745, covering the same land, beg to advise you that the note secured by this mortgage is in our bank, and upon the back are the following indorsements:
June 25, 1904, paid $44.70.
November 22, 1904, paid $100.
March 30, 1905, paid $50.25.
August 9, 1905, paid $50.
Making a total of $244.95 indorsements on the back of said note. There is a payment due on this note of $232.70, March 30, 1906, and the balance of it will be due March 30, 1907.
Yours very truly,
F. C. Newman,
President Citizens National Bank, Emporia."
On March 29,1906, following the receipt of the statement, Croasdale paid $231,. and this amount, as we have seen, was indorsed on the note. It is said that when Croasdale, a prospective purchaser, undertook to ascertain the extent.of the lien against the land he learned from the mortgage record that the debt was $745, that it bore no interest except in case of default, and the one remaining matter for inquiry then was what payments had been made and when the balance would be due. When this information was given him by Newman no mention was made of the larger amount shown to be due according to the terms of the note, and it is contended that the excess of the note over the amount of the mortgage was, as to him, a secret lien, and that the failure of Newman to tell him of the excess precludes the plaintiff from recovering it at this time. While the note named $745 as the amount promised, the annual payments specified in the note aggregated $851.80; but it is manifest that this total is made up of the principal sum and interest thereon at six per cent, up to the time of the first payment, and the same rate thereafter upon the amounts remaining due after each successive payment should be made. It is not easy to see how the plaintiff could be bound or estopped by what Newman, a mere collection agent, said to a stranger; but if it were assumed that Croasdale had a right to rely on Newman’s statement there was still no reason why he should have been deceived or misled. He purchased the land subject to this mortgage. An examination of the mortgage record alone showed that in certain contingencies the debt bore interest and might be much larger than $745. He was put upon inquiry as to the accumulation of the interest upon the mortgage debt, and this clue, if diligently followed, would have led to a’ knowledge of the aggregate amount due upon the note. Having his attention drawn to the matter of interest and to the condition that the total debt might be more than the principal named in the mortgage, he could not close his eyes nor rest safely until he had pursued the inquiry and learned the terms of the note mentioned in the mortgage and the amount of the mortgage debt.
Croasdale concedes that it was his duty to inquire, and that he is chargeable with notice of all that he might have learned by a diligent inquiry, but he insists that when he made inquiry of Newman and obtained his statement he had used the degree of diligence which the law requires and had a right to rely upon that statement. Granting that he might rest upon that statement, how could it have misled him? It did not purport to give all of the terms of the note, or the amount then due or that finally would be due upon it. It gave the dates and the amounts of the several payments indorsed upon the note and the time and the amount of the next payment, and also the time when the balance would be due. It did not purport to state what the final balance would be nor whether any interest payments would enter into that balance. There was nothing in the statement to show whether there had been any defaults in the prior payments or whether interest had accrued by reason of defaults, as provided for in the mortgage. The statement, so far as it went, gave the facts correctly, and Croasdale had no reason to complain of either the form or extent of the statement, because it appears that it was prepared by his agent, Willis, after a conversation with Newman. He could easily have seen the note, learned its terms and the extent of the mortgage lien, and if the true amount due was a matter of consequence to him he could have made the inquiry and had the result included in the written statement. The information was not incorrect, and the inquiry should have been extended, if further information was desired.
Even if the statement given had been incorrect it may well be doubted whether Croasdale could have relied on it when there was manifest opportunity to examine the note itself. (Jones v. Smith, 1 Hare [Eng.], 43; 1 Jones, Mort., 6th ed., §§ 70, 578, 579.) The general rule is that a party acquiring knowledge affecting an estate from one instrument is ordinarily charged with notice of the contents of other instruments affecting the same estate to which an examination of the first would naturally have led him. Enough was shown in the mortgage to call attention to the note and to raise an inquiry as to the amount of the lien, and it would seem that a prudent man would not have stopped short of an examination of the note, from which the true amount due could have been definitely learned. At any rate it is clear that the statement made does not estop the plaintiff nor prevent her from enforcing payment of the entire mortgage debt.
The judgment is affirmed. | [
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Per Curiam:
These cases were submitted with The State v. Foren, ante, p. 654, and present the same questions For the reasons given in the opinion in that case, the orders of the court directing a return of the property seized are affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Josephine Dunkerton and Charles Dunkerton were prosecuted for the violation of a city ordinance of Fort Scott prohibiting the sale of intoxicating liquors and the keeping of a place where such liquors were sold. The complaint contained ten counts, nine of which charged sales of intoxicating liquors and one the maintaining of a nuisance. After a conviction in the police court the defendants appealed to the district court, where a trial was had which resulted in a conviction upon the charge of maintaining a nuisance. Each was sentenced to imprisonment for six months and to pay a fine of $500. In their appeal to this court they challenge the sufficiency of the complaint upon which the conviction rests. Counsel for the city insists that the question is not properly presented here for review. The appellants sought to test the complaint by a motion to quash, directed at the entire complaint, containing ten counts, but as some of the counts were unquestionably good the motion could not be allowed, even though the single count upon which they were subsequently convicted was obviously defective. (The State v. Elliott [Kan. 1901], 64 Pac. 1027.)
The defendants also undertook to raise the question by an objection to the admission of any testimony under the complaint. After the jury had been sworn and when the first witness was called upon the stand and questioned the objection was made and overruled. It has been repeatedly held that such an objection is not a proper method of testing the sufficiency of a criminal accusation, and hence there was no error in the ruling. (Rice v. The State of Kansas, 3 Kan. 141; The State v. Jessup, 42 Kan. 422, 22 Pac. 627; The State v. Ashe, 44 Kan. 84, 24 Pac. 72; The State v. Pryor, 53 Kan. 657, 37 Pac. 169.)
The defendants finally sought to raise the question on a motion in arrest of judgment, which specifically alleged that the count upon which they were convicted did not state a public offense. While a technical error in form or an imperfection in the statement of a complaint which might be held bad on a motion tó quash is not always sufficient after a verdict of guilty to arrest the judgment (City of Kingman v. Berry, 40 Kan. 625, 20 Pac. 527), the alleged defect in the complaint will be considered.
In the nuisance count it was charged that the defendants, “on or about the 8th, 9th, 10th, 11th, 12th and 13th days of March, A. D. 1907,” kept and maintained in a certain building in the city of Fort Scott “a place where intoxicating liquors, were and are sold, bartered and given away; a place where intoxicating liquors were and are kept for sale, barter and delivery; a place where persons were and are- permitted to resort for the purpose of drinking intoxicating liquors as a beverage; and a place where intoxicating liquors, glasses, pumps, barrels, kegs, jugs, and bar fixtures were and are kept in maintaining said place; which said place and said intoxicating liquors, glasses, pumps, barrels, kegs, jugs, and bar fixtures, kept and used in maintaining said place, were and are a common nuisance.” It is contended that the complaint is defective in that it fails to state concurrence of time in the acts charged against defendants, it is argued that the words “were and are,” as used, are open to the interpretation of the keeping of a place at a past time and of sales and other acts of defendants at a present time. As will be observed, each act of the defendants is charged to hgve been done in the past, and the addition of the words “and are” may fairly be treated as surplusage. In substance it is alleged that defendants, from the 8th to the 13th days of March, 19Ó7, inclusive, did keep a place where intoxicating liqqors wer.e sold and kept fpr sale, and where persons were permitted to resort for the purpose qf drinking such liquors, etc. In effect it is charged tt^t all pf the acts constituting the offense were continuous and concurrent throughout the time mentioned, and constituted but one pífense. (The State v. Giroux, 75, Kan. 695, 90 Pac. 249.)
Attention is called to the oinission of the words “then and there,” which are usually employed in charges of this character, but the times of doing the forbidden acts having been pnce definitely stated and showing concurrence, a repetition of the averment wag unnecessary. (Crim. Cpde, § 110.)
It is also claimed that there is a defect in omitting the negative averment that the place kept by defendants was not a private dweIling:house. The offense of maintaining a nuisance may be committed m a dwelling pr any other h'qnse, and hence it is nqt necessary to state the kind of a house in which the nuisance was kept and maintained.
The judgment qf the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This is an original proceeding in quo warranto, brought by the city of Olathe against the Missouri. and Kansas Interurban Railway Company, seeking to forfeit the rights granted by ordinance to that corporation to operate its road in certain streets of the city. The defendant has filed a demurrer and a motion to dismiss, based upon these three contentions: (1) The controversy indicated by the petition relates to a mere matter of contractual rights between the city and the company, and is not triable in quo warranto proceedings. (2) The city is not a proper plaintiff in such an action. (3) Upon the facts alleged the court ought not to take jurisdiction.
There is some conflict in the authorities upon the first proposition. The two views are thus stated in .volume 23 of the American and English Encyclopaedia of Law, at page 643, the cases being collected in notes to the text:
“The right under a municipal ordinance or contract to operate a street-railway or to lay pipes or string wires in or along a public street or highway has been held not a franchise and not triable by quo warranto. Any unlawful user must be redressed as other ordinary wrongs or breaches of contract. But a contrary view has been taken, and it has been held that a grant by a city, by authority of its charter, of the right to use its streets and highways for the purpose of laying pipes, etc., is a franchise for which quo warranto will lie.”
The question has been so fully and satisfactorily treated in the recent case of State v. Railway Co., 135 Iowa, 694, 109 N. W. 867, that there is no occasion to say more than that this court without hesitation adopts the conclusion there stated in these words:
“The first objection raised in argument by appellant is based upon the vital proposition that the controversy indicated by the pleadings involves a mere matter of contractual rights- and obligations between the railway company and the city in which neither the state nor the general public has any interest, and is therefore not triable in proceedings of this kind,, whether instituted upon the relation of-the county attorney or of private citizens. This position finds support in the decisions of the courts of Illinois and Michigan [citing-cases]. But, as we read the books and consider the-principles involved, the rule thus announced is not supported by the weight of authority or by the better reason. Of course, if the term ‘franchise’ is to be limited to the mere right to corporate existence, then without: doubt rights obtained subsequent to the incorporation and based upon grants from or contracts with a municipality would not come within the definition, and it would be at least questionable whether an action under the statute to test corporate rights would lie for their- abuse or usurpation. But it is a thoroughly well-established proposition that rights granted to a corporation, either directly or by the state indirectly through the act of a minor municipality authorized by the state, are to be regarded as franchises no less than is the right to be a corporation. Both classes of rights are derived mediately or immediately from the state, and both are subject to the inherent power of the state to guard against their abuse by the grantee or usurpation by a wrong-doer. The occupation of the public street for railway purposes is not a matter of common right, and without a legislative grant therefor the construction or maintenance of such a railway would expose the party responsible therefor to punishment as for a nuisance. The municipality to which is given authority to grant such a ■ privilege exercises a delegated power only, and it can not grant to any person or corporation a privilege which is confessedly in derogation of the common right, in a manner which shall exclude the power of the state to inquire into its abuse, or to prevent the subversion of the public interests which the legislative grant was intended to promote. Such, except in the two states above named, is the practically universal holding of the courts. . . . That the right to occupy the public streets with a railway depends entirely upon legislative grant and is therefore a franchise, notwithstanding the fact that the terms of such grant and their acceptance constitute also a contract, is too well settled to be open to serious question. . . . Not only is the application of quo warranto or its statutory substitute to cases of this kind upheld by the overwhelming weight of authority, but it is clearly in accord with the dictates of sound public policy.” (Pages 704, 707.)
Whether the city may maintain such an action in its own name is a matter of statutory construction. Section 654 of the .code of civil procedure reads, in part:
“When the action is brought by the attorney-general or the county attorney of any county of his own motion, or when directed to do so by competent authority, it shall be prosecuted in the name of the state, but where the action is brought by a person claiming an interest in the office, franchise or corporation, or claiming any interest adverse to the franchise, gift or grant which is the subject of the action, it shall be prosecuted in the name and under the direction and at the expense of such persons.”
The words “or claiming any interest adverse to the franchise, gift or grant” were added by amendment in 1871, and seem intended to cover just such a case as the present one. At all events they plainly apply to it. Whether or not the city can be said to claim an interest in the franchise which is the subject of this action, it certainly claims an interest adverse to it, and has a special and peculiar interest in the matter. That a municipal corporation is a “person” within the meaning of the word as here used does not admit of doubt. Under our practice, as defined by this statute, the individual who by the more usual custom would be permitted to sue in the name of the state on his relation may maintain the action in his own name as plaintiff. In State, ex rel., v. R’y Co., 140 Mo. 539, 41 S. W. 955, 38 L. R. A. 218, 62 Am. St. Rep. 742, a case very similar to the present one, the city of Kansas City was the relator.
Notwithstanding that quo warranto is available as a remedy for the abuse or non-user of rights granted by ordinance for the use of the public streets, and that the city is a proper plaintiff in such a proceeding, we conclude that the court in the exercise of a sound discretion ought not to retain the present case for trial. The ordinance involved took effect and was accepted by the company in February, 1907, and was amended in March. The railway line was completed and operation thereof begun in August. This action was begun in December. The violations of the ordinance complained of are, in substance: (1) The railway track is not laid on the street grade, the pavement is not properly replaced, and the road-bed has not a sufficient foundation to prevent its settling in places and thereby making the streets unsafe for ordinary travel. (2) The company refuses to grade a part of a street, as it had undertaken to do. (3) The company provides a service between Olathe and its earlier terminus of one car in three hours, instead of one in two hours, as required. (4) The equipment provided by the company is not modern or adequate. (5) The company operates its cars within the city at a high and dangerous rate of speed. (6) The company fails and refuses to pay the sum of $12,000, which by the ordinance was to be paid to the city to be used in widening a street, and which was due August 1.
We think the faults alleged are not so serious, have not been persisted in for such a length of time, and their correction by other remedies has not been so obstinately resisted, as to warrant the court in resorting to the extreme measure of forfeiting all right to the use of the streets. So far as relates to the payment of the money, a suggestion is made of a controversy as to the amount due and its time of maturity. If a question of fact is raised, in good faith in this regard, this is not an appropriate proceeding in which to try it. But whether so or not, the mere delay of payment for a few months, even in view of the allegation that the company is insolvent, is not sufficient to call for the immediate forfeiture asked. As was said in City of Topeka v. Water Co., 58 Kan. 349, 49 Pac. 79:
“Courts are extremely reluctant to adjudge forfeitures of corporate privileges and franchises; and, being vested with some discretion in proceedings brought for that purpose, will ordinarily do so only where no other adequate remedy is available.” (Syllabus.)
We do not decide that there is a technical failure of the petition to state a cause of action, nor shall we now undertake to determine what remedies might be successfully invoked by the city upon the facts alleged; but the case is dismissed because the court is of the opinion that sufficient effort to obtain relief by other means is not shown to warrant a declaration of forfeiture at this time. | [
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The opinion of the court- was delivered by
' Johnston, C. J.:
This proceeding involves the question whether the cause of action brought into the case by an amendment to the petition and upon which a recovery was had was barred by the statute of limitations. The cause of action alleged in the original petition was based on an act of the railroad company in setting out a fire on and adjacent to its right of way,. in the town of Wakeeney, on March 18, 1902. It was alleged that the fire was negligently set out in the operation of the railroad, and that it spread and ran until it reached the plaintiff’s premises, where it destroyed his fruit- and forest-trees. The railroad company answered denying the averments of the petition and alleging that the loss was occasioned by the plaintiff’s negligence. In the statement of the case made at the opening of the trial on the issues so joined counsel for plaintiff remarked that he had recently learned that the fire which caused the loss was not the fire referred to in the petition. The defendant then asked for judgment on the opening statement of plaintiff, and the plaintiff in turn asked and obtained leave to átolend his petition “so as to charge that the damage resulted from another and different fire than that described in the original petition.” The amendment was made, and it charged the negligent setting out of a fire on the same day, to wit, March 18, 1902, at á point shown to be about five miles distant from Wakeeney, thé stártingplace of the fire mentioned in the Original petition, and that it caused the burning and destruction of plaintiff’s trees. In different ways the defendant challenged the xight of the plaintiff to amend his petition at that late day, and thus introduce new elements and what is termed a new cause of action, but the court allowed the .amendment and permitted a trial upon á charge of negligence which was first pleaded about three years after the fire and about one year after a new action would have been barred by the statute of limitations. A recovery was had against the defendant, and, while a number of objections are made to rulings upon the testimony and upon the special findings of the jury, the case must be determined upon the question raised on the pleadings.
If the amendment pleaded a different tort than was alleged in the original petition, and brought in a new right of action, such action must be deemed to have been commenced when the amended petition was filed. An amendment which substitutes one charge of negli■gence and ground of recovery for a different one, and which must depend upon facts distinct and different from those originally pleaded, does not relate back to the commencement of the action, and is open to the-defense of the statute of limitations. Under our system amendments may be made which do not substantially change the claim or defense set out in the original pleadings. (Civ. Code, § 139.)
“It is true, as a general rule, that amended pleadings relate back to the commencement of the action, but this rule never obtains where a separate and distinct cause of action is set up by way of amendment. Even though the amendment might otherwise be allowable,it is generally held that it will not be permitted when the effect will be to make the state of facts pleaded relate back so as to avoid the statute of limitations if the new cause of action would be otherwise barred.” (Kansas City v. Hart, 60 Kan. 684, 691, 57 Pac. 938.)
Amendments which amplify the averments in the original pleading or which state the same wrong.or right in a different form can not be said to state a new cause of action or let in the statute of limitations. Here, however, it was conceded that the negligent act pleaded in the amendment was not the one originally alleged. It appears that two fires were started by the railroad company, one in the town of Wakeeney and another five miles away from that place, and it is not claimed that the latter was connected with or a continuation of the former. The mere fact that the plaintiff’s property was burned gives no right of action against the defendant. It depends rather upon the negligence and wrong of the defendant in starting the fire which resulted in burning the plaintiff’s trees. The cause of action is made up of two elements, the negligence of the defendant and the injury suffered by the plaintiff, and the fact that the defendant was negligent at Wakeeney does not sustain the claim that it was negligent at another time and at a place five miles away from Wakeeney. It is true that both pleadings charge negligent acts of the same-general character which were not far apart in point of time, but as pleaded they were distinct wrongs, resting upon wholly different facts ;and circumstances. The amendment was not the amplifying of the facts, nor the correction of the statement of the same facts. The original petition set up sa- complete- cause of action based on one tort and the amendment set up a complete cause of action based on another tórt, and these might be open to- different defenses, and testimony which would" support negligence in one case might have no bearing on the other. It is quite unlike a case where there has been a single tort which has, been insufficiently or incorrectly described or where the amendment is no -more than a change of the form or expression of the subject-matter of the action;
The plaintiff refers to Culp v. Steere, 47 Kan. 746, 28 Pac. 987, as an.authority that the amendment was. permissible. There the original petition claimed damages because of wrongful statements made in the sale of a horse, while the amendment set up that the wrongful statements included a warranty that the horse was fit for the purpose for which he was sold. There was therefore- no substantial change of plaintiff’s claim. The cited case of Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837, 72 Am. St. Rep. 343, is not.applicable, as the amended petition did no more . than “set forth definitely that which had been pleaded generally in the original petition,-and. therefore it can not be said that a new cause’ of action or a new ground of recovery was introduced.” (Page 115.) Anoth’er case referred to is Bank v. Layfeth, 63 Kan. 17, 64 Pac. 973, where an amendment was allowed. The subject-matter of the action was that the bank by its wrongful acts had deprived the plaintiff of his interest in a herd of cattle. In the original petition he alleged that the cattle had been sold and disposed of by the bank and converted to its own use and in the amended petition it was alleged that the bank directed and procured another to sell the cattle and that it had appropriated and converted the proceeds of the sale to its own use, and it was properly held that the transactions pleaded were substantially identical. In Railway Co. v. Ludlum, 68 Kan. 719, 66 Pac. 1045, a fire case, an amendment was authorized. The original petition charged negligence in setting out a fire in grass growing upon and near the track of the railway company by a defective locomotive negligently handled, while the amended petition alleged negligence in allowing grass, weeds and leaves to accumulate on the right of way and that the fire mentioned in the original petition was communicated to these by the negligence of the company in the operation of its road. This, as was said, was only an amplification of the negligence alleged in the original petition. In each pleading reference was made to the same fire, and the amendment gave a fuller and more specific statement of the condition of the grass on the right of way and of the starting of the fire which resuited in the plaintiff’s loss. In the present case, if the plaintiff in his amendment had described and relied on the fire first pleaded, and had only enlarged upon the manner in which that fire started and was communicated to his premises, it might be said that it did not substantially change his claim so as to let in the defense of the statute of limitations. It is not enough to avoid the bar that the new facts relate to the same transaction, nor that the new claim might be united with the old one if seasonable application had been made, but wherever the facts stated in the amendment amount to a new cause of action it may not be added after the statute of limitations has run.
In A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, it was said that “a plaintiff can not de prive a defendant of the benefit of the statute of limitations by engrafting upon a case commenced in time another causé of action barred by the statute.” (Page 734.) In Kansas City v. Hart, 60 Kan. 684, 57 Pac. 938, where a daughter was killed, the father first sét up a common-law liability for the loss of her services. He also had a cause of action under the statute as next of kin, and, after the statute of limitations had run, undertook to tack the latter cause of action upon the former and thus escape the running of the statute', but it was determined that, although either cause of action might be supported by the same evidence as to the way the daughter was injured and as to the defendant’s negligence, it was in fact a different claim or right of action, and hence was open to the bar of the statute.
Plaintiff insists that these cases are not applicable because they relate to a departure from law to law, but if the amendment introduces a new right of action it is immaterial whether it is a change in the facts or the law. “A departure may be either in the substance of the action or defense, or the law on which it is founded.” (Saunders, Pl. & Ev., 807. See, also, 1 Chitty, Pl., 16th ed., 811.) A departure from law to law may be more distinctly marked than one from fact to fact, but the latter is equally vulnerable to attack and open to the operation of the statute of limitations where the amendment introduces a new cause of action after the statutory period. This is illustrated in the case of Box v. Chicago R. I. & P. Ry. Co., 107 Iowa, 660, 78 N. W. 694. There the plaintiff first charged negligence of the railway company in using different systems of coupling appliances on its cars by which he was injured. After the statutory period the plaintiff sought to amend by charging that the company’s negligence consisted in allowing the appliances to become loose and out of repair, and it was held to be a departure from fact to fact, which was not permissible after the statute of limitations had run. In Union Pacific Railway Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, the amendment asked based the right of recovery on a law other than that upon which the original claim was founded, and the court, while recognizing it as a departure from law to law, added that “if the charge of incompetency in the first petition was not per se a charge of negligence on the part of the fellow servant, then the averment of negligence apart from incompetency was a departure from fact to fact, and, therefore, a new cause of action.” (Page 295. See, also, Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; Van de Haar v. Van Domseler, 56 Iowa, 671, 10 N. W. 227; Wabash R. R. Co. v. Bhymer, 214 Ill. 579, 73 N. E. 879; C. & A. R. R. Co. v. Scanlan, 170 Ill. 106, 48 N. E. 826; Wingert v. Circuit Judge, 101 Mich. 395, 59 N. W. 662; Harper v. I. C. R. R. Co., 74 Ill. App. 74; Nelson v. First National Bank of Montgomery, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52; Meinshausen v. A. Gettelman Brewing Co., 133 Wis. 95, 113 N. W. 408; Stevens v. Brooks, 23 Wis. 196; O’Connor v. Chicago & Northwestern R. Co., 92 Wis. 612, 66 N. W. 795; Whalen v. Gordon et al., 95 Fed. 305, 37 C. C. A. 70; Lambert v. McKenzie, 135 Cal. 100, 67 Pac. 6.)
The cause of action set forth in the amended petition and upon which plaintiff relied being barred, there can be no recovery thereon, and therefore the judgment is reversed and the cause remanded, with directions to enter judgment in favor of the defendant. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal grows out of a K. S. A. 60-1507 proceeding in which the district court vacated petitioner’s conviction and sentence and ordered a new trial.
On May 12, 1967, petitioner, while represented by retained counsel, William Yockey, entered a plea of guilty to the offense of robbery in the first degree (K. S. A. 21-527). Before accepting petitioner’s plea, the district court carefully inquired of him whether: (1) any threats or promises had been made to induce a guilty plea, (2) he had freely counseled with his attorney and had been advised of his rights, (3) he understood it was incumbent on the state to prove the charge beyond a reasonable doubt, and (4) he wanted a jury trial. In response to further questioning, petitioner recounted “what happened” the night of the alleged robbery. Following this rather lengthy colloquy, the court concluded:
“It is apparent to the Court that this defendant is pleading guilty entirely because he is guilty, and no threats, promises or duress have been made upon this man to force or induce him to make this plea, and he has had advice of counsel, he understands his right to a trial by jury, and expressly waives his right to trial by jury; and therefore this plea, as a voluntary plea, will be accepted. . . .”
At allocution, petitioner stated there was no legal reason why sentence should not be pronounced. Thereupon, he was sentenced to the penitentiary for a term of not less than ten nor more than twenty-one years (K. S. A. 21-530).
Petitioner filed a 60-1507 motion on November 6, 1969, alleging, in substance, there was no factual basis for his plea of guilty to the offense charged, and the only crime committed was that of larceny. Counsel was appointed and at the evidentiary hearing the court heard testimony from the petitioner and the victim, Margaret Essig, relating to the facts surrounding the offense. The journal entry reflects the following:
“Findings of Fact”
“1. That no weapon was used in the commission of the offense set forth in the information. . . .
“2. That the testimony adduced by petitioner shows the victim was not placed in fear of some immediate injury to her person.
“Conclusion of Law”
“1. That the requisite elements of the offense as alleged in the information ... do not exist under the facts and therefore the plea of guilty entered thereto should be set aside and a new trial ordered.”
The state contends the judgment and sentence imposed after petitioner’s plea of guilty were not subject to collateral attack on the ground there was no factual basis for the plea. We believe, under the circumstances disclosed by this record, that the contention has considerable merit and must be upheld.
A fundamental principle of law in this state is that a plea of guilty, in order to be valid, must be freely, knowingly, and understandingly made. (White v. State, 203 Kan. 687, 455 P. 2d 562; Webb v. State, 195 Kan. 728, 408 P. 2d 662; Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.) Petitioner concedes his plea of guilty was voluntarily entered. We further note the district court’s order was not in any way buttressed on incompetency or ineffective assistance of counsel, nor was it premised on the plea not being knowingly or understandingly made.
The net effect of the district court’s action on petitioner’s motion was that it heard evidence and resolved the question of guilt or innocence. Such action clearly exceeded the scope of the remedy afforded for post-conviction relief. This court has held many times that the guilt or innocence of a convicted person is not properly justiciable in a 60-1507 proceeding. (Wood v. State, 206 Kan. 540, 479 P. 2d 889; Wolfe v. State, 201 Kan. 790, 443 P. 2d 260; Hanes v. State, 196 Kan. 404, 411 P. 2d 643.) With respect to what issues may be raised, see, Ware v. State, 198 Kan. 523, 426 P. 2d 78.
In view of the guilty plea entered by petitioner, there was no occasion for the trial court to hear evidence relating to proof of the offense either at the time of trial or in this collateral proceeding. We have repeatedly said that once a plea of guilty has been voluntarily entered by an accused, there is absolutely no necessity to introduce any evidence to maintain the conviction. A voluntary plea of guilty is a confession of guilt of the crime charged and every fact alleged therein. (Stiles v. State, 201 Kan. 387, 440 P. 2d 592; Wisely v. State, 201 Kan. 377, 440 P. 2d 632; Allen v. State, 199 Kan. 147, 427 P. 2d 598; McCall v. State, 196 Kan. 411, 411 P. 2d 647.) Moreover, where judgment and sentence have been entered upon a plea of guilty, there can be no review of the sufficiency of the evidence in a 60-1507 proceeding. (Toland v. State, 200 Kan. 184, 434 P. 2d 550.)
The federal courts, in considering the federal counterpart (28 U. S. C. § 2255) of our statute, have held that a plea of guilty admits all facts well pleaded, and after entry of such a plea and imposition of sentence, a judgment is not subject to collateral attack on the ground that, as a factual matter, the accused was not guilty of the offense charged. (Crow v. United States, 397 F. 2d 284 [10th Cir. 1968]; Adam v. United States, 274 F. 2d 880 [10th cir. I960].)
Petitioner seeks to support his position by relying on McCarthy v. United States, 394 U. S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166. That case is clearly distinguishable for the reason it involved the violation by the sentencing court of Rule 11 of the Federal Rules of Criminal Procedure. The decision of the United States Supreme Court was based solely on that court’s supervisory power over the lower federal courts regarding the acceptance of guilty pleas.
The judgment of the district court is reversed with directions to set aside its order vacating petitioner’s conviction and sentence and granting a new trial. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal is from a default judgment entered against the garnishee-appellant, James Feaster, doing business as Feaster Truck Company.
There is no serious dispute of fact. On April 24,1967, the plaintiff, Thompson-Kilgariff General Insurance Agency, Inc., obtained a judgment in the County Court of McPherson County, Kansas, against Martin Haskell and Robert Haskell, a partnership doing business as Haskell & Haskell, the judgment being in the amount of $950.32, plus interest. The judgment remained unpaid, and on October 20, 1967, an order of garnishment was directed to James Feaster, d/b/a Feaster Truck Company, requiring him to answer within twenty days. According to the return of the Ford County Sheriff the order was served on Feaster “by leaving with office manager, Kay Holt.”
When no response was filed to the order of garnishment the plaintiff filed a motion for judgment against Feaster, based on his failure to answer or reply within the twenty-day time, all as provided in K. S. A. (now 1970 Supp.) 60-718. A copy of this motion and a notice of hearing thereon were mailed to Feaster but he failed to make any reply thereto and on December 20, 1967, the date of hearing contained in the notice, default judgment was entered against Feaster for the sum of $1000 (the judgment, interest and costs then exceeding that amount).
Shortly thereafter, Mr. Feaster moved to vacate the default judgment. This motion was overruled by the County Court of McPherson County and an appeal was thereupon taken to the District Court, which likewise overruled Feaster’s motion to vacate. The present appeal followed.
The first point raised by Feaster in this appeal is, very simply, that the default judgment entered against him on December 20,1967, is void because the order of garnishment was never legally served upon him. We are obliged to agree.
K. S. A. 61-411, the governing statute when the garnishment proceedings were had herein, provides in effect that where the garnishee is a person, a copy of the garnishment order and notice [of time to appear and answer] shall be served upon him personally or left at his usual place of residence. Neither method of service was employed in the present case. The order was not served upon Feaster in person, nor left at his usual place of residence; instead the order was left, as the return shows, with Kay Holt, the so-called office manager.
The record reveals that Mr. Feaster and his wife own their home at 507 Andrew, Dodge City, Kansas, and that Feaster resides there. Accordingly, plaintiff’s suggestion that Feaster s business office might be regarded as his place of residence is without substance or merit. K. S. A. 77-201 Twenty-fourth provides:
“The terms ‘usual place of residence’ and ‘usual place of abode,’ when applied to the service of any process or notice, shall be construed to mean the place usually occupied by a person. If such person has no family, or does not have his family with him, his office or place of business, or if he has no place of business, the room or place where he usually sleeps shall be construed to be such place of residence or abode.”
From the record it is clear that Mr. Feaster did have a usual place of residence other than the office on south 283 highway from which his trucking operations were conducted and that leaving a copy at the office with Kay Holt — who, incidentally, was not the office manager but a secretary — did not constitute a valid service of the garnishment order on Feaster. The last sentence of the foregoing statute can have no application to the situation shown to exist here.
We believe the recent case of Briscoe v. Getto, 204 Kan. 254, 462 P. 2d 127, is controlling on this issue, even though the garnishment proceedings were issued out of the district court in that instance. In Briscoe, the order of garnishment was directed to an architect who employed the judgment debtor. The order was served on the architects secretary at his office in a Wichita office building. When the garnishee failed to answer, the judgment creditor filed a motion for judgment. This motion was overruled by the trial court because the garnishment order was not properly served. On appeal, the trial court’s action was affirmed.
It was contended in Briscoe, as it is here, that the service was valid by virtue of K. S. A. 60-204, which provides that substantial compliance with any method of serving process shall effect valid service if the court finds that, notwithstanding some irregularity or omission, the party served was made aware of a pending action in a specified court in which his person, status or property were subject to being affected. However, that contention was rejected by this court.
The rationale of the Briscoe decision is succinctly set forth in the syllabus:
“Service of process is the statutory method of obtaining jurisdiction over the person of a defendant and the method of service provided by statute must be substantially complied with. (Syl. ¶ 1.)
“Methods of service, new or additional to those otherwise provided by statute, are not authorized by K. S. A. 60-204. (Syl. ¶ 2.)
“Substantial compliance with some statutory method of service is necessary before the provisions of K. S. A. 60-204 have any validating effect.” (Syl. If 3.)
As we have said, the process in Briscoe emanated from district court, while here it was issued out of county court. However, the principle involved is the same in both instances. Under K. S. A. 1967 Supp. 60-304 (a), pursuant to which service was attempted in the Briscoe case, personal service upon an individual must be obtained either by delivering a copy of the process to the party personally, or by leaving a copy at his dwelling house or usual place of abode with a resident of suitable age and discretion (with exceptions not here applicable).
In the instant case, as in Briscoe, there was no substantial compliance with any method of service prescribed by statute. Such being the fact, the attempted service is void and life cannot be breathed into it through the medium of K. S. A. 60-204 by simply showing that the party sought to be served was made aware that a judicial action was pending which might affect his person, status or property.
Our decision that no valid service of the garnishment order was made upon Feaster makes it unnecessary to comment on other points raised on appeal.
The judgment of the lower court is reversed with directions to vacate the judgment against Mr. Feaster and enter judgment in his favor. | [
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Vernon Roosevelt Washington, has appealed from his conviction by a jury of the crime of murder in the first degree (K. S. A. 21-401) and his sentence of life imprisonment. The offense occurred on October 14, 1967, when one Mancel Lewis was killed during the perpetration of a robbery.
The various questions raised in this appeal center primarily on the trial court’s permitting the testimony of a witness given at the preliminary hearing to be read to the jury.
Louise Anderson testified as a state’s witness at the preliminary examination held on December 21, 1967. At that time she was subjected to vigorous and extensive cross-examination by Anthony Russo, defendant’s retained counsel. When the case came on for trial in district court in April 1969, the state presented evidence with respect to its unsuccessful efforts to locate the witness. Thereupon, the trial court determined the witness was unavailable and, over defendant’s objection, permitted the testimony she had given at the preliminary hearing to be read to the jury.
At the trial, as well as on appeal, defendant complains of the trial court’s ruling on the ground that his constitutional right to be confronted with the witnesses against him was violated. He argues that the right of confrontation includes not only the right to cross-examine the witness, but also the right to have the jury weigh the witness’s demeanor. Furthermore, he stresses that a preliminary examination is far different in nature and purpose than the trial itself.
The identical arguments now advanced were fully answered in State v. Terry, 202 Kan. 599, 451 P. 2d 211, where our own decisions on the point were examined in light of recent pronouncements by the United States Supreme Court. There we held:
“Under both the federal and state constitutions a defendant charged with crime is entitled to be confronted with the witnesses against him — that is, to meet them face to face.
“The basic reason underlying the constitutional ‘confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.
“An exception to the confrontation requirement is that where a witness is unavailable and has given testimony at a previous judicial proceeding [such as a preliminary examination] against the same defendant which was subject to cross-examination by that defendant — the testimony of such witness may, upon a proper showing and foundation — be introduced at the subsequent proceeding. This exception has been explained as arising from practical necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirements.” (Syl. 1, 2, 3.)
The provisions of K. S. A. 60-460 (c) (2) for the most part codify the decisions in this jurisdiction, permitting the testimony of a witness given at a preliminary hearing to be used at trial. Even though the witness’s testimony given at. the preliminary examination was subject to cross-examination by the defendant, as a condition precedent to the testimony being admissible at trial, it must be shown that the witness is unavailable.
Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a “good faith effort” to obtain the witness’s presence at trial (Barber v. Page, 390 U. S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P. 2d 695; State v. Guthrie, 192 Kan. 659, 391 P. 2d 95; State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Bonskowski, 180 Kan. 726, 308 P. 2d 168; State v. Streeter, 173 Kan. 240, 245 P. 2d 1177. Also, see K.S.A. 60-459 [g]).
By way of foundation evidence, the state called Joseph A. Horvat, an investigator for the county attorney’s office, who testified about the efforts made to locate Louise Anderson during the six months preceding trial. Subpoenas were issued and given to members of the vice squad in the event any of them encountered the witness. Horvat consulted with Major Boston Daniels of the Kansas City, Kansas police department, who received information the witness might be in Leavenworth. Major Daniels contacted the authorities there and sent the detective bureau a “mug shot,” all to no avail. Horvat and sheriffs deputies went to at least two addresses they had for the witness on several occasions, but were told each time that she had moved and thus were unable to get any “leads” on her whereabouts. The record also discloses that subpoenas were issued immediately before trial for Louise Anderson, the last bearing a return by the sheriff that he was unable to locate the witness “after diligent search and inquiry.” Contrary to defendant’s contention, the foregoing evidence was sufficient to establish that reasonable diligence had been used by the state in seeking to ascertain the whereabouts of the witness and to procure her attendance at trial. The trial court did not err in finding the witness was unavailable and in permitting her testimony to be read to the jury.
Defendant also asserts the trial court erred in overruling his objections to leading questions and to the scope of redirect examination of the witness Anderson when her preliminary hearing testimony was read to the jury. Assuming, as defendant suggests, that under K. S. A. 60-460 (c) the same rules relating to objections to the admissibility of depositions are applicable to objections to prior testimony given at a preliminary hearing, we are of the opinion the rulings of the trial court should not be disturbed. Any objection to leading questions was waived when defendant failed to object at the time of the preliminary hearing. (K. S. A. 60-226 [e] and 60-232 [c] [2]; Elyria-Lorain Broadcasting Co. v. Lorain Journal Co., 298 F. 2d 356 (6th Cir. 1961); Nutterville v. McLam, 84 Idaho 36, 367 P. 2d 576.) The scope of redirect examination rests largely in the sound discretion of the trial court. We find nothing here indicating the lower court exceeded the bounds of discretion in permitting the testimony of the witness given on redirect examination to be read to the jury.
Defendant next complains about the jury being instructed that the testimony of an unavailable witness was to be weighed by the same standards as other testimony. (See PIK 2.22.) The argument is made that the instruction placed undue weight and emphasis upon the testimony of Louise Anderson. We discern nothing prejudicial in the giving of the instruction. The PIK committee suggests, and we believe rightly so, that when testimony of an absent witness is read to the jury, the court may properly call attention to such evidence by an appropriate instruction inasmuch as members of the jury might otherwise disregard testimony of a witness they have neither seen nor heard.
Defendant finally contends he was denied a trial by an “impartial jury” because a number of prospective jurors were successfully challenged for cause after stating they possessed moral, personal, or religious convictions against imposition of the death penalty. He urges that selective exclusion of jurors having an attitude against capital punishment results in a more prosecution-prone jury with greater propensity to render a guilty verdict. The same contention was fully considered last month in Zimmer v. State, 206 Kan. 304, 477 P. 2d 971, where we held that the exclusion of jurors opposed to capital punishment will not be presumed to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction in violation of constitutional standards. Our decision in Zimmer disposes of the point and further discussion would merely be repetitious.
No prejudicial error has been shown and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action was instituted by Unified School District No. 335 to enjoin the enforcement of certain orders made by the state superintendent of public instruction transferring portions of plaintiff’s territory to three other unified school districts. Plaintiff’s right to maintain the action was successfully challenged in the lower court and constitutes the sole issue for determination in this appeal.
The legislature, with its plenary power over the establishment, alteration, and disorganization of school districts, delegated to the state superintendent the authority to transfer territory from one unified district to another after the filing of a petition and a hearing thereon, all in accordance with K. S. A. 1967 Supp. 72-6758 (now K. S. A. 1970 Supp. 72-7108). We gather from the record that the orders of the state superintendent now being questioned came about as a result of petitions filed in April 1968 by the three defendant unified districts requesting that certain territory lying within the plaintiff district be transferred to them.
In its petition filed herein, plaintiff challenges the legality of the transfer orders on various grounds and alleges the actions of the state superintendent were arbitrary, capricious, and amounted to constructive fraud. Plaintiff asks that the orders be declared illegal and void, and that the transfer of any territory under the purported orders be enjoined. The petition, in effect, constitutes an attack on the validity of the reorganization of defendant unified districts as a result of the addition of territory from the plaintiff district.
Under the settled law of this jurisdiction, an action challenging the legality of the organization or reorganization of a municipal corporation can only be maintained by the state acting through its proper officers. Our many decisions in which we have steadfastly adhered to the rule may be found in DeForest v. Herbert, 204 Kan. 516, 464 P. 2d 265; Babcock v. City of Kansas City, 197 Kan. 610, 419 P. 2d 882; Bishop v. Sewer District No. 1, 184 Kan. 376, 336 P. 2d 815, and an extended discussion of the subject is deemed unwarranted here.
This court has never permitted a private individual to bring an action attacking the legality of the organization of a municipality or a quasi-municipal corporation such as a school district, where the plaintiff’s right to bring the action was properly challenged. In this respect, a school district has no greater standing than a private litigant. While a school district may sue or be sued, it lacks authority to maintain an action questioning the boundaries or the validity of the organization of another school district. Such an action can only be brought in the name of the state by its duly authorized officers. (School District v. Shawnee County Comm’rs, 153 Kan. 281, 110 P. 2d 744; School District No. 38 v. Rural High School District, 116 Kan. 40, 225 Pac. 732; School District v. Board of Education, 102 Kan. 784, 171 Pac. 1154; Cf., Wagner v. School District, 138 Kan. 428, 26 P. 2d 588.)
In School District No. 38 v. Rural High School District, supra, a common school district attacked the validity of a rural high school district whose boundaries included the territory of the plaintiff district. In holding that plaintiff could not maintain the action, this court said:
“The action being an attack on the validity of the rural high school district, the defendants challenge the right of the plaintiff to maintain it. It has been settled by a long fine of decisions that the existence or validity of such an organization can only be questioned or attacked in an action brought by the state and prosecuted by the attorney-general or county attorney. . . . While a school district is a public organization with authority to sue and be sued, it has not been vested with authority to challenge the validity of another public municipality or corporation. That function is vested in the state to be prosecuted only by its authorized representatives. In this respect the school district is in the attitude of a private party and has been given no right to intervene in behalf of the state or to challenge the validity of another school district in an injunction proceeding. (School District v. School District, 45 Kan. 543, 26 Pac. 43; School District v. Gibbs, 52 Kan. 564, 35 Pac. 222.)” (pp. 42-43.)
In attempting to sustain its position on appeal, plaintiff relies on Board of Satanta v. Grant County Planning Board, 195 Kan. 640, 408 P. 2d 655, and State, ex rel., v. Mowry, 119 Kan. 74, 237 Pac. 1032. Neither case, in our opinion, is helpful. The right of the school district to maintain the action was never challenged in Satanta. Although Mowry may lend support to plaintiff’s claim for relief on the merits, the action there was instituted by the state acting through the attorney general rather than by the school district affected.
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The opinion of the court was delivered by
Fromme, J.:
The city governing body of Topeka rezoned a portion of one block of a residential area lying south of Eighth street and between Buchanan street on the east and Lincoln street on the west to accommodate construction of a medical office facility which could eventually take care of fourteen doctors.
A group of homeowners near the area brought an action under K. S. A. 12-712 to test the reasonableness of the rezoning ordinance. The district court after hearing the evidence found the action of the governing body of the city and the ordinance to be unreasonable and entered an order enjoining the city from publishing and enforcing the ordinance.
The city and the developer have appealed.
The rules of law which govern this type of proceeding have been set forth and discussed in many of our recent decisions including Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; Arkenberg v. City of Topeka, 197 Kan. 731, 421 P. 2d 213; Keeney v. City of Overland Park, 203 Kan. 389, 454 P. 2d 456 and Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445.)
In Bodine and Keeney it was pointed out that in determining reasonableness the trial court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence. The presumption exists that the governing body acted reasonably, and it is incumbent upon those attacking its action to show the unreasonableness thereof.
In Bodine and Arkenberg it was declared that a comprehensive zoning plan prepared and recommended by the planning commission, as contemplated in K. S. A. 1965 Supp. 12-708, does not obligate the governing body of the city to zone property in accordance with the plan.
In Arkenberg and Waterstradt it was held that zoning is' not to be based upon a plebiscite of the neighbors, although their interests are to be considered, for the final decision of the governing body should be governed by a basic consideration of the benefit or harm involved to the community at large.
In determining reasonableness or lack of it in zoning cases our court has indicated that action which is capricious, arbitrary or oppressive is unreasonable in the sense that term is used in K. S. A. 12-712. When the action of the city governing body in rezoning an established residential area is taken without regard to the benefit or harm involved to the community at large and is so wide of the mark as to be outside the realm of fair debate the action of the governing body and the ordinance are unreasonable.
At the trial the homeowners introduced the testimony of Leland R. Edmonds, associate professor of planning at Kansas State University. He has impressive credentials in the field of city and area planning. He testified extensively concerning this neighborhood, the comprehensive land use plan of the city recommended by the planning commission and the five year neighborhood analysis of this area. There was testimony from various homeowners which indicated that, although the houses in the area were from 40 to 60 years old, several of the homes had been purchased during the past seven years at substantial prices (from $25,000 to $32,500) for residential purposes.
The district court made the following findings of fact and conclusions of law:
“1. An application for Amendment to the District Zoning Map was filed by the defendant, Jack C. McCarter, with the Topeka-Shawnee County metropolitan planning agencies (herein referred to as the Planning Commission) on February 26, 1969, and was given No. Z 69-24.
“2. The application requested a change of the district zoning classification from “C” two-family dwelling to “E” multiple-dwelling district.
“3. The present use of the property in question is residential and the desired use was medical building. The properties in question are located at 812 and 816 Lincoln Street and 825 Buchanan Street, Topeka, Shawnee County, Kansas.
“4. The intended use of the property is a medical facility and off-street parking area as shown in Joint Exhibit 1-A. The proposed facility will provide for approximately 12 to 14 doctors’ offices, a retail pharmacy, a snack bar and parking for 82 vehicles.
“5. The existing zoning and use of area is as follows:
EXISTING ZONING AND USE OF AREA
Zoning Use
North: “E” Multiple and
“C” two Family.............. Dwelling and Vacant
South: “C” Two Family.........Single Family & Two Family Dwellings
East: “C” Two Family...........Single Family & Two Family Dwellings
West: “C” Two Family..........Single Family & Two Family Dwellings
“6. On March 21, 1969 at public hearing before the Planning Commission the application was disapproved (3-4-0).
“7. On May 6, 1969 the City Commission voted to approve the application.
“8. On May 8, 1969 the City Clerk referred the application back to the Planning Commission as provided for in KSA 12-708 as amended with a request that the Planning Commission reconsider the petition. The basis of approval by the City Commission was that the property in question would be put to the highest and best use.
“9. On May 16, 1969 the Planning Commission unanimously voted to reaffirm their previous decision to disapprove the application by a vote of 7-0 for disapproval.
“10. On July 8, 1969 the City Commission voted approval of the application by a vote of 4-1. By Ordinance No. 12763, amending the “District Map” of zoning ordinance section 30-502 of the Code of Revised Ordinances of 1963, a zoning change was made from “C” two-family dwelling to “E” multiple dwelling on the subject properties.
“11. Under K. S. A. 12-701 et seq., the legislature intended that a general plan for the development of a city be adopted by creation of a planning commission. The commission acts as an advisory body to the city commission.
“12. Under K. S. A. 12-704 the Plan shall constitute the basis for guide for public action to insure a coordinated and harmonious development or redevelopment which will best promote the health, safety and morals, order, convenience, prosperity and general welfare. The Plan is a guide for the city commission.
“13. There are 54 children in the immediate area; that the area was not deteriorating but on the contrary, the properties have been improved by the owners; that the proposed change would destroy the character of the neighborhood which is a residential area of single and two-family dwellings predominately; that the traffic problems would endanger the children and further cause traffic congestion.
“14. That 84% of the homes on Buchanan Street between 8th Street and 10th Street are owner-occupied, and 73% of the homes on Lincoln Street between 8th and 10th Streets are owner-occupied. Further that the Hasselle home would be surrounded on three sides by “E” multiple, the existing “E” multiple on the north and the proposed zoning on the south and west. Further the Halpin home and the Hasselle home would have a 65-car parking lot located between their homes.
“15. On Buchanan Street between 8th and 10th Streets there are seven homes on the west side, six of which are single-family owner-occupied and one multiple dwelling rental. On the east side there are 12 homes, of which 10 are owner-occupied (seven single-family) and two rental dwellings. On Lincoln Street between 8th and 9th Streets there are 17 homes, of which 11 are single-family owner-occupied, five rental dwellings and one empty.
“16. The proposed change in the District Zoning Map from “C” to “E” was not based on the Preliminary Land Use, (Comprehensive Land Use) Plan of the City of Topeka.
“17. The area proposed to be changed is not in the particular area designated for medical facilities in the Preliminary Land Use Plan; and further, the proposed change would not improve the living area; the living areas would not be reasonably protected from through traffic.
“18. The proposed zoning change constitutes an incompatible land use in that the intense traffic of medical facilities is not compatible with living areas because of constant movement of traffic which under such circumstances, would create a generally unsatisfactory living environment.
“19. The proposed zoning is detrimental to the neighboring property owners in that such would constitute a spot zoning, which would create an instability of property values in that people tend to seek the opportunity to sell their properties when such zoning was allowed and people tended to cease to pay for the maintenance of property when such zoning was permitted, and thus the zoning would precipitate a significant deterioration of the entire area.
“20. The medical facility as proposed and the community as a whole would be better served if the said facility were placed in the particular area designated in the Land Use Plan.
“21. The basis for approval of the application by the City Commission was that the subject properties would be used to the highest and best use of the land. This theory is only one criteria to be considered among others, and those are that the use of said property has to relate to the objectives and the principle of the Plan and that in fact the proposed zoning should follow the basic principles or guidelines laid out in the Land Use Plan.
“22. The area in question is designated as the Clay Neighborhood as particularly designated in Neighborhood Analysis. In this neighborhood in the year 1960 6.1% of the homes were listed as deteriorated and 1% of the homes were listed as dilapidated. In 1965, 5.2% of the homes were listed as deteriorated and .9% of 1% of the homes were listed as dilapidated.
“23. The Neighborhood Analysis indicates that there are 160 neighborhoods in the metropolitan area and that 61 different elements were considered. Points were given for rating the various elements and that it was possible to receive 3500 points. The Clay neighborhood received 2,000, or 57% of the total possible, and that it had received a final overall rank of 21 out of 160 neighborhoods.
“Conclusion of Law
“1. The action of the governing body of the City of Topeka was unreasonable.
“It is the judgment of the Court that the plaintiffs have sustained the burden of proof and that the action of the City of Topeka in granting a change of zoning from “C” two-family dwelling to “E” multiple dwelling on the properties located at 812 and 816 Lincoln and 825 Buchanan Streets, Topeka, Shawnee County, Kansas is unreasonable. It is the further judgment of the Court that the City of Topeka and its agencies be and are hereby enjoined from publishing and/or enforcing the ordinance herein granting said change.”
We have studied the record before us and are convinced the court’s findings are adequately supported by a preponderance of the evidence. We are further convinced that these findings compel the court’s conclusion that the action of the governing body of the city of Topeka in rezoning this small residential area was unreasonable.
None of the city commissioners testified at the trial. The only testimony in support of the rezoning was by Robert Lee who is a real estate broker engaged in the appraisal and investment business in the city of Topeka. His testimony was largely directed toward establishing that the rezoning was justified because it would result in permitting the highest and best use of this residential area. “Highest and best use” is only one of the criteria to be considered. If this were the only criteria no residential district could withstand an attempt to rezone for commercial purposes.
In addition to medical office facilities, “E” multiple zoning permits the following additional uses: radio broadcasting studios; banks; savings and loan businesses; business or commercial schools; dancing or music academies; office buildings; insurance offices; psychiatric, surgical and diagnostic clinics and analytical research and testing laboratories.
The appellants contend the court erroneously assumed that the city was bound by the comprehensive land use plan recommended by the planning commission. Such a plan does not obligate or bind the city. (See Bodine v. City of Overland Park, supra, and Arkenberg v. City of Topeka, supra.)
A city is not unalterably bound by a comprehensive land use plan. This is true whether the plan is merely recommended to the city or adopted by ordinance. The city must be free to deviate from such a plan when the essential nature of a neighborhood changes substantially. (See Arkenberg v. City of Topeka, supra.) It is inherent in the purpose and philosophy behind zoning regulations that the governing body remain free to act in the best interests of the community at large. However, a planning commission does act in an advisory capacity to the city governing body, and their recommendations on a comprehensive land use plan as well as their disapproval of zoning changes are entitled to some weight and consideration by the city governing body. As we read and interpret the trial court’s findings and its memorandum opinion it did not assume that the city was unalterably bound by the comprehensive land use plan or by the planning, commission’s disapproval in this zoning change.
The appellants further complain of the trial court’s finding 19 that the ordinance would constitute “spot zoning”.
“Spot zoning” is a descriptive term rather than a legal term and spot zoning as such is not necessarily invalid. Its validity depends upon the facts and circumstances appearing in each case. (Bucholz v. City of Omaha, 174 Nebr. 862, 120 N. W. 2d 270.) “Spot zoning” generally refers to the singling out of a small parcel of land for use classified differently from the surrounding area, primarily for the benefit of the owner of the property so zoned and to the detriment of the area and other owners therein. In such a case the zoning may be declared unreasonable and invalid.
In 8 McQuillin Mun. Corp. (3rd Ed.), Zoning, § 25.83 it is said:
“Although not denounced by any hard and fast rule, zoning in a haphazard manner is not favored and, on the contrary, zoning should proceed in accordance with a definite and reasonable policy. Thus, a zoning ordinance or an amendment of a zoning ordinance to permit piecemeal or haphazard zoning is void, and so-called spot zoning,’ where it is without a reasonable basis, is invalid. The legislative intention in authorizing comprehensive zoning is reasonable uniformity within districts having in fact the same general characteristics and not the marking off, for peculiar uses or restrictions of small districts essentially similar to the general area in which they are situated. . . . Thus, singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment, is invalid ‘spot’ zoning. . . .”
In Cassel v. City of Baltimore, 195 Md. 348, 73 A. 2d 486 it was stated:
“ ‘Spot zoning,’ the arbitrary and unreasonable devotion of a small area within a zoning district to a use which is inconsistent with the use to which the rest of the district is restricted, has appeared in many cities in America as the result of pressure put upon councilmen to pass amendments to zoning ordinances solely for the benefit of private interests. While the City Council has wide discretion in enacting zoning ordinances, it has no authority to place restrictions on one persons’s property and by mere favor remove such restrictions from another’s property, unless there is reasonable ground for the discrimination. . . .” (p. 355.)
Considering the relevant findings of fact made by the trial court we believe that the proposed ordinance would have devoted a portion of one block in this residential area to a use inconsistent with the use to which the rest of the district is restricted and would have constituted not only spot zoning but also arbitrary and unreasonable spot zoning.
Some question has been raised concerning the testimony of a witness who testified concerning the ownership and occupancy of three of the houses located in this general area. Assuming without deciding that this testimony was hearsay and should not have been admitted we cannot say prejudicial error was committed in view of the other evidence in the record supporting the trial court’s conclusions. It does not affirmatively appear to have prejudicially affected the substantial rights of the appellants. (See K. S. A. 60-2105.)
Judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action wherein the defendant was convicted of driving while under the influence of intoxicating liquor by a jury. He was sentenced to a term of ninety days in the county jail of Montgomery County, Kansas, and fined $100. Appeal has been duly perfected.
The controlling question on appeal is whether the trial court erred in permitting the state to cross-examine various character witnesses on assumed prior arrests and convictions of the defendant for drunkenness and drunken driving.
On the 15th day of March, 1969, Eldon Hinton (defendant-appellant) was arrested by a highway patrol officer a few miles north of Coffeyville, Kansas, on U. S. Highway No. 169. He was charged with driving while under the influence of intoxicating liquor and tried in the court of Independence on the 29th day of April, 1969, and convicted. He perfected an appeal to the district court of Montgomery County, Kansas, and on the 10th day of October, 1969, was tried and convicted by a jury of driving while under the influence of intoxicating liquor. His motion for a new trial was duly filed, argued and overruled.
It is unnecessary to review the evidence in the case concerning the condition of the appellant at the time of his arrest by the highway patrol officer. The evidence pertaining to his driving while under the influence of intoxicating liquor is more than adequate to sustain a finding of guilty, and the appellant does not challenge the evidence in this regard.
After the appellant’s arrest by the highway patrol officer and on the trip to the Montgomery County jail, the patrol officer asked the appellant if he would submit to a blood alcohol test, and the appellant answered in the negative. After explaining the consequences for failure to- submit to a blood test the appellant said he did not want such test. He gave as his reason that “he was arrested once before and had a blood test and didn’t want no more of that.” As a result there was also a hearing before the examiner of the motor vehicle department of the state of Kansas respecting the appellant’s refusal to submit to a blood test.
The evidence offered by the appellant consisted primarily of calling character witnesses who testified as to his good reputation within his community, both as to being a peaceful and law-abiding citizen and his good reputation for sobriety and industry.
On the cross-examination of John Masavero, a character witness for the appellant, the following inquiry was made by the county attorney:
“Q. In arriving at your opinion, sir, do you know whether or not this defendant has twice been arrested previously for being drunk?
“Mr. Crossan: We object to that as assuming a proposition not in evidence.
“The Court: The objection is sustained.
“Q. Do you know whether or not he has?
“A. I did not know, sir.” (Emphasis added.)
A similar inquiry was made by the prosecuting attorney on the cross-examination of Richard Harper, a character witness, as follows:
“Q. In arriving at your opinion, I will ask you if you knew or considered that he had twice previously been arrested for drunken driving.” (Emphasis added.)
(Following objection by counsel for the appellant, proceedings were conducted in chambers out of the presence of the jury, whereby the court permitted the prosecuting attorney to rephrase the question. Counsel for the appellant moved for a mistrial, and it was overruled by the trial court. The jury returned and the following proceedings were then had in the presence of the jury:)
“The Court: Strike the last question, Mrs. Burris. You may proceed, Mr. Heasty.
“Q. Mr. Haiper, I will ask you that, if you have heard as a part of the reputation that you have testified about concerning sobriety, that Mr. Hinton has been convicted or been charged with drunken driving?
“A. No, sir, I never have.” (Emphasis added.)
On cross-examination of Pete Murray, a character witness for the appellant, the prosecuting attorney asked:
“Q. Mr. Murray, did you ever hear in the community that he had twice been arrested for being drunk — ”
(Objection interposed at this point by counsel for the appellant was overruled.)
“A. I did not hear of any other acts. This is the first act like this that I have heard that he did.” (Emphasis added.)
During the cross-examination of Doris Hinton, the appellant’s wife and a character witness, the prosecuting attorney inquired:
“Q. Do you knoio, Mrs. Hinton, whether or not your husband was arrested in Wichita, Kansas, on January 20, 1965, for being drunk—
“Mr. Crossan: Now, just a minute, we object for the reason that it assumes a proposition not in evidence and we ask that the county attorney be admonished for misconduct.
“The Court: Overruled.
“Mr. Crossan: At this time the defendant moves for a mistrial because of the misconduct of the county attorney.
“The Court: The motion is overruled.
“A. No, I don’t.
“Q. Did he never mention that to you, whether or not it occurred?
“A. No, sir.
“Q. Do you know whether he was in Wichita — does he go to Wichita from time to time?
“A. We were living there at that time.
“Q. You lived in Wichita during 1965?
“A. We lived there from 56 to November 1, 1966.” (Emphasis added.)
The record before the trial court discloses no evidence whatever that the appellant had previously been arrested or convicted of drunkenness on any occasion, or that he had ever been arrested or convicted of drunken driving on any occasion in the past. Furthermore, there is no indication in the record that the prosecuting attorney, prior to cross-examining the character witness on rumors of misconduct of the accused, or upon arrests, charges or convictions, gave his professional statement to the judge in the absence of the jury that he had reasonable ground to believe, and did believe, that crimes or misconduct, which were imputed by the rumors, or which were the subject of the arrests or charges, were actually committed by tire accused, and that the judgments of conviction inquired about were actually pronounced. The record does not disclose that any evidence of this nature was submitted by the state at any time during the trial of the case to substantiate the inferences left by the questions posed upon cross-examination of the character witnesses. (See K. S. A. 60-447.)
At all times counsel for the appellant objected to the nature of such inquiries and interposed a motion for mistrial at various times throughout the proceeding, and he raised the point in his motion for a new trial. The rulings by the trial court were all adverse to the appellant.
Nowhere in the record, assuming the inquiry was proper, did the trial court instruct the jury when these questions on cross-examination were propounded to the character witnesses as to the limited nature for which the jury was entitled to consider this information— that it was admissible only for the limited purpose of attacking the credibility of the character witness. Furthermore, such instruction was not among the general instructions given when the case was submitted to the jury.
The objections interposed by counsel for the appellant to arrests and/or convictions assumed by the prosecuting attorney in cross-examining the character witnesses were premised on the ground that the questions assumed facts which were not in evidence, and which could not be placed in evidence because they were not true.
After counsel for the appellant argued one of his motions for a mistrial the trial judge remarked, and the following appears in the record:
“The Court: Now the Court has already ruled on this. This motion has already been ruled on. If the Court thought for one minute that there had been an attempt to improperly influence this jury, the Court would have taken appropriate action at that time.
“Mr. Crossan: At this time we object to the Court commenting on the evidence or lack of evidence, and ask for a mistrial for that reason.
“The Court: The motion will be overruled. . . .”
Presumably the foregoing occurred in the presence of the jury. The record does not disclose otherwise, and appellant’s counsel asserts that it did occur in the presence of the jury.
The propriety of the inquiry propounded to the character witnesses by the prosecuting attorney was again raised in final arguments made to the jury, and an objection was asserted by counsel for the appellant.
The county attorney, in an effort to show the questions propounded to the character witnesses were not improper, submits in his counter abstract on appeal an F. R. I. report disclosing on its face that the appellant was “Arrested or Received” on August 15, 1942, by the Wichita, Kansas, police department for being drunk. No disposition of this case is indicated. It also discloses that on Janu ary 20, 1965, the appellant was “Arrested or Received” on a charge of drunkenness by the Wichita police department, which was disposed of by a fine of $27.90.
At best this F. B. I. report, assuming it to be true, discloses two arrests for drunkenness, of which one resulted in a conviction. No other offense is shown on the report except the present D. W. I. (driving while intoxicated) charge which is the subject of this litigation.
None of this information was before the trial court.
The state contends the possession by the county attorney of an F. B. I. record of the appellant showing two arrests and one conviction for being drunk; and the appellant’s own statement to the highway patrol officer that he had previously gotten into trouble by consenting to a blood test, justifies legitimate limited inquiry of character witnesses as to whether they had heard such reports in the community. The state contends reference' by the appellant to a blood test on a previous occasion, which had gotten him into difficulty, would certainly lead a reasonable person to believe that he had at some time and place been at least charged with D. W. I. This fact alone, it is submitted, should justify a limited inquiry of persons vouching for his sobriety as to whether or not they had heard whether he had ever been arrested for D. W. I.
To give perspective to the problem at hand, we must resort to certain fundamental principles. In the trial of a criminal case the state in presenting its primary evidence to prove its case cannot resort to evidence of the defendant’s bad character. But the defendant may offer evidence of his general good reputation in the community or neighborhood for the specific trait in issue — reputation being synonymous with character for this purpose. (K. S. A. 60-460 [z] and Michelson v. United States [1948] 335 U. S. 469, 93 L. Ed. 168, 69 S. Ct. 213; and see K. S. A. 60-447, codifying the Kansas law.) Such evidence is admitted because of its tendency to demonstrate the improbability of the defendant’s commission of the offense charged. (Gard, Kansas Code of Civil Procedure Annotated, §60-447, p.438.)
Once the defendant has undertaken to establish his good character, he opens the entire subject which the law has kept closed for his benefit, and the state is at liberty to rebut such evidence. (60-447, supra.) However, the same limitation applies as to the type of proof received, that is, it must be adapted to the charge made and must involve the specific trait in issue. (60-460 [z], supra; Michelson v. United States, supra; and see State v. McDonald, 57 Kan. 537, 46 Pac. 966; State v. Yeater, 95 Kan. 247, 147 Pac. 1114; State v. McKee, 131 Kan. 263, 291 Pac. 950; and State v. Earley, 192 Kan. 144, 386 P. 2d 221.)
The restriction finds its justification substantively in the necessity of avoiding proof of a multiplicity of irrelevant events of a defendant’s life which the prosecutor may think cast disparagement on his general reputation as a good citizen. From the standpoint of trial practice it conforms with the ordinary rule which limits the cross-examination of a witness to the matters discussed on direct examination, and with the rule which confines rebuttal to contradiction of specific subjects introduced on direct or cross-examination of defense witnesses. (K. S. A. 60-243 (b); and see Gard, Kansas Code of Civil Procedure Annotated, § 60-460 [z], pp. 495, 496.)
Out of the foregoing rule has grown the practice with which we are concerned in the instant case.
When a defendant produces witnesses who testify to his good reputation for the relevant facet of character, here sobriety, they may be cross-examined as to whether they have heard rumors in the community or neighborhood as to acts or conduct or charges prior to the offense presently asserted by the state which tend to negative such reputation. (State v. McDonald, supra; State v. Yeater, supra; State v. McKee, supra; State v. Earley, supra; and see K. S. A 60-420.)
Such cross-examination is sanctioned as a test of the witness’ credibility, the theoiy being that if he has heard such disparaging rumors his standards as to what constitutes good repute may not be sound, or he lacks good faith, or if he has not heard the rumors, which did in fact circulate, then he is not actually familiar with the defendant’s reputation. In Michelson v. United States, supra, the court said:
“. . . Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of tire offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.” (p. 479.)
The purpose for which the cross-examination of the defendant’s character witness as to particular acts is permitted is not to establish the truth of such acts, but merely to test the credibility of the character witness.
It has often been held by courts throughout our land that it is improper to permit the proof of particular acts of the defendant, as facts, on the cross-examination of his character witness, as distinguished from cross-examination as to whether the witness has heard of reports or rumors of such acts; and that it is improper to ask such witness concerning his personal knowledge of such acts. This rule is substantiated by our own decisions. (State v. McDonald, supra; State v. Yeater, supra; State v. Killion, 95 Kan. 371, 378, 148 Pac. 643; and see McCormick on Evidence [1954] Good Character of Accused, § 158, pp. 333, 335.)
The administration of the foregoing rule is in the hands of the trial judge, and he has a heavy responsibility to protect the practice from being abused. (Michelson v. United States, supra.) A correlative obligation rests upon the prosecutor to display a very high degree of good faith in embarking upon such cross-examination. This rule is recognized in State v. Yeater, supra, at p. 250.
The cases in other jurisdictions have generally held that a very high degree of good faith on the part of the prosecuting attorney is required in such cross-examination of the defendant’s character witness. It is said that unlimited cross-examination without regard to the actual facts would enable an unscrupulous prosecutor to “manufacture his foundation and then proceed upon the foundation thus laid.” (State v. Rowell [1915] 172 Iowa 208, 223, 154 N. W. 488.)
In State v. Dixon [Mo. 1916] 190 S. W. 290, the court said:
“While we recognize the great latitude permitted in cross-examination in order to test the memory and truthfulness of witnesses offered to prove good reputation, we yet think that the matters inquired about in such a cross-examination should not be merely chimerical, or drawn from the vivid imagination of opposing counsel, or manufactured at the instant for the purpose of producing an erroneous impression, but they ought to have reference to some actual criminality, or breach of the peace, or ill conduct of the party inquired about which would go to hurt reputation. . . .” (p. 293.)
To permit the prosecuting attorney to inquire on cross-examination of the defendant’s character witness whether he has not heard that the defendant was guilty of a certain criminal offense is calculated to carry with it the imputation of guilt, to the defendant’s great prejudice, unless the court is careful to make clear to the jury the purpose of the question. There must be perfect good faith on the part of counsel propounding the question, the right of full and free explanation in argument by counsel for both sides, and a clear and emphatic charge of the court to the jury, confining the evidence thus obtained to the purposes for which such interrogatories and answers are legally permissible. (Kelly v. State [1920] 17 Ala. App. 577, 88 So. 180; and Gross v. United States [8th Cir. 1968] 394 F. 2d 216, Syl. ¶ 2.)
Such questions should not be asked by the prosecuting attorney in the absence of information warranting a reasonable belief on his part that the fact is as implied by the questions; in other words, the questions should not be asked for the mere purpose of getting before the jury an intimation that the defendant had theretofore been guilty of specific acts of misconduct; and where it is apparent that such is the only object of the questions it is undoubtedly misconduct on the part of the prosecuting attorney. (People v. Perry [1904] 144 Cal. 748, 78 Pac. 284; State v. Bateham [1919] 94 Or. 524, 186 Pac. 5; and see State v. Kidwell, 199 Kan. 752, 434 P. 2d 316.)
In 3A Wigmore, Evidence, § 988 (Chadbourn, rev. 1970) it is said:
“It is to be noted that the inquiry is always directed to the witness’ hearing of the disparaging rumor as negativing the reputation. There must be no question as to the fact of the misconduct, or the rule against particular facts would be violated; and it is this distinction that the Courts are constantly obliged to enforce:” (p. 912.)
Under K. S. A. 60-407 all evidence is admissible if it is relevant to the issue being investigated, but where a party may be prejudiced by the admission of evidence (See K. S. A. 60-445), or the admissibility of evidence is challenged, the trial judge may conduct a preliminary inquiry pursuant to K. S. A. 60-408 and determine the admissibility of the evidence.
The trial judge in determining whether to allow the prosecuting attorney to cross-examine the defendant’s character witness, when challenged by the defendant, should conduct a preliminary inquiry out of the presence of the jury, and he should satisfy himself:
(1) That there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction or other pertinent misconduct of the defendant;
(2) That a reasonable likelihood exists that the previous arrest, conviction or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;
(3) That neither the event nor conduct, nor the rumor concerning it, occurred at a time too remote from the present offense;
(4) That the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and
(5) That the examination will be conducted in the proper form, that is, “Have you heard,” etc., not “Do you know.”
(State v. Steensen [1955] 35 N. J. Super. 103, 113 A. 2d 203; Michelson v. United States, supra; and see 3A Wigmore, Evidence, § 988 [Chadbourn, rev. 1970].)
If the conclusion is reached to allow the interrogation, the jury should be informed of its exact purpose, either at the conclusion of the cross-examination of the character witness, or in the charge made to the jury at the close of the case.
An extended annotation accumulating the cases may be found in 71 A. L. R. 1504-1546 on “Cross-examination of character witness for accused with reference to particular acts or crimes.”
Turning now to the facts in the instant case, we find that the defendant produced four character witnesses, all of whom testified to the good reputation of the appellant in the community for the trait in issue, namely sobriety. Some of the questions propounded on cross-examination by the prosecuting attorney were improper in form; they elicited answers from the character witnesses indicating the implication conveyed by the prosecuting attorney’s question was true; but the trial court had nothing before it to show the good faith in which the prosecuting attorney propounded the questions. The appellant’s testimony concerning a previous blood test was insufficient for the prosecuting attorney to infer that the appellant had twice previously been charged or convicted of drunken driving, or even that he had been charged once with drunken driving. The conclusion drawn by the prosecuting attorney from this statement of the appellant was pure speculation.
In the face of an adverse ruling the prosecuting attorney persisted in pressing the inquiry. (State v. Poston [1925] 199 Iowa 1073, 203 N. W. 257.)
Assuming the F. B. I. report submitted to this court on appeal for the first time was in the hands of the prosecuting attorney when this case was tried, and that it was a correct report, the only information it conveyed was that the appellant had previously been arrested and convicted of drunkenness on one occasion in Sedgwick County, Kansas. His reputation for sobriety in Sedgwick County would probably not be known in Montgomery County. The 1942 incident reported was too remote in time to be relevant. (State v. Willard [Mo. 1917] 192 S. W. 437; McCormick on Evidence, supra, at p. 337; and see State v. Owen, 162 Kan. 255, 176 P. 2d 564; and State v. O’Neal, 204 Kan. 226, 461 P. 2d 801.)
The remark of the trial court in ruling upon one of the appellant’s motions for a mistrial, in the presence of the jury, tended to fix in the minds of the jurors that the implication concerning the offenses or conduct, which was the subject of the prosecuting attorney’s cross-examination, was true.
All of these circumstances, coupled with the fact that the jury was at no time instructed concerning the limited purpose for which the cross-examination was permissible, prejudiced the substantial rights of the appellant in the trial of this case. We cannot say on the basis of such record the appellant had a fair trial.
Other points asserted by the appellant have been considered but are found to have no merit.
The judgment of the lower court is reversed with directions to grant a new trial. | [
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Per Curiam:
This is an original proceeding in discipline.
An original complaint was filed with the State Board of Law Examiners by the Wichita Bar Association against the respondent, appellant, James I. Nelson, on June 14, 1968. Subsequently an amended complaint was filed on July 31, 1969, and mailed to the respondent Nelson on August 1, 1969.
The amended complaint read:
“Pursuant to Rule No. 205 of the Supreme Court, and for the purpose of setting forth the charges herein clearly and specifically, the complaint against James I. Nelson is amended to read as follows:
I.
“On April 12, 1967, during the course of a hearing in the District Court of Sedgwick County in Case No. C-11503-67, In re Application of John E. Patterson for a Writ of Habeas Corpus, James I. Nelson did make statements which were disrespectful and unjustly critical of the courts in the city of Wichita, and did treat the judge of the municipal court of that city, whom he had called as a witness, with abuse and disrespect.
II.
“On February 28, 1967, James I. Nelson fraudulently represented himself as a detective of the Wichita Police Department while interviewing Daisy M. Hutchens, a witness in a criminal case.
III.
“On November 17, 1967, James I. Nelson appeared on a radio program broadcast by station KFH in Wichita and discussed litigation which was then pending in the United States District Court for the District of Kansas.
IV.
“James I. Nelson did counsel and advise John E. Patterson to commit a burglary at the law offices of Russell Shultz, 331 South Hydraulic in Wichita; and pursuant to Nelson’s advice, Patterson did in fact commit a burglary of said office on March 28, 1967.
V.
“In June or July of 1967, James I. Nelson did offer to purchase furniture and appliances from Freddie Glen Pope, or to take furniture and appliances in payment of attorney fees for services performed by Nelson for Pope, knowing at the time that Pope would obtain such furniture and appliances through burglaries.
“Dated July 31, 1969.
“By Order of the Board”
A hearing on the charges was held September 2, 1969, by a three-man panel of the State Board of Law Examiners.
The panel filed its report with the State Board of Law Examiners. We quote its report on Count I:
“As to Count I the panel finds that there has been no violation of ethics on the part of respondent in violation of Canons 1 or 18. The panel does not mean to condone the approach used, or attack made, by respondent on witnesses and the court in general by his comments. These comments, if they can be supported by evidence of substance should be made in the form of a complaint to this Board. If they cannot be so supported they would be better unsaid.
“The panel notes that continued use of statements and comments to this effect might constitute a violation of not only Canon 1 but also Canon 3 in that they might constitute an indirect attempt to exert personal influence on the Court. The panel does not believe that the finding today would preclude later use of the same facts in showing a continued series of events in order to support a showing of such a violation.
“Respondent Counsel would be wise to show caution in the future with respect to statements and conduct of this sort.”
The panel found that Counts IV and V charging the respondent with counseling, aiding and abetting the commission of burglaries and other crimes were not substantiated because of the questionable character of the complaining witnesses.
The panel, in its report, found the respondent guilty of the charges as alleged in Counts II and III of the complaint.
We quote its finding in connection with Count II of the complaint:
“The panel finds the allegations of Count II have been established by clear and convincing evidence; that on February 28, 1967, respondent did represent himself to Daisy M. Hutchens, a witness in a criminal case, that he was a detective on the Wichita Police Department, when, as a matter of fact, he held no position with the Wichita Police Department but was the attorney for Kenneth Wertz who was charged with burglary, larceny and possession of a narcotic drug. That such misrepresentations were made knowingly and fraudulently.
“That he has therefore violated Canon 15.”
The respondent contends that the evidence was not sufficient to support the charge. We cannot agree.
One of the witnesses, Daisy Hutchens, operated some apartments in the city of Wichita, Kansas. Some narcotic drugs were found in one of the apartments. The respondent represented the person charged with illegal possession of the drugs. Daisy Hutchens testified:
“Q. And have you ever seen Mr. Nelson before?
“A. Yes, I have. He was at my home at one time.
“Q. Do you recall when that was?
“A. Not the exact date. It’s been about two years ago.
“Q. What time of day was it, do you remember?
“A. It was in the afternoon, yes, right after lunch, about 1:30 or 2:00.
“Q. Was he alone or—
“A. (Interrupting) No. There was a lady with him, a blond-headed lady. She was small and much shorter than he, and he introduced her as his wife.
“Q. How did he introduce himself?
“A. He said, ‘I’m Detective Nelson from the Police Department and I would like to talk to you about some drugs that you have found in an apartment.’
“Q. And what did you say to him?
“A. I said, “Okay, come in.’
“Q. And you admitted him to your house?
“A. Yes, I did.”
The witness further testified that she saw the respondent at the traffic court in Wichita and stated:
“Q. And you were with—
“A. (Interrupting) I was with Detective Harvey Twichell.
“Q. And nobody else?
“A. No.
“Q. And you saw James Nelson in there?
“A. Yes, I did. He was sitting at the desk, at a table.
“Q. Did Detective Twichell identify him to you as James Nelson?
“A. Yes. He said, ‘Is that the man?’ And I said, ‘Yes, it is, he was at the house.’
“Q. Then did he tell you his name was James Nelson?
“A. He said, ‘Well, his name is James Nelson. He’s not a detective at all but a lawyer.’
“Q. And you are positive that was the same man who came to visit you?
“A. Yes, very much so.
“Q. The same man who identified himself as Detective Nelson?
“A. Yes.”
We are forced to conclude that the evidence was sufficient to sustain the charge.
We set out the panel’s findings on Count III as follows:
“As to Count III the panel finds that James I. Nelson did appear on radio station KFH in Wichita on November 17, 1967, on a program called “News-line”; that “Newsline” is a program with a Moderator and a guest where, after a discussion of a particular subject, the radio listeners call in and ask specific questions which the guest answers.
“On this particular occasion the panel finds that respondent discussed the arrest or detention of his clients, as to how and when they were detained, questioned or arrested; the actions of the officers in arresting and interrogating them; commented on his opinion as to the law as to what constitutes arrest; and as to the law of what constitutes a threat on the life of the President of the United States.
“The panel finds that there was litigation pending at the time of the action, one man being arrested and under $25,000.00 bond for threatening the life of President Johnson.
“The panel also finds that respondent used poor judgment in appearing on the program, that the tenor of his comments and the program might be interpreted as an attempt to gain public support for his clients’ cause and in such maimer to influence the public in litigation which might be commenced in the immediate future and influence the public in supporting the release of the one arrested S. D. S. member.
“The panel finds that the numerous references to respondent’s profession as an attorney — or as ‘Attorney Jim Nelson could have no effect other than indirect solicitation of law business.
“The panel, therefore, concludes that respondent has violated Canons 27 and 20.”
The respondent objects to the conclusion reached on the following ground:
“The Respondent did not represent the defendant in the federal court matter then or at any other time, had not relinquished his First Amendment rights, and would have been remiss under his oath as a lawyer if he had not spoken out, as vigorously as possible, under the circumstances of the illegal and atirocious actions of the Wichita police toward the witness, so-called, in this matter.”
The respondent stated in the radio broadcast — “my information comes from my clients primarily.” His clients were four persons who were being held for questioning in connection with the arrest of an individual for threatening the life of President Johnson.
It would serve no useful purpose to present and discuss the entire text of the radio program. It will suffice to state that the findings and conclusions of the panel were amply sustained by the record before it.
The respondent contends that the charge in Count III did not include the accusation of “advertising” and that, therefore, such a finding by the board was improper. We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. It is not required that the complaint contain a reference to the specific canon of ethics which may have been violated.
The panel recommended to the State Board of Law Examiners that the respondent be disciplined by suspension for six months.
The State Board reported to this court in part as follows:
“To the Honorable, the Justices of the Supreme Court:
“The State Board of Law Examiners respectfully reports:
“That, pursuant to the Rules of this Court, a hearing was held on complaints received from the Wichita Bar Association;
“That a panel composed of D. H. Corson, Jr., William Y. Chalfant and Perry Owsley (presiding) submitted its report to the Board as a whole at its meeting on February 9, 1970;
“That after discussion and consideration of the complaint and report the Board was of the opinion that the report of the hearing panel should be adopted, but that the discipline recommended to the Court should be public censure;”
We accept without comment the change made by the State Board of Law Examiners in the panel’s report from discipline by suspension to public censure and concur in the aforesaid findings and recommendations of the Board.
We do, for his future guidance, call respondent’s attention to the general conclusion adopted by the Board as follows:
“The panel believes that an examination of the records as a whole show respondent’s general attitude to be one of little respect for the rights and sensibilities of others, of little respect for the Police and Courts, and extreme over-zealousness on his part in defending his clients. . . .”
It is therefore by the court considered, ordered and adjudged that James I. Nelson be and he is hereby censured by this court. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an action for damages instituted by plaintiffs-appellants as purchasers of a new mobile home against defendantsappellees who operated a mobile home dealership in Wichita. ' Apparently, defendant DeVoe Treadwell owned and operated the defendant DeVoe Sales, Inc. For convenience appellants will be referred to as Greens or plaintiffs and appellees as DeVoe or defendants.
After a trial to the court judgment was entered for plaintiffs in the amount of $250.45. Plaintiffs filed motions to set aside findings or in the alternative to grant a new trial. The motions were overruled. Thereafter plaintiffs appealed and defendants cross-appealed.
We are first confronted with defendants’ motion to dismiss for failure on the part of plaintiffs to comply with rules of this court governing the preparation of the record on appeal. When filed, the motion was denied with leave granted to defendants to renew when the case was heard on the merits. In particular, defendants point out that plaintiffs failed to comply with the requirements of Supreme Court Rule No. 6 (d) (203 Kan. xxiv, xxv) as to the manner and form in which points on appeal must be stated. Defendants further show that plaintiffs’ brief is not reproduced in content and form as directed by Rule No. 8 (b) (203 Kan. xxvin.)
An examination of the record and plaintiffs’ brief reveals that defendants have good cause to complain. In this connection we direct attention to what this court has said concerning the responsibility, particularly of appellants, in preparing the record and reproducing briefs on appeal. (See Beams v. Werth, 200 Kan. 532, 438 P. 2d 957; State, ex rel., v. Doerschlag, 197 Kan. 302, 416 P. 2d 257; Scrinopskie v. Arthur Murray, Inc., 195 Kan. 278, 403 P. 2d 1001; and Bolyard v. Zimbelman, 195 Kan. 130, 402 P. 2d 813.)
Failure to fully comply with the rules pertaining to the form and content of the record and brief adds to the burden of this court and often unfairly puts opposing counsel in a disadvantageous position. In this case, our task is further complicated by the lack of any opportunity to be enlightened on oral argument since the appeal was submitted by agreement of the parties. Even though the manner in which plaintiffs have presented this appeal leaves much to be desired; in the interest of justice we have undertaken to dispose of the issues on their merits.
As a basis for their action, plaintiffs allege the sale of the new mobile home was fraudulent and void under K. S. A. 8-135 [now 1970 Supp.]. Plaintiffs also sued for puntive damages alleging defendants failed to purchase a policy of insurance on the mobile home, as required by the contract of sale. Defendants cross-claimed for damages based on a deficiency on the resale of the mobile home after it was repossessed by defendants.
In the course of the transactions, resulting in the purchase of the mobile home, two instruments were drawn up by DeVoe and signed by the Greens. The first was entitled “Customer’s Purchase Agreement for Mobilehome, Travel-Trailer or Vacation Unit.” It set out what appears to be the terms of the sale and trade-in allowance. The purchase agreement was not signed by anyone for DeVoe and carried the notation “Deal Binding if Customer Decides to. Buy.” At the trial the customer’s purchase agreement was introduced by Greens and marked plaintiffs’ Exhibit 1.
The second instrument referred to was signed by both parties. It is a document entitled “Retail Installment Contract,” the words “Purchase Money Chattel Mortgage” appear in parenthesis immediately underneath the heading.
The contract described the mobile home and listed the cash sale price $4,051.80, the down payment $685.45, insurance $304.00, finance charge $2,207.01, and a total time payment balance of $6,878.76. The contract further provided for 84 monthly installments in the amount of $81.89 each. The contract was offered into evidence by DeVoe and marked defendant’s Exhibit Í.
DeVoe assigned the contract with recourse to the Rose Hill State Bank.
Apparently, plaintiffs lived in the mobile home until sometime in March 1968, when payments became two months in default. The bank reassigned the contract to DeVoe who then repossessed the mobile home. The evidence shows that at the time of repossession there was a balance due of $3,687.92 after discounting future interest payments. The mobile home was sold for $3,706.61 with expenses of the sale amounting to $767.56 resulting in net receipts of $2,939.05 and a deficiency of $748.87 upon which DeVoe based its counterclaim.
Plaintiffs’ evidence consisted of the testimony of Mr. and Mrs. Green. Defendants offered no testimony, but relied upon the direct and cross-examination of plaintiffs’ witnesses and the contract of sale as evidence tó support their position. Both parties relied to some extent on interrogatories submitted by plaintiffs to defendants, and stipulations entered into at the pretrial conference.
At the conclusion of the trial the court announced its findings as follows:
“The Cowrt: Well, in addition to the stipulation I am going to find that Defendants’ Exhibit 1 is a bill of sale that meets the requirements of the State of Kansas. Included within that bill of sale and Plaintiffs’ Exhibit 1, there is an agreement on the part of the defendants, Devoe Sales, Inc., to purchase insurance for and on behalf of the plaintiffs, and that was included in the pay- meats. This was not done by the defendant, Devoe Sales, Inc., and amounts to a breach of contract on the part of that corporation. By that breach they are not entitled to any damages for the alleged deficiency. In like manner the plaintiffs did reside in the mobile home and did receive value from residing in the home itself in regard to the payments. I am going to award judgment in favor of the plaintiffs. I think it’s rather serious. I don’t think there is any showing of intentional fraud that would allow punitive damages. On the basis of the quantum error of this case, I am going to allow judgment in favor of the plaintiffs and against the defendants for the actual amount of money that was paid down, which was $250.45 and the costs of the action. Mr. Vieux: We aren’t recovering the installment payments? The Court: No, sir. As far as I am concerned that would be unjust. They did reside in the trailer. I am going to give them judgment for $250.”
The underlying question on appeal is whether the contract o£ sale, identified as defendants’ Exhibit 1, amounts to a bill of sale within the requirements of K. S. A. 8-135 (c) (3), [now 1970 Supp.], of the Registration of Motor Vehicles Act, which reads:
“Dealers shall execute, upon delivery to the purchaser of every vehicle, a bill of sale stating the lien or encumbrances thereon, in accordance with form prescribed by the commission for all vehicles sold by them. Upon the presentation to the commission or its authorized agents of a bill of sale executed in the form prescribed, by a manufacturer or dealer for a new vehicle, sold in this state, a certificate of title shall be issued in accordance with the provisions of this act: Provided, however, That simultaneously with the application for certificate of title, there is also an application for registration, and in no other cases.”
Greens contend the trial court erred in finding the contract (defendants’ Exhibit 1) to be a bill of sale and, further, emphatically point out that the trial court did not find that it had been delivered to them even though it might have amounted to a bill of sale. Greens further contend that the undisputed evidence shows that defendants failed to purchase insurance on the trailer, as required by the contract, and that as a matter of law they are entitled to judgment for compensatory damages for the full amount of their trade-in down payment and installment payments totaling $1,728.13 and in addition a judgment for punitive damages in the amount of $10,000.00.
Defendants concede the trial court made no express finding that the bill of sale was delivered but contend that such finding is implicit in the decision. Defendants further argue that even though the sale is void, nevertheless they are entitled to an offset against the amount paid by Greens by reason of the benefit to Greens from living in the mobile home for a period of sixteen months.
We turn to the question whether the sale herein was fraudulent and void under the provisions of 8-135 (c) (3), supra, by reason of DeVoe’s failure to execute and deliver a bill of sale to the new mobile home.
Greens rely on our decision in Wilcox Trailer Sales, Inc. v. Miller, 200 Kan. 315, 436 P. 2d 860. Wilcox, a dealer, sold a new mobile home to Patricia Miller. Mrs. Miller traded in a used Midjet house trailer as a down payment and executed a purchase money mortgage and note for the balance. The mortgage and note required Mrs. Miller to make monthly payments in the amount of $61.00. She made two monthly payments and thereafter defaulted. Wilcox brought an action in replevin to recover possession of the new mobile home. Mrs. Miller counterclaimed alleging that Wilcox failed to execute and deliver to her a certificate of title, bill of sale, or other indicia of ownership in violation of K. S. A. 8-135 (c) (6), [now 1970 Supp.], and asked the court to find the sale fraudulent and void, and for the return of all the consideration paid by her to Wilcox. It was conceded that Wilcox did not convey title by a bill of sale or any other indicia of ownership. The trial court found the sale fraudulent and void under 8-135 and gave Mrs. Miller judgment on her counterclaim for the value of her trade-in and the amount of monthly payments made by her. On appeal this court affirmed the trial court’s judgment on Mrs. Miller’s counterclaim and held:
“The provisions of K. S. A. 8-135 (<s) (3) are examined and construed, and it is held that with respect to the sale of a new vehicle by a dealer as defined in K. S. A. 8-126 (q) and 8-178 (b) 2, the statute does not contemplate the existence of a certificate of title for such vehicle. Its provisions require that the dealer shall execute, upon delivery of such vehicle to the purchaser, a bill of sale stating the lien or encumbrances thereon. Upon presentation to the Kansas Highway Commission or its authorized agent of such bill of sale for the new vehicle, a certificate of title shall issue in accordance with the provisions of the Registration of Motor Vehicles Act.
“Pursuant to provisions of the Registration of Motor Vehicles Act, a mobile home is a vehicle and is required to be registered with the vehicle department of the highway commission. (K. S. A. 8-126 [o] [h]; 8-127; 8-129; 8-143 [2] [6].)
“The provisions of K. S. A. 8-135 (c) (3) and (6) are examined and construed and it is held that the words bill of sale’ as used in 8-135 (c) (3) have the same connotation as the words ‘certificate of title’ as used in 8-135 (c) (6), and, as thus construed, it is unlawful for a dealer to sell a new vehicle required to be registered under the Registration of Motor Vehicles Act, unless, at the time of delivery thereof the dealer shall execute to the purchaser a bill of sale as required to be executed, and the sale of such new vehicle, without the execution of such bill of sale is fraudulent and void.” (Syl. |¶ 1, 2 and 3.)
In a comprehensive opinion, Justice Fatzer speaking for the court fully sets out the rationale of the holding in Wilcox. The statutory scheme governing a dealer’s duty, in the case of a sale of a new vehicle to execute a bill of sale stating liens and encumbrances under the Registration of Motor Vehicles Act, is explained and previous decisions of this court supporting the holding are cited and discussed.
It is unnecessary to lengthen this opinion by an extended discussion of our previous decisions but, to give emphasis to our construction of this part of the Registration of Motor Vehicles Act, we say again that the provisions of the Act mean exactly what they say; that they are to be literally interpreted and strictly enforced; and that failure to comply therewith renders the sale of a vehicle required to be registered under the Act fraudulent and void. (Wilcox Trailer Sales, Inc. v. Miller, supra, and cases cited therein at page 321.)
DeVoe relies on Knisley v. Wright, 192 Kan. 279, 387 P. 2d 154. It is argued the contract of sale (defendants’ Exhibit 1) meets the requirements of a bill of sale set out in Knisley. In Knisley a “Manufacturer’s Statement of Origin to a Motor Vehicle,” assigned by a dealer to the purchaser, was held to be the equivalent of a bill of sale. The assignment is reproduced at page 284 of the opinion; by its terms the manufacturer’s statement of origin is transferred to the purchaser by the dealer who certified the vehicle was new and had not been registered, and that the title was warranted subject to the lien which was fully described. In the opinion it is noted the assignment was duly acknowledged and was said to meet all of the requirements of a bill of sale. The opinion further noted that at the time (1963) the State Highway Commission did not require any particular form of bill of sale.
The retail installment contract (defendants’ Exhibit 1) found to be a bill of sale by the trial court falls far short of displaying the characteristics of a bill of sale exhibited by the manufacturer’s statement of origin and the assignment thereof in the Knisley case.
The handwriting in the blanks of the contract form, reproduced in the record submitted to us herein, is for the most part illegible. However, there seems to be little dispute about the content thereof and we have been able to supply it by a scrutiny of the answers to interrogatories, the stipulations, and the testimony of the Greens.
The instrument in Knisley clearly transferred and warranted title and ownership subject to the listed lien. While the unpaid balance shown on the retail installment contract here could be construed as showing an encumbrance, the instrument is obviously intended to serve not as a bill of sale but as a security document and was so used by DeVoe in assigning it to the Rose Hill State Bank. Title is not certified or warranted nor is the instrument notarized. As previously pointed out, the court observed in Knisley that the State Highway Commission did not require any particular form of bill of sale. Subsequent to the decision in Knisley in 1963, the Commission promulgated and published administrative rules and regulations (K. A. R. 36-20-10 and 36-20-12) pertaining to prerequisites to applications for title and title requirements for trailers, respectively. K. A. R. 36-20-10 reads in pertinent part as follows:
“Applications for certificate of title on a new vehicle must be accompanied by a notarized original bill of sale from the dealer. In cases where the vehicle is purchased from the factory or registered dealer in another state, the original invoice from the factory or notarized bill of sale from the foreign dealer shall be used.” (Emphasis supplied.)
The effect of regulation 36-20-10 is to bring registration policy of the commission in line with decisions of this court and to carry out the legislative policy declared in 8-135, supra. Rules and regulations adopted by an administrative agency and filed with the Revisor of Statutes pursuant to K. S. A. 77-405, [now 77-425], shall have the force and effect of law. (Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572; and State, ex rel., v. Columbia Pictures Corporation, 197 Kan. 448, 417 P. 2d 255.)
The retail installment contract in the instant case qualifies neither as a notarized bill of sale nor as an original factory invoice. It could not serve as a basis for an application for a certificate of title.
In view of what has been said the question whether a finding of delivery is implicit in the trial court’s judgment is immaterial.
Because of DeVoe’s failure to deliver a bill of sale or manufacturer’s original invoice to the Greens, the sale is fraudulent and void and the Greens have a cause of action based on fraud. (Wilcox Trailer Sales, Inc. v. Miller, supra; and Gurley v. Broadway Sales Co., 184 Kan. 179, 334 P. 2d 312.)
Instead of a judgment for $250.45, representing the actual money paid down, rendered by the trial court, apparently on a theory of breach of contract by DeVoe, Greens are entitled to a judgment for the total amount paid. According to stipulation No. 5 of the pretrial order the total amount is $1,728.13; consisting of $435.00 for a trade-in of car and furniture, cash in the amount of $250.45 (total down payment of $685.45) and payments on the installment contract in the total amount of $1,042.68.
We turn next to Greens’ contention that the trial court erred in charging the benefits of residing in the mobile home against them. We find no allegation in the pleadings nor any assertion in the pretrial proceedings made by DeVoe to the effect that residence benefits should be offset against damages awarded the Greens. We find no mention of offset in the portions of counsel’s argument transcribed in the record. Furthermore, there was no evidence offered at the trial nor any suggestion made at pretrial conference as to what the value of the benefits to the Greens of residing in the mobile home might have been. The question simply was not presented to the court. The first mention made was the voluntary finding by the trial court at the conclusion of its findings. Under such circumstances the finding was erroneous and must be set aside.
Greens further complain the trial court erred in denying punitive damages. The trial court found no facts which would support an award of punitive damages. Though the trial court apparently treated the matter as an action for damages for breach of contract rather than damages for a void sale, we find no showing in the record which justifies a change in the ruling against punitive damages. (Mann v. Tatge Chemical Co., Inc., 201 Kan. 326, 440 P. 2d 640; and Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 436 P. 2d 816.)
We turn next to defendants’ cross-appeal. Two principal issues are raised. First, defendants claim there is no evidence to support a judgment against DeVoe Treadwell as an individual. We agree. Both Mr. and Mrs. Green testified they purchased the mobile home from DeVoe Sales, Inc., that transactions before and after the sale were had with various representatives of DeVoe. The contract was signed DeVoe Sales, Inc. by DeVoe Treadwell, “Pres.” There is no evidence in the record that DeVoe Treadwell participated in the transaction in any manner other than in a representative capacity. DeVoe Sales, Inc. was identified as the dealer in the contract. Generally corporation officers are not individually liable upon con tracts wherein the corporate name is signed and is followed by the name of an officer of the corporation to which are added words denoting his representative capacity. (19 Am. Jur. 2d, Corporations, § 1345, p. 751.)
The judgment against DeVoe Treadwell as an individual must be set aside.
Next, DeVoe claims the trial court erred in not granting it a judgment for the deficiency of $748.87 which DeVoe claims remained after the repossession sale. This contention is based on the premise that the sale was valid as held by the trial court and judgment rendered against DeVoe only because the contract was: breached by DeVoe’s failure to procure insurance and thus it was entitled to a judgment for the deficiency. Since we have held the sale void, the premise falls and DeVoe’s contention in this regard has no standing.
Lastly, DeVoe claims the trial court erred in finding Greens had made a cash down payment in the amount of $250.45 rather than $50.00. In support of this contention DeVoe latches onto an answer of Gary L. Green upon cross-examination. Green was asked if he made all payments to the Rose Hill State Bank. He answered “All except $50 and the down payments which was a — a trade in that I gave to Devoe in person when I picked up the mobile home.’* The testimony conflicts with stipulation No. 5 of the pretrial order wherein the parties expressly stipulated the Greens had paid the sum of $250.45 together with credit of $435 for a trade-in of car and furniture for a total down payment of $685.45. The purchase agreement (plaintiffs’ Exhibit 1) and sales contract (defendants’ Exhibit 1) reflect a payment of $250.45, as we are best able to ascertain. We further note the matter was not called to the trial court’s attention when the decision was announced. We are unable to explain the discrepancy, but since there is evidence to support the trial court’s finding it will not be disturbed.
The cause is remanded with directions to set aside the judgment against DeVoe Treadwell and to enter judgment in favor of the plaintiffs (Gary L. and Dawn C. Green) in the amount of $1,728.13 against defendant (DeVoe Sales, Inc.). It is so ordered. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, Raymond W. Lieser, was charged in two separate cases with grand larceny, one charge being for the theft of eight Holstein bull calves, and the other for theft of thirty-seven hogs. In each case, Lieser waived preliminary examination in writing without being represented by counsel.
On September 22, 1960, the district court appointed John H. Morse and Harry C. Blaker, two qualified members of the Linn County bar, to represent the petitioner on both charges, and on October 6, 1960, Lieser appeared for arraignment, accompanied by his two attorneys. The journal entries filed in the two cases reflect that Lieser entered pleas of guilty to both charges and that after the allocutions were had in each case the state proceeded to introduce evidence of two prior convictions. Thereafter, the plaintiff was sentencd for a term of 17 years on the charge of cattle theft and to a term of 15 years for larceny of the hogs, the sentences to run concurrently.
In November, 1965, the plaintiff, pro se filed a motion for relief under K. S. A. 60-1507, raising the single issue that no notice was given of the state’s intention to invoke the provisions of the Habitual Criminal Act. The court overruled this motion on January 4, 1966, without holding an evidentiary hearing and without appointing counsel for Mr. Lieser.
In May, 1966, Lieser filed a lengthy handwritten document denominated “motion to rescind order of January 4, 1966, and for rehearing,” which we shall hereafter refer to as' a motion for rehearing. In this motion nine grounds were enumerated, only two of which pertained to the point raised in his motion to vacate.
On June 30, 1966, the trial court overruled Lieser’s motion for rehearing, reciting in its order that each of the points listed had been given consideration, even though only one was contained in the motion to vacate. The court then concluded, from the files and records of the case, that none of the points raised in the motion for rehearing were meritorious, but on the contrary, found that plaintiff was conclusively shown to be entitled to no relief.
Shortly thereafter, the plaintiff filed notice of appeal and asked for the appointment of counsel. Pursuant to such motion, Mr. M. K. Hoag, an attorney of Pleasanton, Kansas, was assigned to assist plaintiff in the appeal.
Three points are set out in the plaintiff’s brief:
“1. It was improper and error to hold that sentence was good upon petitioner’s plea of guilty when such plea of guilty was not freely and voluntarily made.
“2. It was improper and error to hold that sentence was good under the Habitual Criminal Act without the petitioner having been timely advised that such act might be invoked.
“3. It was improper and error to hold that sentence was good when the prosecution failed to advise the petitioner of his right to be represented by counsel at his preliminary hearing.”
Neither the first nor third points were raised in Leiser’s motion to vacate and thus strictly are not before this court. However, since they were among the points raised in the plaintiff’s motion for rehearing and, according to the trial court’s memorandum, were considered and rejected by the court, we will refer to them briefly.
As to point one it is significant to note that Lieser listed no wit ness by whom he expected to establish that his pleas were entered involuntarily. Neither the name nor the address of a single witness appears in either his motion to vacate, as required in paragraph 11 of the form set out in the appendix to Rule No. 121 (197 Kan. lxxvii ), or in his motion for rehearing. Nor does plaintiff, in his brief .filed in this appeal, indicate that witnesses are available to substantiate his claim of coercion. It may, therefore, be assumed that plaintiff expected to rely on his own testimony to establish his first point. We have often held, and reiterate once again, that under Rule No. 121 (g) the uncorroborated testimony of a movant is insufficient to sustain his burden of proof under K. S. A. 60-1507. See Chambers v. State, 199 Kan. 483, 430 P. 2d 241, and cases therein cited.)
Turning to point three, the plaintiff concedes this court has held repeatedly that one accused of crime has no constitutional right to appointed counsel at his preliminary examination, and that failure to provide him with counsel at that stage of the proceedings does not constitute error in the absence of prejudice to his substantial rights. (Lee v. State, 197 Kan. 371, 416 P. 2d 285; Addington v. State, 198 Kan. 228, 424 P. 2d 871.) There is no suggestion of prejudice to the plaintiff’s rights in this case. Furthermore, the plaintiff pleaded guilty to both charges of larceny. Under our decisions, a plea of guilty acts as a waiver of irregularities which may have occurred at the preliminary hearing. (Lee v. State, supra.)
The plaintiff’s principal contention of error, and the only error mentioned in his motion to vacate under 60-1507, is that notice was not given of the state’s intention to invoke the provisions of the Habitual Criminal Act (K. S. A. 21-107a) until after allocution. We have not been provided with a transcript of the sentencing proceedings but the journal entries indicate that the evidence of prior convictions was introduced following allocution.
This court has consistently held that a defendant is entitled to reasonable notice of the state’s intention to invoke the provisions of the Habitual Criminal Act before sentence is imposed thereunder but that the right to such notice is a right which may be waived. (State v. Fountaine, 196 Kan. 638, 414 P. 2d 75; Brown v. State, 198 Kan. 345, 424 P. 2d 576, and cases cited therein.)
Assuming for purposes of argument that the plaintiff had not been given notice until after the allocution, his claim of prejudicial error cannot be upheld. When Mr. Lieser was sentenced he was represented by two lawyers, both of whom are known by this court to have had long experience at the bar of this state, and there is nothing in the record to show any objection made to the evidence of former convictions when the evidence was offered. To the contrary, the state asserts in its brief that no objection was made to the introduction of that evidence, and this statement stands unchallenged.
Neither does the record show that the plaintiff has ever denied the prior convictions or denied that he is the person to whom the convictions refer. No contention has been advanced in this appeal that plaintiff was refused an opportunity either to be heard concerning the admissibility of the evidence or to refute the allegations that he had been previously convicted of felonies.
Under the circumstances detailed here, we believe this plaintiff must be deemed to have waived prior notice of intent to invoke the provisions of K. S. A. 21-107a. In a situation very similar to that obtaining in the instant action, the federal court in Browning v. Hand, 284 F. 2d 346 (1960) had this to say:
“. . . Assuming that prior notice of the hearing was not given, the defendant was present at the hearing with his attorney, and no contention is made that he did not have full opportunity to be heard on all matters under consideration and to controvert the allegation that he had been convicted of previous felonies which would make him subject to the penalties of the habitual criminal statute. The time for complaint was then, not now. . . .” (p. 347.)
The same court, speaking in Johnson v. State of Kansas, 284 F. 2d 344 (1960) also said:
“. . . There is nothing in the record to show that the petitioner denied these prior convictions or that he was not the same person described in the exhibits which were before the sentencing court. . . .” (p.346.)
See, also, Kelly v. State, 196 Kan. 428, 411 P. 2d 611; Burnett v. State, 199 Kan. 362, 429 P. 2d 923.
We find no error which may be said to have resulted in prejudice to the plaintiff’s substantial rights, and 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 burglary in the second degree (K. S. A. 21-514) and larceny in connection therewith (K. S. A. 21-524). Having twice previously been convicted of a felony he was sentenced to confinement on each charge for a period of 15 years (K. S.A. 21-107a), the sentences to run concurrently.
Narration in detail of the facts is unnecessary. It is sufficient to state that on the afternoon in question defendant entered through a closed door a home in North Topeka and made off with a cash box containing $356.00, being receipts from the operation of a tavern next door also owned by the owner of the home which was entered. He was seen by the daughter and wife of the owner. They alerted their father and husband, and also the sheriffs office. Defendant was seen driving a green and white car. While being pursued he drove the car into a dike, jumped out and ran. He soon was discovered hiding in weeds near a creek. The money was found tucked in his rolled-up sleeve. Quite “coincidentally” he volunteered the remark that he was helping search for the “so-and-so who had robbed the tavern” — although no one had mentioned the matter. He was taken to jail and later charged and convicted.
In this appeal five contentions are made — all of which we find to be without merit.
The first is that defendant was denied the effective assistance of counsel. The record shows that he was represented by his retained attorney at the preliminary examination. Apparently they had a disagreement and the attorney later was allowed to withdraw. On the morning the case was set for trial, at defendant’s request, Robert M. Brown, an experienced member of the Topeka Bar and former county attorney, was appointed to represent him. There was no request for a continuance, and, in open court, both defendant and Mr. Brown consented to proceed with the trial that afternoon. No showing whatsoever of any prejudice has been made.
Secondly, it is contended the state’s evidence failed to establish ownership of the premises in question and failed to show a sufficient “breaking and entering.” Neither contention is good. The ownership of both the home and money was established — and, as to the other point — see State v. Gatewood, 169 Kan. 679, 682, Syl. 1, 221 P. 2d 392.
The third and fourth contentions may be considered together. At the trial defendant and several of his witnesses testified that on the day in question he was under the influence and effect of narcotics — an inhaler type — and therefore was without the mental capacity to commit the offense. At the hearing on his motion for a new trial he sought to show alleged newly discovered evidence— that on the day in question he also was under the influence of another drug — morphine. In this connection he sought to introduce the testimony of a doctor as to the effect of the use of that drug. The trial court ruled such fact was not “newly discovered evidence” (K. S. A. 60-259 (a) Fifth.) and refused the evidence of the doctor. The ruling was proper. It was not newly discovered evidence. See State v. Oswald, 197 Kan. 251, 256, 257, 417 P. 2d 261.
Finally, it is argued that it was error to admit any portion of defendant’s “statement” into evidence. During the trial some reference was made concerning an alleged statement defendant had given to the officers. The record shows, however, that it was not offered in evidence and no part of it was presented before the jury.
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The opinion of the court was delivered by
Schroeder, J.:
By this action the petitioner, who is in custody of the Warden of the Kansas State Penitentiary serving sentences for the commission of crime, seeks to attack the validity of a judgment and sentence by proceeding under K. S. A. 60-260(b), since K. S. A. 60-1507 is inadequate and ineffective.
The trial court denied the petitioner’s motion on the ground that 60-1507, supra, was the petitioner’s exclusive remedy, and K. S. A. 60-260 does not apply. The petitioner’s motion asking that he be brought before the sentencing court for an evidentiary hearing was also denied by the trial court. Appeal has been duly perfected from these adverse orders.
On the 9th day of April, 1965, the petitioner was represented by counsel of his own choosing and entered a plea of guilty to the charge of burglary in the second degree, as defined by K. S. A. 21-520, after the county attorney dismissed counts 1, 2 and 4 of the information. He was sentenced to the Kansas State Penitentiary for a period of not less than five nor more than ten years pursuant to K. S. A. 21-523.
The record discloses a previous application by the petitioner for relief under K. S. A. 60-1507 was denied because he was serving time on other sentences and therefore entitled to no relief. (King v. State, 195 Kan. 736, 408 P. 2d 599.) (The maximum release date on a sentence from the district court of Reno County is July 11,1970, and the maximum release date on a sentence under the district court of Gove County is December 13, 1969.)
Here the petitioner’s application for relief under the provisions of K. S. A. 60-260 alleges that his plea of guilty to second degree burglary was involuntarily entered because of threats and coercion on three counts which he specifically sets forth.
Assuming these allegations would be sufficient to require an evidentiary hearing under a proceeding initiated pursuant to K. S. A. 60-1507, can this proceeding under K. S. A. 60-260 be maintained where relief under 60-1507, supra, is inadequate and ineffective?
The appellant contends because he is foreclosed from the use of 60-1507, supra, by reason of former convictions and sentences, he is entitled to resort to the use of K. S. A. 60-260(&) which leaves all avenues of relief open to the sentencing judge.
Article 2 of the new code of civil procedure has a prefatory section (K. S. A. 60-201) pertaining to the scope of the article. It reads:
“This article governs the procedure in the district courts of Kansas and original proceedings in the supreme court in all suits of a civil nature whether cognizable as cases at law or in equity with die exceptions stated in section 60-265.”
K. S. A. 60-260 is a part of Article 2.
The exceptions noted in the above quotation do not help the appellant. Section 60-260, supra, pertains to relief from judgment or order. Subsection (b) provides in part:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment. . . . Writs of coram nobis, ... are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this article or by an independent action.”
The source of law for 60-260, supra, is that part of the old code of civil procedure which appears in G. S. 1949, 60-3007 to 60-3009. The new provision has some differences but basically it provides relief under the same circumstances. A search of the cases interpreting and applying the provisions of the old code do not reveal any times in which the provisions were used in criminal cases.
A line of cases involving writs of error coram nobis, beginning with State v. Calhoun, 50 Kan. 523, 32 Pac. 38, and extending to State v. Chance, 187 Kan. 27, 353 P. 2d 516, might be considered as cases dealing with a similar situation to that alleged by the appellant in the instant case, but writs of error coram nobis are abolished by the legislature in 60-260, supra. For a discussion of writs of error coram nobis in Kansas cases, see State v. Miller, 161 Kan. 210, 166 P. 2d 680. Apparently the only case in which the writ of error coram nobis was successfully used by a prisoner undergoing confinement in a criminal case was State v. Calhoun, supra.
Chapter 62, K. S. A., deals generally and specifically with procedure governing the trial of criminal cases. In specific instances reference is made to the civil code. The rules providing for the impaneling and control of a jury in civil cases are incorporated in the code of criminal procedure as provided by K. S. A. 62-1412; compelling the attendance of witnesses and their testimony is governed by K. S. A. 62-1413; and the rules of evidence, as prescribed by Article 4, Chapter 60, apply to the trial of criminal cases.
K. S. A. 62-1414 provides for the setting aside of verdicts and awarding new trials for like causes and under like circumstances as in civil cases. This section gives the appellant some solace, but it can hardly be said to resurrect the writ of error coram nobis, or give the appellant authority to proceed against the state under 60-260, supra, for relief.
Section 62-1414, supra, was considered and ruled upon by the court in State v. Appleton, 73 Kan. 160, 84 Pac. 753. There the defendant had been convicted of a felony in a criminal case and attempted to use the provision which now appears as 62-1414, supra, in conjunction with the civil code provision which formerly appeared as G. S. 1949, 60-3005, to set aside the verdict and judgment and obtain a new trial, but the court denied relief.
G. S. 1949, 60-3005 does not now appear in this exact form in the new code of civil procedure, but it appears that the relief provided in this section is now incorporated in K. S. A. 60-260. In the Appleton case the question arose when a new proceeding was instituted by the state by service of a summons on the county attorney. The court reasoned that whether the proceeding be regarded as a common-law writ of coram nobis, or a statutory proceeding to obtain a new trial, the result must be the same, because the legislature has never in clear terms authorized the institution of such a proceeding against the state, citing Asbell v. State, 60 Kan. 51, 55 Pac. 338.
Although the case at bar does not arise in the same manner as the Appleton case, nor under the same statutes, it does have the status of a civil proceeding in which the state is a party defendant.
The legislature by enacting K. S. A. 60-1507 specifically authorized a prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released to initiate action in the sentencing court upon the grounds specified therein to vacate, set aside or correct the sentence. We hold this to be the exclusive statutory remedy authorizing a prisoner in custody under sentence of a court of general jurisdiction to make a collateral attack upon the sentence in a criminal case, and that K. S. A. 60-260 is not available to him for this purpose.
The petitioner was represented by counsel throughout this proceeding, both in the district court and on appeal to this court.
The judgment of the lower court sustaining the state’s motion for judgment on the pleadings and for summary judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by defendant (appellant) from a summary judgment in an action to recover $200,000 on a stock subscription contract or in the alternative on a promissory note. The question involved is whether there remained a genuine issue as to any material facts.
The facts as gleaned from the pleadings and developed by depositions and affidavits unfold a narrative of intricate financial maneuvers, the purpose of which may fairly be inferred to have been to inflate or "puff up” the common stock of a corporation to improve its marketability.
Supreme Petroleum, Inc., plaintiff (appellee), hereafter referred to as plaintiff or Supreme, is successor to the Dean J. Briggs Oil Development, Inc., referred to hereafter as Briggs Oil. In plaintiff’s petition it is alleged that Supreme is the same corporation as Briggs Oil, its name having been changed in the manner provided by law.
The filing date of the various pleadings is not shown in the record although required by Rule No. 6(g) (Rules of the Supreme Court, 197 Kan. Lxn). Such omission has added to the burden of this court in establishing, the chronology of the complex proceedings involved.
A petition was filed, presumably in 1962, in which Supreme pleads two causes of action in the alternative against defendant Briggs. The first cause of action is based on an alleged contract beween Briggs and Briggs Oil. Supreme claims there is $200,000 due it from Briggs for the issuance and delivery of 1000 shares of stock in Briggs Oil. In its second cause of action Supreme seeks judgment in the alternative on a $200,000 promissory note of Briggs payable to one Harold P. W. Wright.
Supreme alleges that Dominion Leaseholds Oil Co. Inc., (referred to hereafter as Dominion), became the owner of all of plaintiff’s (Briggs Oil — Supreme) outstanding capital and that as a part of the same transaction, Supreme advanced a check for $200,000 to Dominion which advanced a check in like amount to Wright who advanced a check in like amount to Briggs who gave to Wright the promissory note in question in the amount of $200,000 payable April 12, 1962, with interest at the rate of 6% per annum. Supreme further alleges it became the owner, and holder of the note by way of endorsements and without recourse from Wright (who became president and managing director of Supreme) through Dominion Inc., of which Wright was also president, then to plaintiff Supreme.
For his answer to Supreme’s first cause of action Briggs pleads payment on the contract by his personal check payable to Briggs Oil in the amount of $200,000 and dated April 12, 1960. A copy of the check is attached to the answer. In his answer to Supreme’s second cause of action Briggs pleads that the promissory note was made as an accommodation to Wright without consideration, with the understanding and agreement with Wright that the note would not be negotiated and that Wright would not attempt to collect the note. A copy of the alleged agreement is attached to the answer and reads as follows:
“EXHIBIT ‘B’
“April 12/60
“I will hold your note in tire amount of $200,000.00, not to be deposited. You do not owe me this money, and I will not attempt to collect it.
“/s/ H. P. Wright
“Witness: J. Frame.”
Frame was a business associate of Wright and Briggs, and also owned or controlled the Humber Investment Corporation. It appears from the record that Frame, Wright and Briggs concocted the plan of financial intrigue which resulted in this litigation.
Briggs further alleges that Wright agreed to cancel and return the note but has failed to do so. This allegation was stricken from the answer on the motion of Supreme. Briggs claims error in this regard. Supreme argues the allegation was properly stricken because it did not constitute a defense as against Supreme. We believe that at this stage of the litigation the allegation should not have been stricken in view of its connection with other allegations in the answer as to the relationship of Wright to Supreme, which will be discussed in the course of this opinion. Briggs further pleads in his answer as follows:
“Further answering defendant alleges that Harold P. Wright at the time of the subsequent endorsements of said note to the corporations named in plaintiffs petition was an officer and director of said corporations receiving said note by endorsements and said recipient corporations were not purchasers for value of said note in due course and knew of the agreement in writing that Wright had made on April 12, 1960, hereinabove referred to as defendant’s Exhibit B.”
In its reply to Briggs’ answer Supreme specifically denies that the agreement and understanding between Wright and Briggs as to the collection of the note relates to the note sued upon and attached to the petition.
At this point we pause to note that on the face of Supreme’s reply to Briggs’s answer a question of fact arises, i. e., did the agreement relate to the note sued upon.
The trial court’s order on Supreme’s motion to strike was entered on September 30, 1963. Subsequently the reply was filed. Thereafter, it appears that nothing took place in this litigation until pretrial proceedings were commenced on February 26, 1965. During 1965 depositions and affidavits were filed by Supreme and, on June 29, 1966, the trial court sustained Supreme’s motion for summary judgment.
Before proceeding to an examination of the propriety of the summary judgment we must note at the outset that as against a motion for summary judgment, pleadings are to be liberally construed in favor of the party against whom the motion is directed. (Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976.)
On the motion for summary judgment, in addition to the pleadings and attached exhibits, several depositions and affidavits, secured by Supreme, were before the trial court. In the deposition of Hugh Hutton, president of the First National Bank of Braman, Oklahoma, the bank ledger sheets of the accounts of Briggs and Helen B. Briggs, escrow agent, were introduced and pertinent entries explained. The deposition of Briggs disclosed to some extent the perplexing labyrinth of transactions between the parties which brought about this litigation. By the affidavits of C. A. Whitney, Jr. and Gerald Nelson, officials of two other banks, the ledger sheets of the accounts of Briggs Oil and Dominion, respectively, were presented. The account ledgers referred to reflect the deposits and withdrawals of the $200,000 item as it wended its circuitous route. The affidavit (date not shown) of W. S. Wallis, who is identified as president of Supreme when the affidavit was made, sets out the minutes of three meetings of the board of directors of Supreme and several journal entry items from the company’s account books. Briggs filed no counter-affidavits, however, in his deposition he was cross-examined at length by his own counsel.
The trial court wrote a memorandum of its decision, pertinent parts of which were set out in the journal entry of judgment.
It appears the trial court based its conclusion as to the first cause of action on the premise that even though Briggs delivered his personal check, dated April 12, 1960, for $200,000 to Briggs Oil it did not constitute a valid payment since it represented $200,000 put into the circuit of transactions by Supreme in the first instance. However, the trial court then goes on to say that Supreme “now holds a note for $200,000.00 executed by defendant instead of an item on its books for accounts receivable in the amount of $200,-000.00.” In conclusion the trial court finds “Defendant is indebted to the corporation in the amount of Two Hundred Thousand Dollars ($200,000.00), either under the contract, or on the note.” The final conclusion does not appear to be consistent with the findings of the court. If the note has replaced the account receivable item on Supreme’s books as found by the trial court, and this is shown by the journal entry items taken from Supreme’s ledger submitted in the affidavit of Wallis, then summary judgment, if proper in any respect, should have been rendered only on the promissory note. The accounts receivable item with reference to the subscription contract having been removed as intended by the parties by a “check kiting” arrangement, only the note remains as an asset on the books of Supreme.
At this point it becomes necessary to review further the evidence before the trial court in connection with both causes of action. Briggs owned oil and gas leasehold interests, equipment and other property subject to á mortgage. The properties were located in two counties in Oklahoma. Briggs decided to incorporate for a reason not disclosed. On January 1, 1960, he formed a corporation, with himself as sole owner and on January 3, 1960, submitted in writing a proposal to transfer to the newly formed corporation the oil properties mentioned plus $200,000 in cash in return for the issuance to him of 1000 shares of stock in the corporation. The proposal contained other provisions with which we are not concerned. The proposal was accepted by the directors of Briggs Oil. The date of acceptance is not shown. The record is not clear, but there is some indication from the deposition of Briggs that Wright was a participant in the activities of Briggs Oil at this stage.
The next development seems to have taken place at a meeting of Briggs, Wright and Frame in a New York hotel on April 12, 1960. It appears from the record that at this meeting the scheme was fabricated which became the subject of this litigation.
Apparently the parties desired to negotiate a sale of the Briggs Oil stock but were concerned with the appearance of the corporate balance sheet which, as of January 1, 1960, showed as assets — accounts receivable — Dean J. Briggs, $200,000, balanced by items of capital stock in the amount of 10,000 shares and capital surplus of $190,000. A plan was devised to remove the accounts receivable item. The execution of the scheme is reflected in the minutes of a special meeting of the board of directors of Briggs Oil held in Edmonton, Alberta, Canada, April 14, 1960. According to the minutes directors present were Harold P. W. Wright, president and managing director, and a Charles E. Hughes, secretary-treasurer. The absence of Dean J. Briggs, director, was noted. Wright proposed a plan to execute the scheme designed at the New York meeting, and the minutes reflect the following:
“Mr. Wright then reported on a suggestion which had been brought up during a discussion with Mr. John T. Frame of Toronto, whereby it was proposed that Mr. Harold P. W. Wright advance to Mr. Briggs the sum of $200,000 and Mr. Briggs would then pay the company the $200,000 owing by him; and the proposal whereby Dean J. Briggs Oil Development Inc. would loan $200,000 to Dominion Leaseholds Oil Co. Inc. and that Dominion Leaseholds Oil Co. Inc. would then advance the $200,000 to Mr. Harold P. W. Wright.
“Mr. Wright stated that he did not wish to enter into this chain of events unless it was considered necessary with no other alternative and considered in the best interest of the company and its shareholders.
“After a lengthy discussion on the subject, on a motion duly made, seconded and unanimously carried, it was besolved that the company advance to Dominion Leaseholds Oil Co. Inc., the sum of $200,000 provided that Dominion Leaseholds Oil Co. Inc. immediately advance the like sum of $200,000 to Mr. Harold P. W. Wright and that Mr. Harold P. W. Wright advance to Mr. Dean J. Briggs $200,000 subject to Mr. Briggs providing Mr. Wright with a demand note in the principal amount of $200,000 at 6% interest per annum due in April, 1962, further subject to Mr. Briggs immediately paying in full the $200,000 owing by him to the company.”
The scheme was carried out substantially as planned. Briggs Oil (Supreme) gave its check drawn by Wright as president on the First National Bank of Wichita, Kansas to Dominion. Dominion in turn advanced its check for $200,000 to Wright, who wrote a check for $200,000 which was deposited in the Helen B. Briggs escrow account in the Frst National Bank, Braman, Oklahoma, from this account $200,000 was transferred to the account of Dean J. Briggs in the same bank. Dean J. Briggs in turn wrote his check to Briggs Oil which was deposited to the Briggs Oil account in the First National Bank of Wichita, Kansas on April 29, 1960, completing the circuit.
The kiting operation through the various banks appears to have been accomplished without a mishap, except as to the First National Bank of Braman, Oklahoma. Here, according to the ledger exhibits and the testimony of Hugh Hutton, president of the bank, ledger entries on both the Helen B. Briggs account and the Dean J. Briggs account reflect a “wash out transaction” by which the debit and credit items, entered the latter part of April, were reversed and then reposted as a deposit in the Helen B. Briggs account as of April 29, 1960, and a withdrawal on May 3, 1960, and in the Dean J. Briggs account as a deposit and check withdrawal both on May 3, 1960. According to the testimony of Hutton the “wash out transaction” became necessary for the protection of the bank because the check from Wright on a Canadian bank had not cleared presumably for the reason that the Dominion Leaseholds check to Wright on the National Bank of Tulsa, Tulsa, Oklahoma, though dated April 12, 1960, had not been cleared to the credit of Wright’s account in the Toronto Dominion Bank, Edmonton, Alberta, Canada.
It is obvious, of course, that neither Briggs nor any one else was actually out of pocket because of the complete circuit made by the kited checks. The only material result with which we are concerned is shown in the entries made on the books of Supreme which reflect the effect of the transactions. A final ledger journal entry (No. 271), dated July 31, 1961, shows as an asset of the company, a note of Dean J. Briggs, endorsed without recourse, by Dominion Leaseholds Oil Co. Inc., in settlement of advance of May 31, 1960, by Briggs Oil to Dominion. The end result of the transactions recited shows that the alleged indebtedness of Briggs to Supreme since July 31, 1961, is in the form of a promissory note rather than an account receivable.
A pleader may allege two causes of action in the alternative as to the same subject matter but it is elementary, of course, that he will be limited to a single recovery. (Price, Administrator v. Holmes, supra.) It follows the judgment of the trial court must be construed to be on the promissory note in conformity with the findings of the court and under the facts as recited.
We then turn to the second cause of action concerning the note. As we have indicated, Briggs pleads in his answer that the note to Wright was without consideration, made as an accommodation to Wright, with the understanding that Wright would not collect the note, as evidenced by the agreement, signed by Wright and witnessed by Frame.
Supreme admits in its brief that one who takes a note with notice of any defenses takes the note subject to such defenses, and that a corporation is charged with the knowledge of its officers. The law of agency generally imputes the knowledge of agent to his principal.
Counsel for Supreme attempts to evade the effect of the rule by relying on an exception thereto in situations where the conduct and dealing of the agent are such as to raise a clear presumption that he will not communicate to the principal the facts in controversy, as in a case where the agent, acting nominally as such, is in reality acting in his own business or for his own personal interest and adversely to the interest of the principal, or for any reason has a motive or interest in concealing the facts from his principal. Counsel has stated in substance the rule as set out in 3 Am. Jur. 2d., Agency, §282, p. 644. However, turning to §284 of the same authority we find a qualification as to the applicability of the exception to the rule which we believe to be pertinent to the circumstances in the case at hand.
We quote from 3 Am. Jur. 2d, Agency, §284, p. 647:
“A qualification of the rule that the knowledge of an agent engaged in an independent fraudulent act on his own account is not the knowledge of the principal has been made where the agent, although engaged in perpetrating such an act on his own account, is the sole representative of the principal. In such case, if the principal asserts or stands on the transaction, either affirmatively or defensively, or seeks to retain the benefits of the transaction, he is charged with the agent’s knowledge. In such circumstances, the agents is said to be the alter ego of his principal, since he is merely the agency through whom the principal himself acted; and this ‘sole actor’ or ‘alter ego’ principle has been characterized as an exception to an exception — that is, it is an exception to the ‘independent fraudulent act’ exception to the general rule that the agent’sl knowledge will be imputed to the principal — and it brings the governing principal back, full circle, to the imputation of knowledge to the principal.”
Recourse to the qualification of the exception to the imputed knowledge rule, as in the case of the applicability of the general rule itself, remains subject to a showing of good faith by the third party seeking protection thereof. (3 Am. Jur. 2d, Agency §286, p. 648.)
Further discussion of the qualification of the applicability of the exception to the imputed knowledge rule, where the agent is sole actor or representative, may be found in 19 Am. Jur. 2d, Corporations, §1266, p. 672. The subject is also examined in 104 A. L. R., Anno., pp. 1246 and 1251; and 61 A. L. R., Anno., pp. 694 and 704.
In the deposition of Briggs and the minutes of the directors’ meeting of Supreme we find persuasive evidence that Wright was not only acting as an officer and agent of the principal (Supreme) but for all practical purposes he was the principal immediately prior to and during the entire course of the transactions recited. We note from the record that Wright attended a meeting in New York with Briggs and Frame when the plan was devised on April 12, 1960. According to the minutes of the directors’ meeting of Supreme (Briggs Oil) in the company’s office in Wichita at 10 a. m., April 14, 1960, Wright was present. On the resignation of Helen B. Briggs as a director Wright was elected to fill the vacancy and later at the same meeting elected president of the company. According to the minutes, a special meeting of the board of directors was held in Edmonton, Alberta, Canada, on April 14, 1960, at the hour of 12 noon. Mr. Harold P. W. Wright, president and managing director, was listed as present. The minutes note the presence of Mr. Charles E. Hughes, secretary-treasury, and the absence of Dean J. Briggs, director. We note that according to the minutes the meeting in Edmonton convened two hours after the meeting in Wichita and that Wright, astonishingly was at both meetings.
The' minutes of another directors’ meeting on March 29, 1961, in Edmonton, Alberta, Canada, are set out in the record. The minutes of the last meeting referred to show a resolution was adopted that the company accept the note of Briggs, endorsed by Wright to Dominion. The minutes also read “Mr. Wright fully disclosed his interest in the matter and did not vote on the question.” At this time Wright had been president of Supreme for almost a year.
In our examination of the minutes of the directors’ three meetings referred to we find evidence indicating that Wright, acting as president and managing director of Supreme, was in fact “sole actor” or “alter ego” of his principal thereby bringing this case within an exception to the exception of the imputation of the knowledge rule above quoted. The question whether or not such evidence is sufficient to establish the point to the satisfaction of a trier of facts is not at issue at this stage of the litigation.
This being the case it cannot be said that no genuine issue as to any material fact remained under the defenses raised by the answer of Briggs.
We are mindful that in applying the summary judgment rule, a question of fact created by allegations, standing alone, is not sufficient to control the application. In discussing the principle in Meyer, Executor v. Benelli, 197 Kan. 98, 415 P. 2d 415, we said:
“. . . The rule was intended to permit a party to pierce the allegation of facts in his opponent’s pleadings by affidavits and discovery, thus controlling the formal issues presented by tire pleadings. (Citing cases.)” (pp. 100, 101.)
However, in considering the effect of affidavits and discovery, we are compelled to give to the party, against whom summary judgment is sought, the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019, and cases cited therein.)
Considering the answer of Briggs within the framework of the rules stated it cannot be said that issues raised by the pleading in question have been so pierced as to absolve conclusively the issues presented. It must be conceded that from the record presented the position of Briggs as to his own good faith is subject to question; and he may have assumed a heavy burden in undertaking to estab lisia the allegations of his answer but he has a right to carry it. (Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976.)
We also take note that Briggs filed no counter-affidavits or depositions. However, in this connection we must consider what was stated in Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964:
“A summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over the facts. (United States v. Kansas Gas and Electric Company, 287 F. 2d 601 [10th Cir. 1961].) A motion for summary judgment cannot be made a substitute for a trial either before a court or jury, and a plaintiff who states a cause of action which entitles him to a trial by jury is entitled to have his case tried in that way and cannot be compelled to submit his evidence in the form of affidavits in resistance to a motion for summary judgment and have the issues determined by such motion. (United States v. Broderick, 59 F. Supp. 189 [D. C. Kan. 1945].)” (p. 211.)
The same principle must be applied to a defendant who states a defense in his answer.
Since the enactment of K. S. A. 60-256(c) this court has consistently adhered to the rule that a motion for summary judgment under the provisions thereof is to be sustained only where the record shows there is no genuine issue as to any material fact. (Wilson v. Deer, 197 Kan. 171, 415 P. 2d 289, Secrist v. Turley, supra; Brick v. City of Wichita, supra.)
In commenting on the rule stated in Secrist we said:
“In the final analysis a court should not determine the factual issues on a motion for summary judgment but should search the record for the purpose of determining whether a factual issue exists. . . .” (p.575.)
From the record before us we find the defendant is entitled to a trial on the issues (1) whether the note sued on was given for consideration or as an accommodation; (2) whether the agreement between Briggs and Wright relates to the note in question; and (3), if so, was it given under such circumstances as to amount to a release of the liability of Briggs to Wright and the issue included therein as to whether the relationship of Wright and Supreme was such that Wright’s knowledge amounted to knowledge by Supreme.
In accordance with what has been said the judgment must be reversed with directions to overrule the plaintiff’s motion for summary judgment. It is so ordered. | [
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The opinion of the court was delivered by
Price, C. J.:
In each of these two consolidated appeals, the appeal is by plaintiffs from an order dismissing their action.
We first discuss case No. 44,777, which involves property in Ellis county.
On December 27, 1965, plaintiffs brought an action in Ellis county under the provisions of K. S. A. 79-2005, to recover taxes paid under protest. That action is still pending and is the subject of the appeal in this court in Cities Service Oil Co. v. Kronewitter (case No. 44,775) this day decided. Reference is made to the opinion in that case for the factual background of the matter.
On February 3, 1966, plaintiffs filed this action (case No. 44,777) in Shawnee county naming as defendants the same state and county officials as are defendants in the mentioned Ellis county case. They denominated this action as one brought under K. S. A. 60-907 (a), winch provides that injunctive relief may be granted to enjoin the illegal levy of any tax, charge, or assessment, the colllection thereof, or any proceeding to enforce the same. They further contend that venue is properly in Shawnee county because it was there that the State Board of Tax Appeals — sitting as the State Board of Equalization — made the ruling the enforcement of which is sought to be enjoined [K. S.A. 60-602 (2)].
On February 23, 1966, all defendants joined in a motion to dismiss this action on the grounds (1) the court had no jurisdiction over defendants, and improper venue; (2) that the petition failed to state a claim upon which relief could be granted to the plaintiffs against defendants; and (3) that the same action is pending between the same parties in the county (Ellis) wherein the property described in the petition is located. In the alternative, the motion sought summary judgment for defendants on the ground there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law. Attached as an exhibit to the motion to dismiss was a copy of the petition in the Ellis county case above referred to.
On June 13, 1966, the district court of Shawnee county sustained the motion to dismiss the action on the ground it was duplicitous of the pending Ellis county action. In its ruling the court noted that the same end result was sought in both cases — relief from alleged excessive tax assessments.
Plaintiffs have appealed from the order of dismissal.
It is unnecessary to a decision in this case to discuss questions concerning the alleged lack of jurisdiction of the district court of Shawnee county; whether the petition states a cause of action against defendants; questions pertaining to venue; the local aspects of property tax assessments, and whether injunction will lie to enjoin a past act. We limit our discussion and decision to the question whether this action is duplicitous of the Ellis county case — that being the ground on which it was dismissed.
We agree with the trial court’s conclusion that irrespective of the language employed in the petitions, the same end result is sought in both cases — recovery of alleged excessive taxes which were paid under protest. On oral argument of this appeal counsel for plaintiffs frankly admitted such to be the fact, and stated that this action was filed in Shawnee county due to some uncertainty as to the exact proper procedure to be followed. Here the parties, the facts, and the ultimate relief sought — are identical to the parties, facts, and the ultimate relief sought in the pending Ellis county case. Clearly this action is duplicitous of that action.
In the early case of Mullen v. Mullock, 22 Kan. 598, 603, it was said that the law is so watchful against all vexatious suits that it will not suffer two actions of the same nature to be pending for the same demand. To the same effect is Bond v. White, 24 Kan. 45, 48, 49. The same principle also was recognized in Birmingham v. M. & W. Mining Co., 163 Kan. 66, 180 P. 2d 615.
Case no. 44,776 involves property in Haskell county, and the parties are identical to the parties in a pending action brought in that county under the provisions of K. S. A. 79-2005, to recover taxes paid under protest. Insofar as this appeal is concerned, the facts, questions and ruling are the same as those in case no. 44,777. What has been said and held in case no. 44,777 applies equally to case no. 44,776.
The order of the district court of Shawnee county dismissing each of the actions was correct, and in each case the judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action for damages resulting from injuries sustained from a fall down the stairs extending from the first floor to the basement of a retail department store.
The defendant, Ramsay’s Inc., operates a retail department store in Atchison, Kansas. The store building has a basement floor which is reached from the first floor by a stairway facing to the west. The stairway extends ten steps down to a landing, makes a turn and continues a few more steps to the basement floor. There is a handrail for the entire length on the south side of the stairway. The handrail starts at floor level on the north side. The stairs are made of oak with metal nosing on the foreward edge of the treads held down with counter sunk screws.
On March 10, 1964, plaintiff went to the Ramsay store with her daughter, Doris Noble. Doris went to the basement floor and later plaintiff started down. The plaintiff testified:
“. . . I decided to go downstairs while my daughter was downstairs. I had been back at the dress department looking for a dress, this was North from the stairs. When I went towards the front of the store I just walked back there to go down the stairs and I caught my heel on something there at the head of the stairs, the metal strip that was across the head of the stair before I took the first step.
“Q. All right. What makes you think you caught your heel? What makes you think you fell over something?
“A. I felt a tug at my heel as I stepped there.
“Q. I see. What did you do, then?
“A. Well, that’s when I fell.
“Q. I see. Please tell this Jury whether you attempted to grab for a handrail?
“A. Yes, I tried to — there is just a part of the railing there on the right-hand side, so I just really tumbled down the stair.”
Plaintiff was taken to the hospital in an ambulance and remained there for 29 days. She was treated for compression fracture, of the seventh dorsal vertebra, lacerations of the scalp and other minor lacerations and bruises about the face.
Other facts will be presented as we consider the legal issues to which they apply.
The plaintiff brought an action against Ramsay’s Inc. for damages as a result of the injuries sustained in the fall down the staffs. The trial resulted in a jury verdict in favor of the plaintiff and against the defendant for $17,500. A motion for new trial wan overruled and the defendant has appealed.
The appellant raises numerous trial errors. We will first consider those objections going to the admissibility of evidence.
Appellant contends that the trial court erred in admitting as an exhibit an artist’s sketch of a thoracic vertebra. The exhibit showed four separate sketches.
The exhibit was introduced through appellee’s physician and surgeon. His narrated testimony presents the facts involved in this issue. We quote:
“. • . I attended Gladys Van Weldon on March 10, 1964. I have attended her continuously since that time. I treated her for a compression fracture of the seventh dorsal vertebra of her back, and also laceration of the scalp and other minor lacerations and bruises about the face. I have seen what has been marked for identification purposes as plaintiff’s Exhibit No. 9. I recognize the documents which are attached to that large chart. There are illustrations of the vertebra, first showing the generalized anatomy, one showing the illustration, of the fractured vertebra, the third one shows the resulting —shall we say, deformity of the vertebra after the fracture and the fourth one is a composite of two and three. The fourth illustration factually and truthfully represents the x-rays that were taken under my supervision on March 10, 1964 and September 22, 1965, and were taken from the x-rays plates submitted. I compared them.
“I did not prepare this sketch. Document No. 1 on this chart, that is the one on the left, does not refer to this patient. The second document from the left, according to the artist, was taken from the x-ray. The third one likewise was supposed to be taken from a later x-ray. I do not know myself whether the second and third documents were taken from the x-rays. The x-rays were submitted to the artist. I compared the x-rays and the sketches and they do correspond to the illustrations as shown in the x-ray.”
We see no error in allowing the physician to use sketches of the thoracic vertebra to illustrate appellee’s injury where they accurately portrayed that which was competent to describe in words. We see no reason to distinguish between medical illustrations, and charts and drawings to establish other physical facts. If the sketch be a substantially correct reproduction of the injured part of the anatomy it should be admissible within the trial court’s discretion. The physician testified:
“. . . I compared the x-rays and the sketches and they do correspond to the illustrations as shown in the x-ray.”
A fractured vertebra is not discernible except through x-ray pictures which a layman is not qualified to analyze. A fracture line may not even be discerned by the naked eye of an expert. Certainly a substantially correct reproduction which is clearly visible is helpful as an aid to a verbal description of the injured vertebra.
We are cited no cases where this specific question has been passed on by this court and our limited search has disclosed none. However, the general rule appears to be well established. In 29 Am. Jur. 2d, Evidence, § 805, p. 894, we find this statement:
“Medical or anatomical charts showing a human skeleton or a part of a human body have been admissible, in the discretion of the trial court, in a number of cases. The test as to the admissibility of medical and anatomical charts is their capacity to inform the jury, and where they are accurate and fully explained, they are admissible even though abstract.
“Both in criminal and civil cases, where the problem of the admissibility of a skeleton or model of a human body or a part thereof has been presented, the courts are in apparent agreement that if the jury or court will be enlightened by the introduction of such evidence, it is admissible within the trial court’s discretion. Such a model, if otherwise relevant and admissible, may be received in evidence even though it may be of a shocking or gruesome character.”
We must conclude that the trial judge did not abuse his discretion in admitting the anatomical sketch as an exhibit.
Objection is made to the admission,' in evidence as exhibits the Rehabilitation Code of the Urban Renewal Area of Atchison, Kansas, and the Uniform Building Code.
The Uniform Building Code was incorporated into ordinances of the city of Atchison. The two codes contained the same language insofar as they covered the issue in controversy except the Uniform Building Code contained a grandfather clause.
The specific factual issue involved was the proper construction of the stairway where the accident occurred. The two codes mentioned above required that stairs exceeding 44 inches in width “shall have handrails on both sides.” As we have previously noted the south or lefthand side of the stairs had a satisfactory handrail, while on the north or righthand side the handrail started at the floor level.
The trial court admitted the exhibits, not as proof of the violation of a city ordinance, but rather to show a standard for a safe stairway.
The appellant’s chief objection to tire exhibits is a claim of surprise. Surprise is based on appellant’s contention that at the pretrial conference the appellee claimed negligence in connection with the construction of the treads of the stairway and made no mention of faulty handx-ails.
The difficulty in considering this objection is the fact that no record was made of the pretrial conference and the results were not reduced to judgment. Under such circumstances a pretrial conference accomplishes nothing definite. Rather than limit issues it serves as a vehicle for additional argumentative issues as to what was purported to be done. It is the responsibility of both trial judge and counsel to see that a proper record is made of a pretrial conference and the results properly noted by judgment or order.
The trial court admitted the Urban Renewal Rehabilitation Code on the basis of appellant’s opening statement. The Uniform Ruilding Code contained the same language. Appellant’s opening statement reads in part:
“Our evidence will show that in January 7, 1965, the Ramsay Store was issued a certificate by the officials of our town, certifying that your store had been inspected and complied with your plans and requirements of your Urban Renewal problem. You’re issued by Kenneth Jorgensen and your Urban Renewal director. Evidence will also show that the Ramsay Store complies in all respects with your City Ordinances, insofar as design and handrails are concerned on the staircase.”
Appellant suggests that an opening statement is not a substitute for pleadings or material evidence. Perhaps not but it may well tend to dispose of a claim of surprise.
It should also be noted that appellant admits that two weeks before the trial it was informed by appellee that evidence of defective handrails would be presented as one of the claims of negligence. It would appear that the appellee, by the introduction of the two codes, did nothing more than introduce the facts which appellee stated it was going to prove.
We have not ignored at this point appellant’s suggestion that appellee stated in a deposition that she approached and started down the stairway from the south, or left, but testified at the trial she approached and started down the stairs from the north, or right. The confusion between the deposition and the testimony was a question for the jury in the absence of a pretrial determination.
Objection is made to the admission of the testimony of appellee’s physician and surgeon as to x-ray interpretations and information obtained from another doctor.
We find no merit in this contention. The x-ray interpretation to which the objection was made was that of a roentgenologist to the effect that there was a compression fracture involving the T7 dorsal vertebra. The interpretation of the roentgenologist was contained in a hospital report. The report was introduced in evidence without objection.
The witness testified that in his opinion based upon his own examination that the appellee was suffering from a compressed fracture of a vertebra. His opinion that it was the T7 vertebra was based on the information contained in the hospital report which was in evidence — the x-ray interpretation by the roentgenologist.
An expert witness may base his opinion on competent evidence in the case. In Klein v. Wells, 194 Kan. 528, 539, 400 P. 2d 1002, we stated:
“It has long been settled that an expert witness may base his opinion upon matters within his personal knowledge or observation, or upon competent evidence in tire case, or upon both. . . .”
The appellant contends the trial court abused its discretion in taking judicial notice of the fact that the building involved in the litigation was located within the Urban Renewal Area of Atchison, Kansas.
This dispute arose in connection with the objection to the consideration of the Rehabilitation Code of the Urban Renewal Area. At the close of all the evidence the appellant moved that the exhibit be withdrawn from the consideration of the jury. One of the reasons given was lack of evidence to establish the fact that Ramsay’s Department Store was in the urban renewal area. At the request of appellee the court stated that it would take judicial notice of such fact.
We find no error in the decision of the trial court to take judicial notice of such fact. The rules of evidence, K. S. A. 60-409, provide in part:
“(b) Judicial notice may be taken without request by a party, of (1) . . . duly enacted ordinances and duly published regulations of governmental subdivisions or agencies of this state, and . . . (3) such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, . . .”
Urban renewal areas are created by municipal resolutions or ordinances. (K. S. A. 17-4746.) It would also appear that the interest created by an urban renewal area leaves little doubt that its boundaries are generally known within the territorial jurisdiction of the court.
The purpose of the judicial notice rule, and it would appear to be a wholesome one, is to eliminate the necessity of taking the time of the court and jury to make formal proof of a fact which cannot be disputed.
The appellant contends that the trial court erroneously permitted appellee to read a part of a letter on cross-examination but refused to permit it to introduce the remainder.
The facts out of which this controversy arose present a procedural question rather than a question of evidence.
The appellee was cross-examining an architect who appeared as a witness for appellant. The appellee read a paragraph from a letter which another architect had written to the attorney for appellant and asked the witness if he agreed with it. The witness replied that he did. Appellant objected to the partial offer and offered the entire letter in evidence. Appellee objected to the appellant interfering with his cross-examination. The introduction of the entire letter at that point was not permitted. Appellant states:
“We believe it is generally recognized law that if a portion of a letter or conversation is brought before the jury the other side is entitled to have placed in evidence all that was said or written in the particular conversation or correspondence. . . .”
We have no quarrel with appellant’s suggestion. However, one party cannot interrupt another party’s cross-examination for the purpose of starting its redirect examination. If appellant desired to introduce the letter in its entirety he should have done so at the close of appellee’s cross-examination. Having failed to do so we Snd no ground for complaint. The order of proof is in the discretion of the trial court. In State v. Neff, 169 Kan. 116, 218 P. 2d 248, we held in paragraph 8 of the syllabus:
“It is always desirable that there should be an orderly presentation of proof. Rules pertaining thereto, however, are directory and not mandatory. An alteration in the prescribed customary order of proof rests in the sound judicial discretion of the trial court and the court’s ruling will not be disturbed on appeal unless its exercise of discretion is abused.”
Finally, the appellant complains of the sufficiency of the evidence to establish any negligence on its part and also claims that the verdict was excessive. It would serve no useful purpose to extend this opinion by a review of all the evidence on these issues. It will suffice to say that there was substantial competent evidence to support the verdict and its weight was a question for the trier of facts, not this court on appellate review.
Although we have not specifically mentioned every phase of the numerous trial errors raised by industrious and able counsel for appellant they have not been overlooked.
A careful examination of the record discloses no trial errors which were prejudicial to the rights of appellant.
The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from an order of the Reno county district court denying a motion filed by the petitioner, Frank E. Minor, Sr., pursuant to the provisions of K. S. A. 60-1507.
The judgment and sentence, which petitioner challenges in the instant case, was affirmed on direct appeal by this court in State v. Minor, 195 Kan. 539, 407 P. 2d 242. In his present pro se motion, petitioner alleges several trial errors as grounds for relief. The district court summarily denied the motion, without an evidentiary hearing, on the basis that such a motion could not be used as a substitute for a second appeal.
Petitioner, with the aid of the same court-appointed attorney who represented him at his preliminary hearing, trial, and on direct appeal, raises three points, namely, (1) the trial court erred in allowing the petitioner to be convicted upon the testimony of an accomplice, (2) the asking of a question concerning the petitioner’s prior criminal record, to which the county attorney knew the defense would object, was an indirect comment on the petitioner’s silence as to his past, and in effect, forced petitioner to incriminate himself, in violation of the Federal Constitution, and (3) the asking of an objectionable question concerning the petitioner’s character was so prejudicial as to deny him due process of law under the Federal Constitution.
Rule No. 121 (c) (4) (194 Kan. xxvn) specifically prohibits the use of a 60-1507 proceeding as a substitute for direct appeal involving trial errors, or as a substitute for a second appeal. The rule requires that trial errors be corrected on direct appeal; but in the event no appeal is taken, trial errors affecting constitutional rights may be raised in this type proceeding only if there are exceptional circumstances excusing the failure to appeal.
Petitioner’s three points each relate to trial errors which could have been raised in his former direct appeal. In fact, the second and third points concern one of the specifications of error decided adversely to the petitioner in the prior appeal. The only difference is that he now claims the alleged trial error — cross-examination concerning his prior criminal record — affected his constitutional rights. Petitioner was accorded the right to raise any and all trial errors in his direct appeal. Inasmuch as he has already exercised that right, at which time all alleged trial errors were to be presented, he has not brought himself within that portion of Rule No. 121 (c) (4) which permits one in custody to raise for the first time in a 60-1507 proceeding trial errors affecting constitutional rights. The generous use now attempted of our postconviction statute as a substitute for a second appeal is forbidden. A similar situation arose in Miles v. State, 195 Kan. 516, 407 P. 2d 507, wherein we said:
“In this case plaintiff, through his own counsel, appealed from his conviction and raised such points as he considered had merit. They were answered adversely to him. In the matter presently before us plaintiff is not only attempting to raise trial errors which could have been, or were raised in his former direct appeal, but he also is attempting to convert this proceeding into a substitute for a second appeal. We have no question here of his right to raise trial errors which could have been raised upon appeal provided there were exceptional circumstances excusing the failure to appeal in the first place — for he did appeal.” (p. 518.)
Also, see Carter v. State, 199 Kan. 290, 428 P. 2d 758; Brown v. State, 198 Kan. 527, 426 P. 2d 49; and Hanes v. State, 196 Kan. 404, 411 P. 2d 643.
What has been stated also precludes our considering petitioner’s first point. In addition, the point was not mentioned in petitioner’s motion or presented to the district court. Under such circumstances, we are in no position to consider the question. This court will not for the first time consider a matter on appeal which has not been presented to the trial court. (Tate v. State, 196 Kan. 435, 411 P. 2d 661, and cases therein cited.)
The district court properly denied the petitioner’s motion, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
The appellant has filed a motion for rehearing. We have considered the motion and find no issues which were not fully considered in the original case. The motion for rehearing is therefore denied.
However, appellant contends we did not give consideration to K. S. A. 62-1301 in determining whether he was granted a speedy trial. The point was so obviously without merit that we did not give it specific attention. That part of K. S. A. 62-1301 applicable here provides:
“. . . If the defendant appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause.”
The term during which appellant was informed against was passed for cause. The information was filed July 8, 1965, and no jury cases are tried in Wyandotte County during the heat of the summer term. Also, appellant made no request for trial during such term and no complaint can be made of failure to have a trial at the term the information is filed unless so requested. (In re Garner, 134 Kan. 410, 412, 5 P. 2d 821; State v. Aspinwall, 173 Kan. 699, 708, 252 P. 2d 841.) Furthermore, it appears from the record and the statement of appellant’s one-time counsel that appellant took an active part in having the trial of the case delayed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action was initiated in Butler county by the plaintiff, R. C. Green, against the defendant, Hubert Kensinger, for a partnership accounting. From an order of the district court sustaining the defendant’s motion for summary judgment, plaintiff has appealed. The only question is whether or not the trial court erred in sustaining the defendant’s motion.
On December 8, 1964, the present action was filed. Plaintiff’s petition alleged defendant was a resident of Los Angeles county, California, and that the parties in 1957 became associated as partners in the business of buying and selling trust deeds, and in so doing, transacted business in Butler county, Kansas, where plaintiff alleged the causes of action arose. The petition was framed in three counts, each for monies alleged to be due and owing plaintiff by the defendant from the partnership operation: Count I — for the balance due plaintiff in the way of compensation pursuant to an agreement between the parties and based upon the gross sales of trust deeds by each of them; Counts II and III — for separate advancements made by the plaintiff to the defendant, for which sums the defendant had never accounted to the plaintiff. Further, plaintiff requested an accounting by the defendant “together with such other and further relief as in equity may be just.”
A prior action filed in Wilson county district court, and involving these same parties, was before this court in Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122. There, the plaintiff, Green, sought recovery against Kensinger for two alleged loans arising out of the same business association as here. The findings and conclusions of the trial court, which were approved by this court, revealed the nature of the business and the relationship of the parties. It was determined that the two transactions there sued upon, which, incidentally, are identical to those set forth in Counts II and III here, were not loans but were part and parcel of the business of buying and selling trust deeds; that the parties were partners; and since the action was not one for an accounting, the court could not determine if one partner was indebted to the other, and plaintiff was denied relief.
In the present action defendant filed an answer in which he admitted his residency was in California, that the association was in the nature of a partnership, that such partnership had terminated, but specifically denied any business was transacted by or on behalf of the partnership in Butler county, or that the alleged causes of action arose in said county. In addition to denying the amounts alleged to be due the plaintiff, and by way of further defense, the defendant pleaded lack of jurisdiction of the person and subject matter, improper venue in Butler county, res judicata, and the statute of limitations.
After issues were joined and plaintiff had answered interrogatories posed by the defendant, defendant filed a motion for summary judgment which was sustained on the grounds of lack of jurisdiction over the subject matter and person of the defendant, improper venue, res judicata as to Counts II and III, and the action was barred by the statute of limitations.
Plaintiff now appeals and raises three points, one of which is dispositive of this case — namely, the court erred in sustaining the motion for summary judgment, for the reason the action was barred by the statute of limitations. Although the trial court apparently sustained the motion on the ground that each of the three counts of plaintiff’s petition was individually barred by the statute, we believe plaintiff’s action essentially is one in equity for a partnership accounting, which includes the individual transactions referred to in the three counts. Thus the question more properly stated is whether or not plaintiff’s cause of action for an accounting is barred by the statute.
Plaintiff urges that since he did not have access to the books and records of the partnership, he does not know the amount due and owing him from the defendant, and thus no cause of action for an accounting has yet accrued. For the reasons hereafter stated, we believe plaintiff’s contention cannot be upheld under the facts and applicable law.
In ruling on the defendant’s motion, the trial court had before it the pleadings and plaintiff’s answers to interrogatories.
In his petition plaintiff alleged:
“Defendant has indicated to plaintiff that he considers the parties’ business relations at an end, but has failed and refused and does now fail and refuse to render any accounting to plaintiff and refuses to pay what is due from defendant to plaintiff as a result of the parties’ business association. . . .”
Plaintiff’s answers to interrogatories were as follows:
“I do not claim that to date the exact amount due and owing myself from the defendant in the accounting prayed for has in total been ascertained. I have not had access to the books and records of the partnership and, therefore, do not know the total amount of the sales and without this knowledge cannot make a determination as to the exact amount presently due. . . .
“In March of 1959 the defendant culminated a long series of acts wherein he failed to account to me or to otherwise carry out the terms of our business association together. In this particular instance, in March of 1959, at West [Covina], California, defendant finally and completely refused to cause title to a 1959 Thunderbird automobile to be delivered to me as per an earlier agreement that the same would be taken by me in partial satisfaction for an advance ment made by me to defendant. Thereafter defendant generally faded and refused to comply with the terms of the business association agreement between myself and defendant and refused and continues to refuse to account to me for monies due and owing me as prayed for in my petition, or to otherwise recognize the existence of a partnership. . .
Defendant, in his answer, admitted the business relationship between the parties had come to an end, and alleged the relationship was terminated and abandoned by the plaintiff in February, 1958.
When ruling on a motion for summary judgment, a court must resolve against the movant any doubt as to the existence of a genuine issue of material fact; the evidentiary material submitted by the party opposing the motion must be taken as true, and such party must be given the benefit of all reasonable inferences that may be drawn from such material. (Jarnagin v. Ditus, 198 Kan. 413, 424 P. 2d 265.)
Let us, in light of the foregoing rule, examine the evidentiary facts before the trial court. It is not disputed there was a complete cessation of the partnership and partnership business. According to the facts alleged by the plaintiff, which facts must be accepted as true, the partnership was not only dissolved but was also terminated in March 1959. Nothing was set forth which would warrant an assumption that the partnership accounts were unsettled or that a winding up of partnership business was necessary. It is clear that after March 1959, the defendant refused to account to the plaintiff for monies alleged to be owing, and the only thing remaining to be done was for the court to determine the amount due and owing as between the partners. It necessarily follows there was no genuine issue of material fact before the district court regarding the status of the business and the relationship of the partners after March 1959.
The present action was filed December 8, 1964 — over five years after the events of March 1959. It is conceded that at all times the plaintiff and defendant were and are residents of the state of California.
Is the Kansas or California statute of limitations applicable to the facts of this case?
The general rule in respect to limitation of actions is that the law of the forum governs, and if any exceptions to this rule are to be recognized, such exceptions must be found in the law of the forum itself. (Leonard v. Kleitz, 155 Kan. 626, 127 P. 2d 421; Nickel v. Vogel, 76 Kan. 625, 92 Pac. 1105.) As an exception to the rule, we have K. S. A. 60-516, which contains identical language to that formerly found in G. S. 1949, 60-310:
“Where the cause of action has arisen in another state or country, between nonresidents of this state, and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state.”
Such statutes are frequently referred to as “borrowing statutes,” and have been enacted in nearly all the states. (Goodrich on Conflicts [4th Ed. by Scoles] p. 152; Annos. 75 A. L. R. 203, 149 A. L. R. 1224.)
Under K. S. A. 60-516 the statute of limitations of California is applicable if the cause of action arose in that state. In determining where a cause of action arises, this court in the early case of Bruner v. Martin, 76 Kan. 862, 93 Pac. 165, held:
“The words ‘where the cause of action has arisen in another state,’ as used in the statute of limitations (Code § 22; Gen. Stat. 1901, § 4450 [now K. S. A. 60-516]), mean when the cause of action has accrued in a foreign state, or, in other words, when the plaintiff has the right to sue the defendant in the courts of such foreign state; and they have no reference to the origin of the transaction out of which the cause of action arose.” (Syl. f 1.)
The rule announced in Bruner has been followed in subsequent decisions of this court, including Naugle v. Naugle, 89 Kan. 622, 132 Pac. 164; Shearer v. Insurance Co., 106 Kan. 574, 189 Pac. 648; Hornick v. Catholic Slovak Union, 115 Kan. 597, 224 Pac. 486; Swift v. Clay, 127 Kan. 148, 272 Pac. 170. Thus in the instant case, if the plaintiff had the right to bring an action for a partnership accounting against the defendant in the California courts, the cause of action not only accrued in that state but also arose there, and the provisions of K. S. A. 60-516 control.
In ascertaining when a cause of action accrues in a case involving the statute of limitations of a sister state, resort must be had to the laws of that state. Pertinent statutes of the California Corporations Code Annotated (Deering, 1962) are as follows:
“The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.” (§ 15029.)
“The right to an accounting of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.” (§ 15043.)
Ordinarily, the right to an accounting is established by a showing that the partnership has been dissolved. (38 Cal. Jur. 2d, Partnership § 140. Also, see Shearer v. Davis, 67 Cal. App. 2d 878, 155 P. 2d 708; Sibert v. Shaver, 111 Cal. App. 2d 833, 245 P. 2d 514; Glassell v. Prentiss, 175 Cal. App. 2d 599, 346 P. 2d 895.) While there is authority that the statute of limitations does not begin to run between partners with respect to matters to be adjusted in an accounting between them until the partnership affairs and accounts are settled and the balance agreed on (Hendy v. March, 75 Cal. 566, 17 Pac. 702; Freeman v. Donohoe, 65 Cal. App. 65, 223 Pac. 431; Danelian v. McLoney, 124 Cal. App. 2d 435, 268 P. 2d 775; 1 Cal. Jur. 2d, Accounts and Accounting § 87; 31 Cal. Jur. 2d, Limitation of Actions § 162; 38 Cal. Jur. 2d, Partnership § 143), it is obvious the rule does not apply where, as here, the partnership accounts are settled, the partnership has terminated for all purposes, and nothing remains to be done except the determination of the amount due one partner from the other. The rule is well stated in 2 Wood on Limitations (4th Ed.):
“. . . There is no definite rule of law that the statute begins to run immediately upon the dissolution of the partnership, and the question as to whether it does or not must depend upon the peculiar circumstances of each case. But unless there is some covenant or agreement, express or implied, fixing a period for accounting beyond the time of dissolution, or circumstances that render an accounting impossible, the statute begins to run from the time when the partnership is in fact dissolved. . . .” (p. 972.)
Shearer v. Davis, supra, involved an action for an accounting and dissolution of a joint venture. The parties had entered into the relationship in July 1934, and the last significant act concerning the business of the venture occurred on April 4, 1936. The action was filed on August 6, 1941. The court, noting that the rights and liabilities of joint venturers as between themselves are governed by partnership law (C. C. A. § 2423 [now Corp. C. A. § 15029]; Zeibak v. Nasser, 12 Cal. 2d 1, 82 P. 2d 375), held that the dissolution of a joint venture takes place when either party to the joint venture ceases to be associated in carrying on the common business as distinguished from the winding up of the business. In determining that the action was barred by the statute of limitations, the court stated:
“The right to an accounting of his interest shall accrue to a member of a joint venture at the time of dissolution of the joint venture in the absence of any agreement to the contrary. (Civil Code, sec. 2437 [now Cal. Corp. C. A. § 15043].)
“Since the trial court found, supported by substantial evidence, that the joint venture was dissolved in April, 1936, and the present action was not instituted until August 6, 1941, more than four years had elapsed from the time plaintiff’s cause of action accrued until he filed the complaint in the present action. Therefore under the provisions of section 343 of the Code of Civil Procedure, his action was barred by the statute of limitations. Brooks v. Campbell, 97 Kan. 208, 155 P. 41, 42, Ann. Cas. 1918D, 1105.” (p. 881.)
The case of Brooks v. Campbell cited above is of interest. There, an action was begun September 19, 1913, for an accounting and settlement for monies due one of the partners from the other partners. The petition alleged the partnership business was closed in April 1908. In holding that the action was barred by the three-year statute of limitations, the court stated:
“There is an implied obligation between general partners that on the termination of the partnership they will account to each other and settle and pay any balances due among themselves. To bring about such accounting and settlement a cause of action will lie. . . .
“Unless the partnership business was unsettled, . . . the plaintiff’s cause of action for an accounting arose April, 1908, and was barred in April, 1911. If, as alleged, his partners owed the plaintiff a balance of money, it too was barred in April, 1911. (Civ. Code, § 17, subdiv. 2.)
“If there were unsettled accounts, the statute would not begin to run until they were disposed of. (Bushnell, Limitations and Adverse Possession, §§57, 66, 67, 207, 208; 2 Wood on Limitations, 3d ed., § 211 and note.)” (p. 210.)
It was noted in the opinion that while there is no end of authority holding that the cause of action for accounting and settlement between partners arises on the dissolution of the partnership, there are cases holding the statute does not run where a partnership is being wound up in due course, realizing assets and satisfying debts.
In accord with what has been said, we hold that the plaintiff’s cause of action for a partnership accounting accrued, as well as arose, in the state of California in March 1959, and under K. S. A. 60-516 the California statute of limitations is applicable.
Is the plaintiff’s action for accounting barred by the applicable California limitation statute?
Section 339 of the California Code of Civil Procedure Annotated (Deering, 1959) provides that “an action upon a contract, obligation or liability not founded upon an instrument of writing” must be brought within two years. Section 343 of said code provides that an action for relief not otherwise provided for “must be com menced within four years after the cause of action shall have accrued.” An action seeking an accounting and settlement of the affairs of a copartnership is governed by the four-year statute. (§ 343, supra; Freeman v. Donohoe, supra; Shearer v. Davis, supra. Cf. Jefferson v. J. E. French Co., 54 Cal. 2d 717, 7 Cal. Rptr. 899, 355 P. 2d 643, holding the two-year statute [§ 339, supra] applies, though an accounting is involved, where the primary purpose of the action is to recover money on an oral contract.) The action in the instant case, not having been brought within four years after the accrual thereof, is barred under the laws of the state of California, and thus cannot be maintained in Kansas. (K. S. A. 60-516; Leonard v. Kleitz, supra; Stockmens Bank v. Madison, 129 Kan. 253, 282 Pac. 570; Nickel v. Vogel, supra.)
A motion for summary judgment must be sustained where a defendant pleads the statute of limitations and it appears from the matters before the court, in ruling on the motion, that the action is barred and that there is no genuine issue of material fact on the question. (City of Ulysses v. Neidert, 196 Kan. 169, 409 P. 2d 800; Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693.)
Our conclusion that the district court properly sustained the defendant’s motion for summary judgment on the ground that plaintiff’s cause of action was barred by the statute of limitations renders unnecessary a discussion of other points raised on appeal by the plaintiff. The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroéder, J.:
This is a workmen’s compensation case initiated by the deceased workman’s widow (claimant-appellee), individually and as guardian of their two minor children, to recover compensation from the respondent and its insurance carrier (appellants) for the death of the workman allegedly due to aggravation of a preexisting heart condition while employed by the respondent. The workmen’s compensation special examiner denied compensation, but the workmen’s compensation director reversed the examiner and awarded compensation, and the award was affirmed on appeal to the district court. Appeal has been duly perfected.
The issue on appeal is whether there is substantial evidence to support the trial court’s findings that there was a causal connection between the decedent’s work and his death, and that the decedent suffered an accident which arose out of and in the course of his employment which caused him injury resulting in his death.
Jack Pershing Hanna died October 6, 1963, in Larned, Kansas, at the age of 45 years. He was survived by his widow, Ann M. Hanna, and two minor children. Dr. T. D. Ewing, acting coroner for Pawnee County, Kansas, executed the death certificate, stating the immediate cause of death was myocardial infarction due to coronary occlusion due to arteriosclerotic heart disease of several years’ duration.
Jack Pershing Hanna, the deceased workman, was employed by Post & Brown Well Service, the respondent in this case, on September 29, 1963, to and including October 5, 1963, when his employment was terminated at the end of the work day.
The decedent had a long history of heart trouble. In 1958 he had a closed heart operation in Tulsa, Oklahoma, after which he felt well for about a year. However, he again began having trouble, and went to see Dr. Francis Burdick in Denver, Colorado. As a result of this and further examinations, Mr. Hanna underwent open heart surgery in 1961. The claimant testified that after the operation he felt pretty well, and Doctor Maresh, who also examined him after the operation, reported that Mr. Hanna felt some improvement. However, he was still far from carrying on normal activity, and Doctor Maresh, in connection with the Colorado Heart Association, placed Mr. Hanna in the III-C work classification of the American Heart Association, which means that Mr. Hanna was physically qualified only for sedentary work.
In January, 1963, the Hannas moved to Hutchinson, Kansas, where he managed a hotel. He lost this job in July, 1963, because the owner did not want a manager with children. Between July and September, 1963, Mr. Hanna was largely unemployed, and the family was forced to borrow money from Mrs. Hanna’s mother. On September 27, 1963, Mr. Hanna answered a newspaper advertisement for a job with Post & Brown Well Service and was employed. He had done some oil field work before he was married, but none thereafter. He began work on September 30, 1963.
During the week of September 30, 1963, to October 5, 1963, Mr. Hanna lived in a hotel in Lamed, Kansas, where he worked, while his wife lived at their home in Hutchinson. Each night she called him and he told her how tired he was. When she talked with him on the evening of Thursday, October 3, 1963, he said he felt as if he had a heart attack coming on, but that he was not going to quit work because he felt they needed the money.
Hanna was employed by the respondent to be a member of a drill pipe pulling crew. The work of the crew is heavy manual labor. Hanna was assigned the easiest of this work.
On October 4, 1963, Hanna advised his foreman, Bill Post, that his chest was being filled with fluid; that he had an appointment with a doctor in Larned; but when the foreman told him to keep the appointment he refused to do so and went to work. While at work Hanna tired easily and rested often while the other men worked.
Hanna returned from work about 8:00 p. m. on October 5, 1963, after being with the crew at least twelve hours. He complained to the night clerk at the hotel, where he lived, that he was not feeling well. He talked about his heart condition with a hotel guest (Royal Griffith) and said he had a horror of dying over the week-end. He appeared to be heavy-set, with a good physical build; he was jolly, friendly and talkative to this guest. To the night clerk he also appeared to be red-faced and breathing hard, with his head hanging down, and she thought he should go to bed and rest. He received two telephone calls from his wife that evening. The night clerk heard him snoring extremely loudly about 2:00 a. m., and while he. snored every night it was extraordinarily loud because she and another party commented on it at the time. The night clerk further stated that when Hanna first came in to the hotel in the early part of the week, his breathing was not so bad; but it seemed to get worse as the week went on, working as hard as he was.
During the telephone conversation on Saturday, October 5, 1963, Hanna told his wife he had worked thirteen hours that day pulling rods; that he had an attack during work; and that he had to sit down for a couple of minutes.
Mr. Hanna’s fellow employees, Orville Kasselman and Wilbur Traylor, as well as his foreman, Bill Post, all confirmed the fact that on Saturday, October 5, 1963, Mr. Hanna had seemed to play out on the job and had to sit down and rest; that he did not eat lunch that noon and sat on the side of the truck most of the afternoon. Orville Kasselman and Walter Dubbs testified that the type of work performed by Hanna was hard manual labor — particularly for one who was inexperienced in the field.
Mrs. Hanna and a nurse and a receptionist in the employment of Doctor Shepard confirmed that during the week preceding his death, Hanna had made an appointment with Doctor Shepard because he was having trouble.
The night clerk at the hotel testified that Hanna grew more weary as the week of his employment went on, and on Saturday, October 5, 1963, he seemed very tired and short of breath. The next morning he was found dead in his bed.
Although there was a conflict as to the cause of death, Doctors Burdick, Maresh and Swan each positively stated it was his reasoned opinion that the manual labor engaged in by Hanna during the week preceding his death was directly and causally related to his death. Doctors Burdick and Maresh had examined the decedent when he lived in Colorado, and their opinion was that Hanna died of acute cardiac failure, rather than the myocardial infarction listed as the cause of death by the coroner. This would explain the filling of the decedent’s chest with fluid prior to his death. No postmortem was done.
Doctor Paine, while conceding that Hanna’s work could have aggravated or contributed to the heart failure which he experienced, felt that because of the weakened condition of the decedent’s heart, he could not definitely say what was the cause of Hanna’s death. Doctor Ewing, who examined Hanna’s body after his death, stated by deposition he did not feel Hanna was suited for manual labor, but refused to speculate in his testimony on the cause of death because of his lack of knowledge about Hanna’s physical condition prior to death. He did, however, admit that it was possible, and even “probably” more probable than not, that the work Hanna was doing contributed to his death.
Doctors Sifford and Lukens stated in their opinion the work performed by the decedent was not a causal factor in the decedent’s death. Doctor Lukens, although never having personally examined the decedent, felt that from the symptoms related by the doctors who had examined him, the most likely cause of death would have been “an embolic phenomenon of some sort, that is, a blood clot breaking off in the heart and traveling somewhere else in the body, most likely the brain. The next most likely phenomenon would either be an episode of cardiac arrhythmia from which ventricular fibrillation occurred and the circulation stopped or cardiac standstill occurred.”
It is the appellants’ contention that this case presents an unusual set of facts and circumstances due to the nature of the workman’s pre-existing heart disease. The evidence is undisputed that the workman in this case, before going to work for Post & Brown Well Service, was suffering from a heart condition for which the prognosis was extremely poor regardless of any of his activities.
The appellants emphasize, in addition to the medical history heretofore stated, that at the age of 7 or 8 years Mr. Hanna had rheumatic fever and St. Vitus Dance. In 1961 it was found his heart had increased 40% and tests revealed a slow auricular fibrillation with left ventricular hypertrophy and strain; the diagnosis was rheumatic heart disease with mitral insufficiency. In August, 1961, an open heart operation was performed with no appreciable change in his general condition and he was repeatedly in and out of cardiac failure. The appellants further rely on testimony that mitral steno-sis is an inflammatory disorder of die mitral valve of the heart which is secondary to a previous acute rheumatic infection. The inflammatory process involving the valve produces scarring and adhesions of the valve leaflets. The scarring and adhesions narrow the opening of the valve so there is an obstruction to the blood flow from the left atrium into the left ventricle of the heart. This obstruction of the flow of blood causes enlargement of both chambers on the right side of the heart and at the same time produces congestion of the lungs. As the disease progresses, congestive heart failure occurs with fluid developing in the lungs and swelling of the liver and lower extremities.
The appellants contend the claimant has the burden of establishing by substantial competent evidence an “accident” within the meaning of the workmen s compensation act; that the claimant must establish the workman suffered heart failure while working; and that the heart failure was occasioned by or due to the work which the decedent was doing, citing Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205, where it is said:
“. . . The injury must arise because of the employment, or in some reasonable way be traceable to it. The injury must in some sense be due to the employment [citing cases]. . . .” (p. 796.)
It is the appellants’ position that upon all the evidence in this case the claimant has failed to meet this burden.
The appellants have misconstrued Hanna v. Edward Gray Corporation, supra. There a workman did suffer a coronary occlusion while working on the job for his employer. The right to compensation was challenged on the theory that the claimant had not sustained the burden of showing that work caused the coronary occlusion, there being no medical testimony to establish the probability of such causal connection. The court there specifically stated in the opinion that the case was corollary to, and should be considered in connection with, Mein v. Meade County, 197 Kan. 810, 421 P. 2d 177, where general rules to which this court adheres in heart cases are discussed and elaborated, and to which specific reference was made.
In the Mein case the heart attack occurred at night while the workman was at home and after he had gone to bed. Upon sufficient medical testimony and other evidence, it was there held the trial court’s finding of causal relationship between the employment of the deceased workman and the heart attack, from which he subsequently died, was supported by sufficient evidence.
The court said in Mein:
“Neither is the fact that injury may first become apparent, or death occur, after a workman has left his employment, a factor of decisive significance in determining whether compensation is due under the Act, provided the injury, or death, is causally related to the work performed on tire job. Larson [on workmen’s compensation law] states it in this way:
“ Tf a strain occurs during employment hours which produces no symptoms, and claimant suffers a heart attack as a result some time after working hours, the injury is compensable. . . .’ (Vol. 1, §29.22, p. 452.108.) On more than one occasion where death occurred after a workman had left his employment for the day, this court has held the death compensable. (Harmon v. Larabee Flour Mills Co., supra [134 Kan. 143, 4 P. 2d 406]; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863; Geurian v. Kansas City Power & Light Co., 192 Kan. 589, 389 P. 2d 782.)” (p. 814.)
The district court made extended written findings of fact based upon the evidence, the substance of which is incorporated in the foregoing statement of facts, following which it made written comments as follows:
“There were 18 witnesses in this case of which 6 were medical doctors. This court read all of the depositions and transcripts of proceedings carefully. One group of medical experts indicated that there could be a causal connection between Hanna’s death and Hanna’s work for the Respondent. The other group of medical experts appear to say there can be no causal connection between a man’s work and his death from heart disease. Even though this medical testimony is conflicting, vague, uncertain and extremely difficult to understand by one who is not well versed in the technical language of the expert, it is still necessary for this court to make a decision. This decision can only be made when considering the facts of the case as a whole, using, of course, the opinions of our Supreme Court as a guide. There are no specific facts which compel a decision one way or the other. A decision must be based rather on the totality of the circumstances. Certainty is not possible and should be avoided, not sought.
“For the foregoing reasons, based on the Findings of Fact by this Court, this Court finds that there was a causal connection between Hanna’s work and Hanna’s death; that he suffered an accident which arose out of and in the course of his employment which caused him injury resulting in his death on October 6, 1963. Hanna should not have attempted to work for this Respondent for he knew the work to be heavy manual labor and of the kind that he had been warned not to tackle, but he did work for the Respondent. He experienced work difficulties from the beginning. He wore out and became weakened because of it. This was evident to all who worked with him, including the Respondent’s foreman who terminated Hanna’s employment. The foreman indicates his reason for firing Hanna to be because he was inexperienced and could not do the work required of him; but it is easy for this court to conclude that Hanna’s failure to work steadily, his resting while the others worked, had as much to do with Hanna’s discharge as did his inexperience.”
The appellants point to the fact that the claimant has offered no actual evidence in this case as to the cause of death, since an autopsy of the decedent was not performed. They argue this is a part of the claimants burden of proof. Upon this premise the appellants argue it would have to be assumed that the rheumatic disease played a part in Mr. Hanna’s death, and therefore, there is an element of conjecture and surmise as part of the claimant’s proof. The appellants conclude that the evidence establishes the death of Hanna to be the natural result of the heart disease and not an accident arising out of his employment, and they rely on workmen’s compensation cases from other states to support their theory of the law.
This court has frequently said in workmen’s compensation cases it does not place much reliance upon cases from foreign jurisdictions based upon workmen’s compensation statutes that vary in their provisions.
One of the most litigated issues in workmen’s compensation cases has been whether a heart attack or heart failure sustained by a workman arose out of his employment. The fundamental rules to be applied on appellate review in such cases have been stated many times and are summarized in Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796, at pages 366 and 367 of the official report, to which reference is made.
It is not disputed under the decisions of this court that if a workman’s physical structure gives way under the stress of his usual labor, the injury may be classified as an “accident” within the meaning of the workmen’s compensation act, and compensation awarded. This rule is also applicable to “heart” cases. It has been held that a coronary thrombosis (Peterson v. Safeway Stores, 158 Kan. 271, 146 P. 2d 657; and Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103), or an acute coronary occlusion (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; and Alpers v. George-Nielsen Motor Co., 182 Kan. 790, 324 P. 2d 177), which resulted in the death or disability to a workman, was personal injury by accident when it arose out of and was received in the course of employment. (Alpers v. George-Nielsen Motor Co., supra; and Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235.)
Under the workmen s compensation act the rule is that the injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. (Pinkston v. Rice Motor Co., supra; Alpers v. George-Nielsen Motor Co., supra; Wilson v. Santa Fe Trail Transportation Co., supra; and Rorabaugh v. General Mills, supra.)
As applied to heart cases the terms “personal injury,” “accident,” “in the course of” employment, and “arising out of” employment, used in the workmen s compensation act were defined in Pinkston v. Rice Motor Co., supra, commencing at the top of page 300 and concluding at the top of page 302 of the official report. These definitions are incorporated herein by reference.
It is a well established rule in this state that accidental injuries are compensable where the accident serves only to aggravate or accelerate an existing disease, intensifies the affliction, or contributes to the death of the workman. (Pinkston v. Rice Motor Co., supra; Bohanan v. Schlozman Ford, Inc., 188 Kan. 795, 366 P. 2d 28; Pence v. Centex Construction Co., 189 Kan. 718, 371 P. 2d 100; and Geurian v. Kansas City Power & Light Co., 192 Kan. 589, 389 P. 2d 782.)
If a workman’s existing physical condition, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out of his employment. In Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, it was stated, “ ‘An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.’” (p. 776.)
Plausible as the respondent’s argument may seem, the dilemma in cases of this type is the divergent medical views concerning heart cases. A discussion on this point was undertaken in Hanna v. Edward Gray Corporation, supra, where the court had a heart case under consideration, and it was held that the record contained substantial competent evidence to sustain the finding of the trial court because it was entitled to consider lay testimony, together with the testimony of an expert medical witness, to determine whether the injury arose out of the claimant’s employment. In the opinion the court said:
“Medical science has not developed to the extent that it can diagnose human ailments with the exactitude of the mathematician, and a requirement that the physician testifying should be required to state with certainty the cause of a claimant’s condition, after a hypothetical case has been submitted to him, would be supposing an exactness in medical science to which its most learned followers have not yet attained. (Son v. Eagle-Pitcher M. & S. Co., 144 Kan. 146, 58 P. 2d 44.) Necessarily, there is an element of uncertainty and speculation in the formulation of expert opinion on the mysterious functioning of the human body, and physicians are hesitant to express a positive opinion, but absolute certainty is not required to support an award in workmen’s compensation cases.
“Perhaps it has been a reluctance of the courts to thrust upon victims of industrial accidents the uncertainties of medical science that has led to the rule which permits consideration of lay testimony, together with the testimony of expert medical witnesses, to resolve issues in workmen’s compensation cases relating to the injury of workmen and the causal relation of such injury to the employment. (See, Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106.)” (p. 802:)
While the district court, in its comments, stated its confusion with the conflict in the technical aspects of the medical testimony, it also stated the medical opinions could support a decision either way, and made its decision on the facts of the case as a whole, using all the facts and the evidence surrounding the death that were brought out at the hearing. On this point the decision of the trial court in the instant case recognized the rules stated in Hanna.
In Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676, this court said:
“In a workmen’s compensation case it is not required that the claimant establish his right to an award by direct evidence alone, . . . Circumstantial evidence may be used to establish the claim, and it is not necessary that the circumstantial evidence rise to that degree of certainty as to exclude every reasonable conclusion other than that found by the trial court. . . .” (p. 622.)
Viewing the evidence heretofore related in the light most favorable to the claimant, as we are bound to do under familiar rules on appellate review, we are compelled to conclude that it is sufficient to require affirmance of the trial court’s findings and judgment awarding compensation. In so determining, we do not intend to imply that the evidence was not in conflict. The evidence would have supported findings made by the district court had they been to the contrary, thus requiring a judgment in favor of the respondent. However, it is not our function on appellate review to weigh conflicting evidence; that responsibility falls within the province of the trial court whose judgment must be upheld if supported by substantial competent evidence.
Although there do not seem to be any reported cases in Kansas involving rheumatic heart disease, there is no reason to distinguish it from all other pre-existing heart conditions that have been held insufficient to bar recovery. An employer takes an employee as he finds him. The crucial question is whether the decedent’s work served to aggravate or accelerate an existing disease, intensify the affliction, or contribute to the death of the workman. (Bohanan v. Schlozman Ford, Inc., supra.)
A situation somewhat analogous to that presently confronting the court was presented in Mein v. Meade County, supra. There the workman had heart trouble for several years and had already suffered one heart attack. He was given the job of mowing, and trimming and bulldozing trees. There was some conflict as to the difficulty of the manual labor involved on such job. This court, nevertheless, upheld an award of compensation, stating it was not the function of the appellate court to weigh conflicting evidence, since that responsibility falls within the province of the trial court. The pre-existing heart trouble of the decedent was insufficient to bar recovery.
The judgment of the lower court is affirmed.
Price, C. J., dissents. | [
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The opinion of the court was delivered by
Harman, C.:
This is a mortgage foreclosure action on real estate located in Shawnee county, Kansas.
A brief chronology is necessary: The mortgage in question was executed September 30, 1960, by Ronald D. Tetzloff and Patricia L. Tetzloff, the then owners of the property; the mortgagee shortly thereafter assigned it to appellee. October 24, 1961, the Tetzloffs conveyed the property to William E. Look and Blanche N. Look; March 27, 1962, the Looks conveyed it to William R. Sims and Charlene K. Sims, who in turn, on August 25, 1965, conveyed it to J. E. Heide, an unmarried man, appellant herein. Each deed of conveyance contained a clause whereby the grantees assumed and agreed to pay the mortgage.
The mortgage became in default prior to the conveyance of the property to appellant and nothing has been paid thereon since August 11, 1965.
On November 2, 1965, appellee filed in the district court of Shawnee county its petition to foreclose the mortgage, naming as defendants all the foregoing named owners including appellant. The same day, upon appellee’s praecipe, a summons was issued to the sheriff of Sedgwick county, Kansas, to be served upon appellant at a named address in Wichita. That sheriff returned the summons stating appellant had moved from the address given three months or more prior and after diligent search and inquiry he was unable to find appellant. On December 15, 1965, appellee filed its affidavit for service by publication upon appellant and certain other defendants. With one exception to be mentioned later, the affidavit followed the form prescribed in K. S. A. 1965 Supp. 60-307(d) (5). Proof of such publication was duly filed December 30, 1965. No appearance by appellant being made meanwhile, on February 14, 1966, default judgment was entered against him. Order of sale for the property was duly issued and it was sold, appellee bidding it in for the amount of its judgment, costs and taxes. On May 6, 1966, the sale was confirmed by the court. The redemption period was fixed at six months, the court having found that the mortgage was a purchase money mortgage upon which less than one-third had been paid prior to default.
On June 28, 1966, appellant made his first appearance in the proceedings filing an instrument denominated “Special Appearance.” In this he alleged in substance that the various orders and judgment were void because he, a resident of Shawnee county, Kansas, had not been properly served with a summons, and he moved that they be set aside.
The trial court held a hearing on the “Special Appearance,” taking evidence. The trial court treated appellants appearance as an application under K. S. A. 60-309(a) to open a default judgment rendered on service by publication. That statute prescribes, among other things, as a prerequisite to relief thereunder, a showing that during the pendency of tire action the defendant had no actual notice thereof in time to appear in court and make his defense. At the hearing appellant specifically admitted he had knowledge of the foreclosure proceeding right after the first of January, 1966. Because of this evidence, judgment having been rendered February 14, 1966, the trial court on July 20, 1966, overruled appellants motion. This appeal is from that order.
First of all, we think the trial court misconceived appellant’s motion in treating it as an application for relief under K. S. A. 60-309 (a). That section contemplates the opening up of default judgments rendered on service by publication so that a defaulting defendant may be let in to defend on the merits. It presupposes jurisdiction was obtained over the defaulting defendant (see James’ Civil Procedure, §11.4). Its purpose is to give such a defendant who can comply with its terms his day in court so he can defend on the merits (4 Vernon’s K. S. A. Code of Civil Procedure, p. 152). Appellant made no attempt to come in under that statute for fairly obvious reasons. 60-309(a) does not contemplate the vacating of a void judgment, and one attacking a void judgment is not bound by its procedural limitations. There is no necessity to defend on the merits against a void judgment before it can be vacated; likewise knowledge of the pendency of the action is an immaterial factor in its vacation; the attack may take various forms, and there is no time limitation.
The .substance of appellant’s motion, filed in the foreclosure action, as already stated, challenged the validity of the judgment on the basis of the court’s jurisdiction over his person, and it positively alleged that the judgment was void, thus bringing the motion within the purview of K. S. A. 60-260(b) (4) which provides:
“(b) On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void. . . .”
If the judgment were void, appellant was entitled to have it vacated as requested. Hence we turn our inquiry to the validity of the judgment, questioned in several respects by appellant.
The affidavit for service by publication, signed by one of the attorneys for appellee, did not contain the jurat of a notary public although space was provided for the same on the form used. Appellant contends this omission voided the service sought to be obtained, asserting there was no affidavit. At the hearing before the trial court on appellant’s motion a notary public testified the named affiant did in fact swear to the affidavit before her. The same contention raised by appellant here was considered by this court in James v. Logan, 82 Kan. 285, 108 Pac. 81, and it was held:
“If a declaration has in fact been made under oath it is an affidavit, although no jurat be attached. The jurat is merely evidence that an oath was duly administered, and in the absence of a jurat the fact may be proved by evidence aliunde.” (Syl. ¶2.)
This court further stated that when a paper purporting to be an affidavit has been approved as such by the court, and has been made the basis of judicial action as if it were duly authenticated, the omission of the jurat is a mere irregularity which does not vitiate the subsequent proceedings based on the affidavit.
In the instant case the trial court in the foreclosure proceeding specifically and expressly approved the proof of publication as reflected in its journal entry of judgment, all in full compliance with the requirements of K. S. A. 1965 Supp. 60-307(g), and there was evidence the affidavit was in fact sworn to before an authorized officer. The absence of a jurat on the affidavit did not invalidate the service on appellant.
Appellant contends lie was not subject to service by publication because he was a resident of the state of Kansas and in fact resided in Topeka when service was sought to be obtained upon him. Appellant testified at length at the hearing concerning the subject of his residence. It appears he is what is sometimes referred to as an “equiteer,” that is, he buys equities of redemption, making “some land of a deal” with the owner of mortgaged property being foreclosed upon, whereby he receives a deed to the property and holds it for the rent during the redemption period without payment of any expense on the property. He also lives for short periods in some of the properties he buys. It appears he has had many business contacts in Topeka and that at the time of the hearing he owned fourteen houses in Topeka, eleven in Salina and about ten in Wichita. He described his various places of residence and, as nearly as we can tell from a somewhat uncertain narrative, he had, within the last year, lived at two different addresses in Wichita proper, at Haysville, Derby, Salina, and at seven different addresses in Topeka. He had an address listed in the Topeka telephone directory. He moved into the house at this address the latter part of October, 1965. Evidently he remained in this house only a matter of a few days as he testified “To the best of my knowledge I was in Salina, 1118 Acorn Circle, on November 2, 1965, the date this case was filed.” In December, 1965, he was living in Topeka.
Based on the foregoing, appellant contends he was not subject to service by publication. We do not agree.
K. S. A. 1965 Supp. 60-307(a)(3) provides publication service is permissible in actions relating to real estate or foreclosure of a lien “where plaintiff with due diligence is unable to make service of summons upon the defendant within the state.” Subsection (d) thereof prescribes a procedure for the initiation of such service which procedure, with the exception already dealt with, was followed. The affidavit for such service stated the residence of appellant was unknown and that affiant did not know and with reasonable diligence was unable to ascertain such residence and that appellee was unable to procure personal service of summons on appellant within this state.
Bad faith or fraud in the procedure to obtain service by publication was neither shown nor suggested. That the exercise of due diligence might fail in ascertaining appellant’s place of residence and obtaining personal service upon him is readily understandable from his own recital of his frequent moves.
We have long had statutes authorizing service by publication, and this court has had occasion to construe the procedural aspects in issue here. Davis v. Land Co., 76 Kan. 27, 90 Pac. 766, was a quiet title action wherein service by publication was had upon an affidavit made in good faith, though mistakenly, that defendants were nonresidents of the state. Contention was made, as here, that the judgment rendered was a nullity. This court held:
“A decree quieting title to real estate, where the only service upon the defendants is made constructively as provided by the statute for non-residents of the state, is not void because the grounds stated in the affidavit are untrue.” (Syl. P.)
The rationale stated was that, assuming good faith, the question of jurisdiction must be determined by the statute authorizing publication service, that whether a defendant is a nonresident or not is a question of fact which must be determined by testimony before constructive service can be completed, and the only evidence required by the statute to establish this fact was the prescribed affidavit; that when such an affidavit had been filed, and notice by publication • given, and the proceeding had been examined and approved by the trial court, as required by statute, then jurisdiction existed and the judgment rendered is valid.
The foregoing principles have been approved and applied in many of our cases (see 5 'Hatcher’s Kansas Digest, rev. ed., Writ and Process, §37, and 8 West’s Kansas Digest, Process, §96(4); also Marler v. Mortgage Co., 111 Kan. 488, 207 Pac. 823), and are in accord with rules generally applied elsewhere (annotation at 159 A. L. R. 574). We think they are applicable here.
We hold, therefore, the statutory requisite for service by publication having been met, jurisdiction was obtained over appellant, and the judgment attacked was not void for the reasons asserted.
That appellant’s position now is untenable results in no prejudice. Apparently, delay has been his only objective. He has never sought to defend on the merits. Having known of the action six weeks prior to judgment he could have, come in and defended on the merits in ample time; had he in fact not known of the action prior to judgment, 60-309 (a) would have permitted presentation of a meritorious defense.
The trial court’s judgment refusing to vacate the orders com plained of was correct, although for reasons other than those given, and it is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order denying an application for a writ of habeas corpus.
The facts are not in dispute.
The appellant was complained against in five counts with feloniously issuing warehouse receipts in Reno County, Kansas, knowing at the time that no wheat for which the receipts were issued had been received by him as owner of the warehouse or placed under his control.
At the preliminary hearing the uncontradicted evidence showed that Addington Grain Company, Inc., a Kansas corporation with principal offices at Wichita, Kansas, owned and operated a licensed warehouse in Hutchinson, Reno County, Kansas in December of 1965. Warehouse receipts on forms furnished by the State Grain Inspection Department but paid for by the corporation were issued by the corporation covering wheat in its Hutchinson facility. Receipts issued by Addington Grain Company, Inc. were registered by the Trust Department of the Merchants National Bank in Topeka, Kansas, a bonded registrar authorized and approved by the State Grain Inspection Department. During the period in question all of the business of Addington Grain Company, Inc. was conducted at its principal office at 4601 East Douglas in Wichita, Kansas.
On December 8, 1965, appellant executed the five warehouse receipts in question at his office, which was also the office of the corporation, at 4601 East Douglas Avenue, Wichita, Kansas. They were brought to Topeka the same day for registration. The next day appellant called on the president of the Eastside National Bank in Wichita, Sedgwick County, Kansas, and submitted the warehouse receipts as collateral for loans. Appellant there endorsed the receipts and delivered them to the banker who made the loan and retained the receipts in the bank files. The receipts were executed and endorsed by the appellant as the authorized agent of the corporation.
At the close of the state’s evidence appellant moved for a discharge for the reason that the court’s jurisdiction had not been established. The motion was overruled. At the close of the preliminary hearing appellant again renewed his motion for a discharge which was overruled.
The magistrate ordered the appellant held to answer to the charges in the complaint in the district court of Reno County. The appellant was ordered committed to the Reno County jail until bond was posted in the sum of $5,000. The appellant, while so committed, filed the petition for a writ of habeas corpus challenging the authority of the magistrate because of lack of venue in Reno County.
By agreement the evidence presented to the trial court consisted of the pleadings, exhibits, briefs and transcript of proceedings had in the magistrate court. After due consideration appellant’s petition was denied, the temporary writ previously issued by the clerk dissolved at appellant’s cost and appellant was remanded to the custody of the sheriff of Reno County. Although the above facts are agreed to for the purpose of this controversy we do not understand that the parties are necessarily bound thereby in the trial of the case in chief.
This appeal is from the order denying the writ.
We are confronted with a jurisdictional question raised by the appellee which must be disposed of before we proceed with the merits of the appeal.
Appellee suggests that “the controlling problem in this appeal is whether or not the question of proof of venue can first be raised in a collateral attack by habeas corpus.” The appellee contends that its suggestion is supported by two general propositions of law— first, the question of the locus of a crime is a question of fact to be determined by the jury in the trial of the case in chief, and second, a writ of habeas corpus cannot be used as a means of reviewing the sufficiency of the evidence to establish venue.
We would agree with the appellee that as a general rule venue is a question of fact to be determined by the jury in the trial of the case in chief. (In re Stilwell, 135 Kan. 206, 10 P. 2d 15.) However, we have no question of fact in this case. The place or places where the various elements of the alleged offense were committed are not in dispute. There remains only to be determined, as a matter of law from the admitted facts, the proper venue for the trial of the action. Where the facts are admitted a factual question should not be submitted to the jury. (Shrader v. McDaniel, 106 Kan. 755, 189 Pac. 954; Houdek v. Gloyd, 152 Kan. 789, 107 P. 2d 751; International Motor Rebuilding Co. v. United Motor Exchange, Inc., 193 Kan. 497, 501, 393 P. 2d 992.)
Where the facts are not in dispute this court has applied the rule that in the absence of the right to an appeal a commitment by a magistrate at a preliminary hearing will be reviewed by habeas corpus where venue is questioned. (Gleason v. Comm'rs of McPherson Co., 30 Kan. 53, 1 Pac. 384.)
In In re Bolman, 131 Kan. 593, 292 Pac. 790, we stated in the syllabus:
“Habeas corpus will lie to inquire into the legality of one in custody under the order of a lower court when the question raised is the jurisdiction of the court to issue the order.” (Syl. 1.)
In the opinion it was stated that “the question of jurisdiction turned on the question of venue.”
It might also be suggested that in two recent cases jurisdiction was retained on appeal where the results of preliminary hearings were challenged by habeas corpus on sufficiency of the evidence. (In re Mortimer, 192 Kan. 164, 386 P. 2d 261; State v. James Earley, 192 Kan. 167, 386 P. 2d 189.) It would appear rather unreasonable, where the facts are not in dispute, to require an accused to go to the expense and time of a trial in the district court before challenging venue as a result of the preliminary hearing.
We now reach the basic question — under the undisputed facts where was the venue of the action?
The statute which sets out the elements of the offense reads:
“A warehouseman or any officer, agent or servant of a warehouseman who issues or aids in issuing a receipt knowing that the grain for which such receipt is issued has not been actually received by such warehouseman, or is not under his actual control at the time of issuing such receipt, shall be guilty of a felony . . .” (K.S. A. 34-290.)
We have held that to issue an instrument means “to send out, to deliver, or to put into circulation.” (State v. Pierce, 52 Kan. 521, 35 Pac. 19.)
The purpose of the statute was to avert mischief to trade, commerce and agriculture by discouraging the issuance of fraudulent receipts with all the attendant harmful circumstances.
There would appear to be but one overt act constituting the offense — the issuing or aiding in the issuing of the receipt, while knowing that the grain had not been actually received or under control.
Exhaustive research has disclosed no case touching directly on venue of the offense of unlawful issuance of warehouse receipts. There is no question here but that the issuing took place in Sedgwick County in the city of Wichita. The receipts were made out there and there endorsed and delivered. The offense could unquestionably have been prosecuted in Sedgwick County under the provisions of K. S. A. 62-401 which reads:
“Offenses committed against the laws of this state shall be punished in the county in which the offense is .committed, except as may be otherwise provided by law.”
The State concedes if venue exists in Reno County it must be by virtue of K. S. A. 62-404, which provides:
“When a public offense has been committed, partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” (Emphasis supplied.)
The appellant contends that the gravamen of the offense was the issuing of the warehouse receipts, all of which took place in Sedgwick County, and there were no acts or effect of acts constituting or requisite to the offense which occurred in Reno County.
The State contends that not having the grain in the warehouse was an act constituting an unlawful element of the offense and furthermore that the effect of the act need not be essential to the commission of the offense but it is sufficient if it is requisite to the completion of the unlawful purpose of the person committing the offense. The State also suggests that the statute is remedial and is to be liberally construed so as to effectuate the purpose to extend the lines of jurisdiction beyond the limits prescribed by the common láw.
We concede that the act is remedial and would ordinarily be liberally construed. However, where such a statute is subject to constitutional restrictions the construction must keep the statute within such constitutional restrictions or the statute is void. In State v. Knapp, 40 Kan. 148, 19 Pac. 728, we stated:
“Again, in The State v. Potter, 16 Kan. 80, it was said, ‘but with this provision, [Const., Bill of Rights, §10,] the defendant in a criminal action can be tried by any other jury, and out of the county and district where the offense is alleged to have been committed, only with his consent.’ If the statute purporting to authorize a change of venue was intended to permit the state to change the trial against the objection of the accused, it is in conflict with the bill of rights, and therefore void.” (p. 150.)
The Supreme Court of the United States announced in United States v. Johnson, 323 U. S. 273, 89 L. ed. 236, 65 S. Ct. 249:
“. . •. Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed. If an enactment of Congress equally permits the underlying spirit of the constitutional concern for trial in the vicinage to be respected rather than to be disrespected, construction should go in the direction of constitutional policy even though not commanded by it.” (p. 276.)
A statute should, if reasonably possible, be so construed as to uphold its constitutionality. (State v. Latham & York, 190 Kan. 411, 375 P. 2d 788; Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772.)
Section 10 of the Bill of Rights of the Kansas Constitution provides insofar as material here:
“In all prosecutions the accused shall be allowed ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. . . .”
Although the provision does not deal directly with venue, the fact that a resident cannot be drawn out of his own county for jury service operates indirectly to make the provision a limitation on venue. The accused must be tried in the county in which the crime is committed in order to get a jury from such county. (State v. Criqui, 105 Kan. 716, 185 Pac. 1063.)
Most of the states have embodied in their constitutions, by the above provision or other language, the common law rule that criminal prosecutions shall be tried in the county or district in which the offense was committed and it is generally held that the constitutional provision controls legislative enactments. The rule has been recognized in Kansas.
In State v. Bunker, 38 Kan. 737, 17 Pac. 651, we stated the purpose of the rule as follows:
“. . . The design of this constitutional provision seems to be to secure to the accused a trial by a jury from the vicinage where the crime is supposed to have been committed, so that he may have the benefit of his own good character and standing with his neighbors, if these he has preserved, and also of such knowledge as the jury may possess of the witnesses who give evidence before them. . . .” (p. 741.)
This court has also recognized the controlling effect of the con- ' stitutional provision in State v. Kindig, 55 Kan. 113, 39 Pac. 1028; State v. Wade, 55 Kan. 693, 41 Pac. 951; In re Hedrick Appeals, 155 Kan. 165, 123 P. 2d 806. We find the following statement by the Supreme Court of Nebraska in Gates v. State, 160 Neb. 722, 71 N. W. 2d 460:
“ ‘Venue is a jurisdictional fact and in this state the Constitution, art. I, sec. 11, and statute, Comp. St. 1929, sec. 29-1301 (now §29-1301, R. R. S. 1943), give the defendant in a .criminal prosecution the right to be tried by an impartial jury in the county where the alleged offense was committed.’ Robeen v. State, 144 Neb. 910, 15 N. W. 2d 69.” (p. 723.)
In addition to the case cited later covering the more specific question but which also discusses this issue note Rhoden v. State, (Florida) 179 So. 2d 606; Hannah v. State, 212 Ga. 313, 92 S. E. 2d 89; Woosley v. Commonwealth, (Kentucky) 293 S. W. 2d 625.
The best example of the effect of the constitutional provision is to be found in the state of Michigan where the amended constitution omitted the venue provision. The Supreme Court stated in People v. Lee, 334 Mich. 217, 54 N. W. 2d 305:
“ ‘In the absence of any limitation by constitutional provision, it seems to be generally recognized that the power of a State legislature to fix tire venue of criminal prosecutions in a county or district other than that in which the crime was committed is unrestricted,’ 76 ALR 1035.
“The Constitution of Michigan of 1835 contained the provision in article 1, §9, ‘The right of trial by jury shall remain inviolate/ and in article 1, §10, ‘In all- criminal prosecutions, the accused shall have the right to a speedy and public trial by an impartial jury of the vicinage/
“The Constitution of 1850 (art 6, §28) omitted the words ‘of the vicinage’ and the present Constitution, 1908 (art 2, §19), likewise does not have the words ‘of the vicinage’ qualifying a jury to try a criminal case. The evident purpose of leaving out of the Michigan Constitution the words ‘of the vicinage’ is to permit the legislature some latitude in legislating as to venue of criminal cases.” (p.225.)
If the result of our constitutional provision is to require a prosecution in the county in which the offense is committed, we then reach the very important question — When is an “offense committed” in a county?
The charge that “offenses committed against the laws of this state shall be punished in the county in which the offense is committed” as found in K. S. A. 62-401 and inferred by section 10 of the Bill of Rights is a product of the common law. Although the common law does not control either our constitution or statutes, when common law terms are used, we should look to common law definitions for their meaning.
In State v. Criqui, 105 Kan. 716, 719, 185 Pac. 1063, in dealing with Section 10 of the Bill of Rights, we find this statement:
“It is elementary that the constitution is to be interpreted in the light of the common law. (12 C. J. 718.)
“ ‘It is also a very reasonable rule that a state .constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still left in force. By this we do not mean that the common law is to control the constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of common-law rules, but only that for its definitions we are to draw from that great fountain, and that in judging what it means we are to keep in mind that it is not the beginning of law for the state, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes. . . .’ (Cooley Const. Lim., 7th ed., p. 94.)
“Section 10 of the bill of rights is virtually a transcript from authenticated English guaranties of personal liberty and security, and cannot be understood without understanding the common law. . . .” (p. 719.)
We get our common law from England. It dates back to the fourth year of the reign of James the First, or 1607, when the first English settlement was founded in this country at Jamestown, Virginia. The body of the laws of England as they then existed now constitute our common law. It is so fixed by statute in this state, (G. S. 1868, Ch. 119, §3; K. S. A. 77-109.) and is generally so fixed by statute or by judicial decisions in the other states. (Kansas Pacific Rly. Co. v. Nichols, Kennedy & Co., 9 Kan. 235, 252. See, also, Clark v. Allaman, 71 Kan. 206, 80 Pac. 571; 15A C. J. S., Common Law, §lc, p. 42.)
Under the very early common law of England where an offense consisted of a series of acts some of which were done in one county and some in another there was serious doubt by many authorities that there could be a prosecution in either county unless so much was done in one county as to constitute a complete offense. This situation was corrected as to most offenses by statute which became a part of the common law.
The first statute dealt with the crime of homicide. The act of 2 and 3 Edward VI, chapter 24, passed in 1547, read in part:
“For redress and punishment of which offense, and safeguard of man’s life, be it enacted by the authority of this present parliament, That where any person or persons hereafter shall be feloniously stricken or poisoned in one county, and die of the same stroke or poisoning in another county, that then an indictment thereof founden by jurors of the county where the death shall happen, whether it shall be founden before the coroner upon the sight of such dead body, or before the justices of the peace, or other justices or commissioners which shall have authority to enquire of such offences, shall be as good and effectual in the law, as if the stroke or poisoning had been committed and done in the same county where the party shall die, or where such indictment shall be so founden; any law or usage to the contrary notwithstanding.” (5 Statutes at Large, 320, 321.)
The history of the common law covering this subject was discussed at length in State v. Criqui, supra, in passing on the constitutionality of K. S. A. 62-410 and it was stated at page 719:
“The statute of Edward VI was in force in the fourth year of James I and, being a statute of a general nature, is regarded as a part of the common law which accompanied the colonists to this country, and became a part of our common jurisprudence. . . .”
Many subsequent enactments modified ancient common law rules as to venue with respect to the offenses to which they relate. (Encyclopaedia of the Laws of England, Vol. 14, page 474.)
By the time the constitutions of the various states were adopted it became an established rule that the English common law requirement as to venue, as modified by early statutes, was satisfied if the prosecution took place in either county where the offense occurred partly in one county or partly in another, or if the prosecution took place in a county where the overt act or the effect of the overt act occurred.
As a result every state in the union, insofar as our research has disclosed, passed an act somewhat in line with the early common law rule and all followed with an act containing the same language as K. S. A. 62-404. This might well be called the one uniform provision. It would appear that the courts of all of the states except two, which will be discussed later, are and have been in harmony in the construction of the statute.
The provision that “When a public offense has been committed, partly in one county and partly in another, . . . the jurisdiction is in either county.” has been generally construed as requiring that the offense must be divisible, and each part must be unlawful in and of itself, and committed at a different time and place, or the offense must consist of more than one act, each of which must constitute an unlawful element of the offense without the presence of which the crime would not be completed.
This statement of the law would dispose of the State’s contention that failure to have wheat in the warehouse at the city of Hutchinson in Reno County was a separate and necessary element of offense placing the venue in such county. The difficulty with the State’s position is that the failure to have wheat in the warehouse was not an “unlawful” element of the offense. It is not an unlawful offense not to have wheat in the warehouse at Hutchinson.
The mere existence in some county of acts or conditions of the accused, lawful in and of themselves, but necessary to be alleged and proven in order to establish the crime as charged, does not invoke the power of the above provision of the statute, so as to permit the trial of the defendant in such other county.
Next we consider the second provision of K. S. A. 62-404 which provides in effect ‘When . . . the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” The general rule appears to be that to satisfy this provision there must be an overt act in one county and the effects of such overt act, which is necessary to complete the crime, must occur in another, i, e., homicide resulting from poison inflicted in one county with death, the effect, resulting in another.
We find no merit in the State’s contention that the overt act committed in Sedgwick County had an effect in Reno County necessary to the completion of the crime. Neither do we find merit in the State’s contention that the provision should be interpreted to mean effects of acts necessary to consummate the wrongful purpose even though the effects are not necessary to complete the crime.
Although an attempt to use synonyms to construe a provision sometimes confuses rather than aids, using other words we construe the last quoted provision to mean — “an overt act or the effects of an overt act necessary to the completion of the crime charged.”
It might be suggested that even though we should accept the State’s construction of the statute, which we do not, we find no effects of the unlawful acts in Reno County necessary to complete the appellant’s alleged unlawful purpose. The warehouse receipts were issued for the purpose of using them as security to obtain a loan. The loan was made and the money was received on the loan in Sedgwick County. The alleged wrongful purpose was completed in such county.
Approaching authority for the above statements it is interesting to note that the meaning of the language contained in K. S. A. 62-404 and similar statutes of our sister states has seldom been challenged. There are but a few cases where the courts have been called upon to give the statutes the very liberal construction requested in this case.
This court has considered the statute on a few occasions but has never found it necessary to give the language the strained construction which the State suggests here. The provisions were considered in determining venue in a prosecution for homicide (State v. Bowen, 16 Kan. 475); in a prosecution for buying and receiving stolen property (State v. Rider, 46 Kan. 332, 26 Pac. 745); in a prosecution for false swearing (State v. Mason, 61 Kan. 102, 58 Pac. 978); in a prosecution for embezzlement (State v. Johnson, 109 Kan. 239, 199 Pac. 104); in a prosecution for disposing of mortgaged property (State v. Gorman, 113 Kan. 740, 216 Pac. 290); in a prosecution under the worthless check act (State v. Beam, 175 Kan. 814, 267 P. 2d 509), and in a prosecution for forging time checks (In re Carr, 28 Kan. 1).
The Supreme Court of Utah made a clear statement of the rule in State v. Graham, 23 Utah, 278, 64 Pac. 557, where it was said:
“. . . Either, first, the offense must be divisible, and each part be unlawful in and of itself and committed at a different time and place; or, second, the offense must consist of more than one act, each of which acts or effect of such acts must constitute an unlawful element of the offense, without the presence of which the offense could not be consummated.
“The mere existence, in some other county than the place of trial, of acts or conditions of the defendant, lawful in and of themselves, but necessary to be alleged and proven, in order to establish the crime as charged, do not invoice the power of this statute so as to permit the trial of the defendant in such other county.” (p. 288.)
The rule was recognized in Oklahoma in Rogers v. State, 14 Okl. Cr. 235, 170 Pac. 269, by the following statement:
"If it be admitted that the receipt of possession of the property is to be . deemed an act ‘requisite to the commission of the offense,’ we do not think this would sustain the position of the prosecution, for it is not every act required to consummate the offense that falls within the meaning of this section. But the limitation is ‘the acts or effects thereof,’ which clearly means that there must be a wrongful act done which was necessary to the commission of the offense or to accomplish its purpose in one or the other of the counties. Our constitutional provision (section 20, article 2) entitling the defendant to be tried by a jury in the county in which the crime was committed could hardly be construed to authorize a prosecution for a crime in a county where the acts and intentions of the defendant were without criminality. . . .” (p.239.)
The language has’ also been considered by courts of other jurisdictions in considering venue in a prosecution for obtaining money by false pretenses (State v. Scott, 190 Minn. 462, 252 N. W. 225; Carroll v. State, [Oklahoma Criminal] 347 P. 2d 812); in a prosecution for murder (State v. Bowling, 243 Or. 344, 413 P. 2d 421), and in a prosecution for bookmaking on horse racing (State v. Morano, 134 N. J. L. 295, 47 A. 2d 419).
The state relies heavily on a quotation from 22 C. J. S., Criminal Law, §177, p. 436, where the general rule is stated as follows:
“As a general rule, accused is answerable only in the county where the crime, or some part or effect thereof, was committed or occurred, and such a statute does not apply where the crime is complete in one county. A single, indivisible offense, not consisting of several parts, is not within the operation of the statute. Before it can become operative in any criminal case, one of two things must appear: Either the offense must be divisible, and each part must be unlawful in and of itself, and committed at a different time and place, or it must consist of more than one act, each of which acts, or the effect of each, must constitute an unlawful element of the offense, without the presence of which the offense could not be consummated.” (Emphasis supplied.)
The above quotation properly states the general rule and is helpful here, but the statement continues and it is on the continuation that the State relies. We quote:
“However, many statutes are not so restricted and permit venue to be laid in any county wherein the effects of the offense or any act requisite to its consummation took place, and such a statute applies although all of the essential elements of the crime are committed in one county where the intended consequences thereof occur in another county or the effects necessary to consummate the intended unlawful purpose occur in another county.” (Emphasis supplied.)
The last quoted statement is misleading. As we have previously-stated, the same language is used in all of the states in this particular venue statute. If “many of the statutes are not so restricted” it is not because of the difference in the language used but it must be in the construction by the courts of the language used.
As authority for the last quotation above cases are cited only from the states of California and New York. These states are two of the few that do not have a provision in their constitutions restricting venue for criminal prosecutions. The courts of these two states have no constitutional restrictions on their interpretation of venue statutes.
Whether or not the California courts have placed an unreasonable construction upon the venue provision need not be considered here. It will suffice to say that our constitution will not permit such a construction if our statute is to be held valid.
It would also appear that if the Court of Appeals of New York ever approved of the rule as set out in the last quotation from Corpus Juris Secundum it no longer does so. In the case of People v. Kohut, 269 N. Y. S. 2d 350 (1965) the defendant was indicted for asking for and receiving unlawful fees in performance of his duties as commissioner of public safety and moved to dismiss indictment. The Supreme Court, Criminal Term, New York County, held that it was without jurisdiction to try defendant where agreement to take fees was made in Chicago, receipt of fees took place in Nassau County, and the only event occurring in New York County was creation of a corporation to conceal receipt of illicit funds.
In sustaining the motion to dismiss the indictment the judge stated - in an opinion beginning at page 353:
“A review of the authorities on these points, however, discloses that not every act, occurrence, or effect in some way connected with the commission of a crime is jurisdictionally significant (Murtagh v. Leibowitz [1951] 303 N. Y. 311, 101 N. E. 2d 753, 30 A. L. R. 2d 1259; People v. Spivak [1924] 237 N. Y. 460, 143 N. E. 255; People v. Zimmer [1917] 220 N. Y 597, 115 N. E. 1047, aff’g 174 App. Div. 470, 160 N. Y. S. 459; People v. Steinberg [2d Dept. 1956] 2 App. Div. 2d 701, 152 N. Y. S. 2d 979; People v. Conforti [Kings Co. Ct. 1947] 72 N. Y. S. 2d 458). For an act or effect to be accorded significance, it must be established that the alleged jurisdictional incident was ‘essential in the consummation of the crime alleged in the indictment,’ (People v. Mitchell [4th Dept. 1900] 49 App. Div. 531, 535, 63 N. Y. S. 522, 524, aff’d 168 N. Y. 604, 61 N. E. 182), or constituted ‘one or more of [the] substantive and material parts’ of the crime (People v. Nicoll [1956, 4th Department] 3 App. Div. 2d 64, 69, 158 N. Y. S. 2d 279, 286). . . . In view of the fact that the Court of Appeals in Murtagh v. Leibowitz, supra, reversed the order of the Appellate Division denying a writ of prohibition, the opinion of the dissenters in the latter court (Johnston and MacCrate, JJ.) takes on particular significance (Applicat’n of Murtagh [2d Dept. 1951] 278 App. Div. 512, 105 N. Y. S. 2d 752). On the point in question, Justice Johnston wrote (at p. 515, 105 N. Y. S. 2d at page 755): .‘In my opinion, to come within section 134 of the Code, the. act in question must be requisite to the consummation of the offense defined in the statute. People v. Mitchell, 168 N. Y. 604, 607-608, 61 N. E. 182, 183-184. If the act is not part of the offense defined in the statute, it is not “requisite to the consummation of the offense,” even though it may be an incident ... of the crime charged.’ (Emphasis added.)” (Emphasis supplied.)
The Appellate Division of the Supreme Court reversed the lower court and denied the motion to dismiss the indictment. (People v. Kohut, 25 A. D. 10.)
The Court of Appeals reversed the Appellate Division approving the action of the trial court'with this simple statement:
“Order reversed and indictment dismissed. The crime charged in the indictment (taking unlawful fees, Penal Law, Consol. Laws, c. 40, § 1826) was committed, if at all, in Nassau County (cf. Matter of Murtagh v. Leibowitz, 303 N. Y. 311, 316-317, 101 N. E. 2d 753, 754-755, 30 A. L. R. 2d 1259). Section 134 of the Code of Criminal Procedure is inapplicable.” (People v. Kohut, 269 N. Y. S. 2d 715, 716.)
The court of last resort for the state of New York appears to have placed its. approval on the general rule that for an act or effect to be accorded significance, it must be established that the alleged jurisdictional incident was essential in the consummation of the crime alleged in the indictment.
We are forced to conclude that there was no act or the effect of an act essential to the consummation of the crime charged which took place in Reno County and the venue for the prosecution of the crime charged does not lie in such county.
There is some division of authority as to whether venue is a jurisdictional or a procedural matter. The division of authority does not require an academic discussion of terms. In State v. Fields, 182 Kan. 180, 318 P. 2d 1018, this court stated:
“Under the provisions of G. S. 1949, 62-401 the venue of an offense is jurisdictional and it must be proved to establish the jurisdiction of the court (Hagan v. The State, 4 Kan. 75 [2d Ed.].) . . .” (See, also, State v. Williams, 122 Mont. 279, 202 P. 2d 245; Anderson v. Commonwealth, (Kentucky) 349 S. W. 2d 826.)
It will also be noted that the Kansas legislature used the word “jurisdiction” in fixing the locale for prosecution of public offenses. (K.S.A. 62-404 to 408 and 62-410.)
We must conclude the prosecution of an accused, over his objection, in a local jurisdiction other than that fixed by the legislature is void.
We must also conclude that a justice of the peace has no jurisdiction to hold preliminary hearings on offenses committed in counties other than the one in which he was elected. The juris-’ diction of justices of the peace is fixed by K. S. A. 62-201 by the following language:
“The following magistrates shall have power to cause to be kept all laws made for the preservation of the public peace, and, in the execution of that power, to require persons to give security to keep the peace, in the manner provided in this article: . . . justices of the peace, in their respective counties; . .
We also consider K. S. A. 62-604 which provides for proceedings where the offender has fled from the county where the offense was committed:
“Upon complaint made to any magistrate of any county in this state that a criminal offense has been committed, and that the offender has fled from the county in which the offense was committed, such magistrate shall issue a warrant, directed to an officer of his own county or of the county in which the offense was committed, requiring the offender to be apprehended and taken before some magistrate of the county where the offense was committed, to be dealt with according to law.”
It will be noted that even a fleeing offender must be taken before a “magistrate of the county where the offense was committed.”
It appears that the State suggested to the court below that if it found the venue was not in Reno County it should apply K. S. A. 62-1442 which provides:
“When it appears at any time before verdict or judgment that the defendant is prosecuted in a county not having jurisdiction, the court may order the venue of the indictment or information to be corrected, and direct that all the papers and proceedings be certified to the proper court of tire proper county, and recognize the defendant and witnesses to appear at such court on the first day of the next term thereof, and the prosecution shall proceed in the latter court in the same manner as if it had been there commenced.”
The statute is not applicable here. The statute anticipates at least a partial trial in the district court. Here the district court had not yet obtained jurisdiction. Prosecutions can take place in the district court only by indictment or information. There has been no infor mation filed. There was no information to correct. The prosecution had not reached the stage where the statute became applicable.
We are constrained to hold that the magistrate was without venue jurisdiction to hold the preliminary hearing and commit the accused.
The judgment is reversed with directions to the district court to discharge the petitioner.
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The opinion of the court was delivered by
O’Connor, J.:
The defendants, Clifford N. Stoughton and Best Cabs, Inc., have appealed from a judgment entered on the verdict, awarding the plaintiff, Forrest W. Howard, $13,518.06 for injuries and property damage sustained by him in an automobile-taxicab collision in Wichita on October 25, 1961. Plaintiff, accompanied by his wife, was driving east on McCormick street, and Stoughton was proceeding north on Seneca street. The vehicles collided in the intersection, with the taxicab striking plaintiff’s automobile on the right side. Liability was admitted prior to trial, and the case was tried on the issue of damages only.
The defendants raise various trial errors, as well as rulings on post trial motions, and also challenge the jury’s verdict as having been rendered under the influence of passion and prejudice.
Defendants first complain that the trial court erroneously admitted evidence consisting of the testimony of the investigating officer, Edmond T. Dorr; that of Kenneth Razak, an expert witness; and the motion pictures and still photographs of the automobiles taken immediately after the collision. The thrust of defendant’s argument is that this evidence was highly prejudicial, in that it pertained only to the issue of liability rather than damages. The plaintiff, on the other hand, seeks to justify the admission of such evidence on the theory that since the defendants vigorously contended throughout trial that plaintiff was not seriously injured, it became necessary to show the likelihood of injury, and how plaintiff’s injuries were sustained as a result of the collision.
The deposition of Officer Dorr taken the Friday immediately preceding trial, and prior to the defendants’ admitting liability, was read into evidence by the plaintiff. The officer identified a portion of a motion picture film taken immediately after the collision which showed only the vehicles. He likewise identified certain exhibits describing the location of the automobiles, the distances traveled by them after impact, as well as a diagram and chart that had been made from measurements taken at the scene. Dorr also testified about skid marks, braking speeds and reaction time, and gave his opinion of the speeds of the vehicles prior to the collision.
Mr. Razak, a consulting engineer, was called by the plaintiff and qualified as an expert in the fields of mechanical dynamic's, structural analysis and engineering. His testimony explained experiments that had been made with respect to automobile accidents occurring at intersections and the effect of the various forces resulting therefrom upon an occupant’s body. Using the salient facts and evidence, Razak described the forces which, in his opinion, were applied to the plaintiff’s body at the time of this collision.
In response to a hypothetical question that included Razak’s conclusions regarding the forces applied to plaintiff’s body, Dr. Robert Rex Lee, plaintiff’s physician, testified that the application of such forces “would have a marked contusion effect, bending, possibly tearing effect, and possible injury effect to the cartilage portion of the lumbosacral spine and of the cervical spine.”
The court gave the following limiting instruction in its charge to the jury:
“You are instructed that the testimony contained in the deposition of Edmond Dorr, including the charts, film and photographs, was admitted in evidence by the Court, and can only be considered by you for the purpose of proving the injuries to the plaintiff, or the likelihood of injury to the plaintiff by virtue of the impact of the two vehicles. You cannot consider such evidence for any other purpose, since the defendants have admitted their negligence was the proximate cause of the injury to the plaintiff and damage to his property.”
The testimony of Officer Dorr was relevant to show the nature and' extent of damage to the cars from the impact, and it established a foundation for the testimony given by Mr. Razak. The court in its instruction carefully limited Dorr’s testimony to the issue of damages, and under the circumstances, such admission was not error.
Defendants’ assertion that the introduction of the motion pictures and still photographs taken therefrom injected undue prejudice and emotion in the minds of the jury is likewise unjustified. At most, the pictures illustrated the position of the automobiles, the damage to each when they came to rest, and were relevant to show the magnitude of the collision. Defendants’ argument that the film emphasized the “distress, fear and shock” of the injured persons as well as “other dramatic and influencing scenes,” is not borne out by the record. Approximately thirty-five seconds of the film were actually shown to the jury, and it would appear that the film was stopped prior to showing any of the individuals involved in the accident. The portion shown was identified by Officer Dorr as depicting “the positions of the cars after the accident.” Still photographs and motion pictures, if shown to be a. likeness of what they purport to represent, are, in the discretion of the trial court, admissible in evidence as aids to the jury in arriving at an understanding of the evidence, the location or condition of an object, or the circumstances of an accident when any such matter is relevant. (29 Am. Jur. 2d, Evidence §§785, 786; 32 C. J. S., Evidence §716. Also, see, Millers’ Nat. Ins. Co., Chicago, Ill. v. Wichita Flour M. Co., 257 F. 2d 93 [10th Cir. 1958].) We find no abuse of discretion in the admission of the pictures.
Defendants further predicate error on the admission of Razak’s testimony. No complaint is made that he was not qualified as an expert. The only objection lodged at trial and now urged is that he was not qualified to testify about injuries to the human body, and further, that his testimony was not germane to the issue of damages. We do not agree. A reading of the record discloses that Razak’s testimony was confined to the application of force systems to the human body resulting from an intersection collision. It was Dr. Lee who testified concerning the effect of these forces upon the body, and his conclusions tended to confirm the nature and extent of the injuries complained of by the plaintiff. The defendants throughout the case strenuously denied that plaintiff suffered any serious injuries in the accident, and the testimony of their medical expert tended to support their position. To overcome such defense, plaintiff’s counsel employed the trial technique of showing by expert testimony the likelihood of injury and the manner in which plaintiff’s injuries were sustained.
The record discloses that Razak, as a part of his experience and training, was familiar with the analyses and results of experiments conducted with vehicles in intersection collisions of this nature. As a basis for his conclusions he was aware of the contents of Officer Dorr’s deposition, and he had studied the chart, diagram and pictures previously mentioned. In addition, he had read the discovery deposition of the plaintiff describing the position of the car seat and plaintiff’s body after the impact. Although Razak was asked a hypothetical question containing only a portion of these facts, it appears that he had knowledge of substantially all the material facts necessary to afford him a reasonably accurate basis for his conclusions.
The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge. (Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822.) There is no requirement that questions be hypothetical in form when an expert witness is presented the facts in some other acceptable manner. (K. S. A. 60-458; Gard, Kansas Code of Civil Procedure, §458.) He may render an opinion based on facts or data within his personal knowledge or observation, or made known to him at the hearing. (K. S. A. 60-456[b]; Van Welden v. Ramsay’s, Inc., 199 Kan. 417, 430 P. 2d 298.) In this state expert testimony relating to automobile accidents has been held admissible in the discretion of the trial court. (McElhaney v. Rouse, 197 Kan. 136, 144, 415 P. 2d 241, and cases cited therein. Also, see, Campbell v. Clark, 283 F. 2d 766 [10th Cir. 1960].)
Under the facts and circumstances presented here, we are unable to say that the admission of Razak’s testimony was erroneous.
Before we turn our attention to the remaining points, a resumé of plaintiff's evidence regarding his injuries and damages is deemed appropriate.
In describing the collision, Howard stated that after his car stopped he found himself eighteen inches to two feet out of the left door, still sitting on the seat, which had also protruded from the left side of the car — his arms, and shoulders remaining on the inside, his hands still holding the steering wheel. As a result of the collision Howard was hospitalized for approximately two weeks and received treatment for his injuries — a twisted back, pain in the shoulders, neck, arms, and right leg and hip. This was followed by a recuperation period at home for several weeks, during which time he experienced considerable difficulty in getting in and out of bed. Howard remained under the care of Dr. Lee and received weekly treatments through June 1962. He was released in August to return to work. Total medical expenses incurred were $476.56.
Plaintiff was forty-five years of age at the time of the accident. His occupation was that of flight-line mechanic. He had been employed at an aircraft plant for approximately ten years, his hourly wage being $2.50; but at the time of the accident he was unemployed, having voluntarily terminated his employment about three weeks previously. After the accident, efforts on his part to perform labor resulted in an aggravation of his condition. Unable to find employment in the Wichita area in his line of work because of his condition, Howard moved out of the state. During the years 1962 to 1964 he held several different jobs on a temporary basis, but because he was not able to do the same type of work, or be as active as he had been prior to the accident, his income was reduced appreciably. In 1961 his income was $3,571.02, but in 1962 and 1963 he earned only $229.56 and $400, respectively.
At the time of trial plaintiff still complained of headaches and pain, which bothered his shoulders, back and head, and at the most severe stages prevented him from turning his head. He was taking analgesics two or three times a day to relieve the condition.
Dr. Lee described plaintiff’s complaints and disability as resulting from a whiplash injury and lumbosacral sprain attributable to the accident. Although Dr. Lee had seen the plaintiff for some time prior to the accident, he had never treated him for any back complaints. Dr. Lee pointed out that plaintiff had a pre-existing arthritic condition which would cause his disability to be more severe from the injuries sustained in the accident than in the case of injury to a normal spine. Dr. Lee was of the opinion that there was a possibility a fusion might be required on either the cervical or lumbosacral spine if a muscle loss developed in those areas, the cost of the surgery being from $900 to $2000.
In contending the verdict was rendered under the influence of passion and prejudice, the defendants complain specifically of three evidentiary matters: (1) the showing of the motion pictures, (2) testimony of plaintiff’s wife relating to her condition upon leaving the hospital, and (3) evidence of plaintiff’s dire financial condition previous to and at the time of the accident. The first point has already been discussed. The second point is without substance for the reason Mrs. Howard testified only that she was unable to aid her husband when they both left the hospital, and this evidence was elicited without objection. (K. S. A. 60-404.) The third contention is patently untenable in view of the record, and merits no discussion.
We cannot accept defendants’ suggestion the verdict was so excessive as to indicate passion and prejudice on the part of the jury, and thus required a remittitur. The evidence already detailed adequately demonstrates the nature and extent of the plaintiff’s injuries and his resultant damages. The rules for testing a verdict when challenged as being excessive were stated in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, and have been consistently adhered to in many of our subsequent decisions (e. g., Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438; Kettler v. Phillips, 191 Kan. 486, 382 P. 2d 478; Slade v. City Cabs, Inc., 193 Kan. 105, 392 P. 2d 127).
All the points briefed and argued, including the denial of defendants’ motion for new trial, have been considered, but we think what has been said effectively governs the disposition of this case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal was taken from a summary judgment entered in favor of defendant in an action growing out of the establishment of a township sewage district in Topeka township, Shawnee county, Kansas.
The primary issue on appeal is whether there remained in controversy any genuine issue as to any material fact at the time such judgment was entered.
The plaintiff Stewart Paul filed a petition seeking to compel the Topeka Township Sewage District No. 2 to construct a lateral sewer line which would serve a tract of land lying south of a development referred to as Pauline or in the alternative to pay damages for failure to supply sewer service.
Topeka Township Sewage District No. 2 will be referred to herein as the defendant or as the sewage district.
The sewage district filed answer to plaintiff’s petition admitting plaintiff’s property was in the main sewage district but denying his property was in any lateral sewer district and denying he was legally entitled to service.
At a pre-trial conference by stipulation of the parties the following exhibits bearing upon this controversy were admitted in evidence: (1) A map showing the boundaries of the main sewage district, the areas covered by lateral sewer districts, and the areas not included in any lateral sewer district but within the main district; (2) A resolution by the governing body of the main sewage district, creating prescribed areas for three lateral sewer districts within the main sewage district as provided in K. S. A. 80-2012; and, (3) A resolution by the governing body spreading assessments against various tracts of land, including plaintiff’s land, for costs of constructing the main, outfall and intercepting sewers in the main sewage district and spreading separate assessments for costs of constructing the separate lateral sewers in lateral sewer districts number 1, 2 and 3 as authorized by K. S. A. 80-2007 and 80-2012.
It was admitted at the pre-trial conference and it is admitted on appeal that plaintiff’s property is in the main sewage district.
It was admitted at the pre-trial conference and it is admitted on appeal that plaintiff’s property is not located within the described boundaries of any of the three lateral sewer districts as set forth in the resolution establishing them and as outlined on the map referred to above.
The main sewage district was created and established in January 1958 and the electors thereafter authorized construction of the sewage system. Lateral sewer districts were created by a resolution of the township board in August 1958 as authorized by K. S. A. 80-2012 and 80-2003. Plaintiff’s property was assessed for the costs of constructing the main sewer in the main sewage district. It is agreed for the purposes of this action that this was proper. In the assessment resolution, however, the governing body of the main sewage district also assessed plaintiff’s property for construction of lateral sewers in lateral sewer district No. 2. Plaintiff and his predecessors in interest have paid sewer assessments for the main sewer and for the lateral sewers in lateral sewer district No. 2. There is no lateral sewer service presently available to plaintiff’s property although the sewage system was completed and the funds raised by bond issue have been expended. Lateral sewer district No. 2 as outlined on the maps and in the resolution lies north of an area known as Pauline. Plaintiff’s property lies south of Pauline. Pauline, as outlined on the maps and in the resolution, is in lateral district No. 1. Plaintiff’s property is not contiguous or adjacent to any of the boundaries of lateral district No. 2 as outlined on the maps and in the resolution.
The main thrust of plaintiff-appellant’s argument is that even though his property is not within the boundaries of any lateral sewer district described in the resolution creating these districts, his property was included in lateral district No. 2 by the assessment resolution. He contends the assessment resolution amended or superseded the prior resolution creating the lateral districts and extended the boundaries of lateral district No. 2 to include his property. The remedy he seeks in mandamus and in contract is premised upon the strength of this argument.
The defendant-appellee’s argument, in summary, is the main sewage district is a creature of statute and the authority to create and enlarge lateral sewer districts is governed and limited by the statute. Stated in another way, a resolution to create a lateral sewer district as required by a specific statute cannot be amended or superseded by a later assessment resolution passed for the purpose of raising money to pay for construction.
Defendant further claims the construction of any lateral sewer lying outside the lateral sewer districts and any contract for the same are ultra vires; and, that mandamus cannot be used to compel construction of that which they have no legal right to do.
The appellant cites City of Atchison v. Price, 45 Kan. 296, 25 Pac. 605, as authority for his contention that the assessment ordinance had the effect of extending the boundaries of a previously established lateral sewer district. We do not consider that case controlling. The decision arose under a statute existing in 1889 which was quite general in nature and did not specifically outline the manner of creating a district as outlined in the present statute.
The plaintiff first contends that the trial court erroneously entered summary judgment based upon a mistaken conception that appellant was required to introduce or present sufficient evidence at the pre-trial conference to sustain his cause of action. Some justification for plaintiff’s contention appears in the letter from the judge announcing his decision and directing a journal entry to be prepared.
The circumstances under which entry of a summary judgment may be proper were set forth in Brick v. City of Wichita, 195 Kan. 206, 211, 403 P. 2d 964, as follows:
“A summary judgment proceeding is not a trial by affidavits, and tire parties must always be afforded a trial when there is a good faith dispute over the facts. (United States v. Kansas Gas and Electric Company, 287 F. 2d 601 [10th Cir. 1961].) A motion for summary judgment cannot be made a substitute for a trial either before a court or jury, and a plaintiff who states a cause of action which entitles him to a trial by jury is entitled to have his case tried in that way .and cannot be compelled to submit his evidence in the form of affidavits in resistance to a motion for summary judgment and have the issues determined by such motion. (United States v. Broderick, 59 F. Supp. 189 [D. C. Kan. 1945].)”
In Jarnagin v. Ditus, 198 Kan. 413, 417, 424 P. 2d 265, Justice O’Connor, speaking for this court, succinctly stated the basis upon which a summary judgment will stand in these words:
“When ruling on a motion for summary judgment, a court must resolve against the movant any doubt as to the existence of a genuine issue of material fact; the evidentiary material submitted by the party opposing the motion must be taken as true, and such party must be given the benefit of all reasonable inferences that may be drawn from such material.” [Citing cases.]
In Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 790, 420 P. 2d 1019, this court said:
“This court has now laid down a definite yardstick for the granting of such judgments. Generally it must appear conclusively that there remains no genuine issue as to a material fact and that one of the parties is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial will not justify a summary judgment where there remains a dispute as to a material fact which is not clearly shown to be a sham, frivolous or so unsubstantial that it would obviously be futile to try it. A party against whom a summary judgment is being considered must be given the benefit of all reasonable inferences that may be drawn from the facts under consideration.” [Citing cases.]
In Secrist v. Turley, 196 Kan. 572, 575, 412 P. 2d 976, we stated:
“In the final analysis a court should not determine the factual issues on a motion for summary judgment but should search the record for the purpose of determining whether a factual issue exists. If there is reasonable doubt as to the existence of a material fact a motion for summary judgment will not lie. No matter how the explanation of the rule is phrased we always return to tire language of the rule, there must be left ‘no genuine issue of any material fact.’ ”
Whether the trial court applied erroneous reasoning to arrive at entry of a summary judgment is immaterial if there was indeed no genuine issue remaining as to any substantial fact material to plaintiff's action. We have repeatedly held wrong reasoning given for a correct judgment is not prejudicial error and will not justify reversal on appeal.
In Smyth v. Thomas, 198 Kan. 250, 257, 424 P. 2d 498, the Chief Justice speaking for this court expressed the foregoing rule thus:
“. . . a judgment, however, correct in result, is not to be set aside on the ground it was arrived at through the process of erroneous reasoning. (Kirkpatrick v. Ault, 174 Kan. 701, 706, 258 P. 2d 262).”
In order to understand the questions presented on appeal some familiarity with the statute relating to the creation of township sewage districts is necessary. K. S. A. 80-2001 et seq. provide a method for creating and establishing a sewage district in a township. The township board is ex officio its governing body. The township board may create a sewage district by resolution published as provided by K. S. A. 80-2003. The governing body is then authorized to employ engineers to prepare plans and specifications for construction of main sewers and disposal of sewage for the main sewage district. These plans are to include “such lateral sewer districts together with an estimate of the cost of construction thereof as may be deemed immediately necessary.”
When these plans and specifications are approved they shall be filed with the county clerk of the county in which the township is located and be available for inspection by all persons interested. Before any improvements are constructed as specified in these plans an election must be called in the main sewage district as provided in K. S. A. 80-2005. The method of assessment to pay bonds is outlined in the statute and includes notice to owners of the land affected and affords opportunity to make complaints.
Lateral sewer districts may be created by resolution as provided in K. S. A. 80-2012 which specifically requires “taxes and special assessments for such lateral sewers shall be levied only against the property within such lateral sewer district.”
The boundaries of a sewage district and of any lateral sewer district may be enlarged by filing a petition with the governing body of the district and in such case special assessments are levied against the added territory to pay a proportionate cost of all previous improvements usable by the territory added.
It is clear, under the posture of the case as it appeared on motion for summary judgment, plaintiff’s property was in the main sewage district as it existed by the resolution required by K. S. A. 80-2003. It is equally clear his property was not included in the boundaries of any of the three lateral sewer districts established by the resolution required by K. S. A. 80-2012. His property was not furnished a lateral sewer under the plans and specifications of the engineers approved by the electors in the main sewage district. However, his property was included in the resolution assessing and levying costs of both the main sewers and the lateral sewers for lateral district No. 2. Plaintiff has paid all assessments from 1959 to the present time.
The central focal point of this appeal is whether, as a matter of law, property lying outside of lateral sewer districts may legally be drawn into and made a part of a lateral sewer district by resolution assessing and levying costs of a lateral sewer. We hold under the facts of this case it cannot.
A township sewage district is a quasi-municipal corporation. It is a subdivision of a township. A township is created by the state and has only such power and authority as may be conferred upon it by statute. (Salt Creek Township v. Bridge Co., 51 Kan. 520, 33 Pac. 303.) Likewise a city is a creature of the legislature and exercises only such power as the legislature confers. (La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448.) A township sewage district is also limited to such power and authority as may be conferred upon it by statute. (Bishop v. Sewer District No. 1, 184 Kan. 376, 336 P. 2d 815.)
The statute authorizing the creation of township sewage systems provides in detail the manner in which the power to form lateral sewer districts may be exercised by the governing body. K. S. A. 80-2012 directs this be done by a resolution in the same manner as is provided in section 80-2003 which relates to the creation of a main sewage district. The latter section requires that the resolu tion describe the boundaries of the proposed area to be included. The resolution must be published for six days in the official county newspaper or for two consecutive weeks if published in a weekly newspaper.
The assessment resolution by which plaintiff claims to have been placed in lateral sewer district No. 2, or by which the original resolution was amended or superseded, does not comply with the requirements of K. S. A. 80-2012 and 80-2003 as to publication or description of boundaries. Other reasons for our decision appear in the statute.
The statute provides its own method for enlargement of boundaries of any sewage district or lateral sewer district. (K. S. A. 80-2013.)
The entire statute indicates an intention to require the property owners to pay only for their proportionate share of the benefits accruing from the construction of the lateral sewer in their own particular district.
It does not appear that the legislature desired to permit the governing body of a main sewage district to amend or supersede a resolution establishing lateral sewer districts by the simple expedient of including additional areas in their assessment resolutions.
For the foregoing reasons the resolution spreading assessments did not amend or supersede the resolution creating the lateral sewer districts and plaintiffs property is not in any lateral sewer district. K. S. A. 80-2012 in pertinent part provides:
“. . . and upon the formation of such lateral sewer districts, the governing body of the sewage district shall have power to construct lateral sewers therein, and shall levy taxes and special assessments against the property in such lateral sewer districts, . .
It further provides:
. . except that the taxes and special assessments for such lateral sewers shall be levied only against the property within such lateral sewer district, . . .”
We view the above statute as prohibiting the defendant sewer district from contracting and constructing a lateral sewer to plaintiff’s property because it would lie outside of any lateral sewer district. Taxes to pay the costs of any lateral sewer are provided for by a levy against property in the lateral sewer district benefitted thereby. A lateral sewer to plaintiff’s property would benefit no present lateral sewer district. A sewer to his property would not lie in any lateral sewer district.
In City of Fort Scott v. Kaufman, 44 Kan. 137, 140, 24 Pac. 64, in an analogous situation the court said:
“In this case the mayor and council determined to construct sewers by districts, and created sewer district No. 3, and provided for the construction of a certain number of lateral sewers therein, but further provided for the construction of a discharging sewer, with which these lateral sewers connected, but 2,591 feet of whose length was entirely outside the boundaries of sewer district No. 3 as they established that district, but its whole length was within the boundaries of the city. Whatever may be said of the inequitable operation of this statute, it seems that its meaning is so plain that serious doubts ought not to arise as to its application. In specific terms it provides that the costs and expenses of the construction of the sewer shall be assessed against the lots and pieces of ground contained in the district in which it is situated. The cost of that discharging sewer of 2,591 feet, that is expressly stated and agreed to be entirely and wholly outside the limits of sewer district No. 3, and is not in the district, cannot be assessed against that class of property in sewer district No. 3 that is taxable for that purpose. . . .”
Identical reasoning applies to the present case.
Now we turn to the question of whether mandamus is the proper remedy in the present case.
K. S. A. 60-801 reads:
“Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
A governmental officer cannot be compelled by mandamus to do an unauthorized act. (Hawkins v. Gregory, 138 Kan. 477, 26 P. 2d 247; Sharpless v. Buckles, 65 Kan. 838, 70 Pac. 886; 34 Am. Jur. Mandamus §§ 191, 199; 48 A. L. R. 2d 1222.)
Plaintiffs action to require defendant to construct a sewer must therefore fail when based upon mandamus. It must also fail if based upon enforcement of an implied or express contract with the township board to do an unauthorized act. Such a contract would be ultra vires and void. (Salt Creek Township v. Bridge Co., supra.; J. D. Adams Co. v. Dor Township, 153 Kan. 623, 113 P. 2d 138.)
The alternative claim in plaintiff’s petition is for damages caused by negligence of the governing body of the sewer district in erroneously assessing plaintiff’s property. The plaintiff cites no case which holds that a quasi-municipal corporation such as a township sewage district may be liable in tort for the negligence of its governing body in failing to perform its administrative duties. It is quite generally held a municipality is not liable for negligent acts of its officers in the performance of a governmental function unless such liability is expressly imposed by law. (Wray v. City of Independence, 150 Kan. 258, 92 P. 2d 84; Rhodes v. City of Kansas City, 167 Kan. 719, 208 P. 2d 275.)
In Stolp v. City of Arkansas City, 180 Kan. 197, 202, 303 P. 2d 123, it was said:
“The general rule is well established that where there is an exercise of power by a city or town which serves the general public at the expense of all without charge, the city or town is acting in a public or governmental capacity and is not liable for torts committed by its agents, servants, and employees in the furtherance of that activity.” [Citing cases.]
The mistakes and omissions of the governing body of the sewage district with respect to the erroneous assessment might give right to an action to recover the amounts paid, but such acts were undertaken in their capacity as a governing body of the sewage district in the performance of a governmental function and no action in tort for negligence can be maintained.
Under the pleadings and facts stipulated by the parties, taken in the light most favorable to the plaintiff, against whom the motion for summary judgment was filed, no genuine issue of any fact remained which could be material to the outcome of the action. The defendant, a quasi-municipal corporation, as a matter of law, could not furnish sewer service to plaintiff’s property. It was unauthorized by law to contract to furnish such service. It is not legally liable in tort for the negligent acts or omissions of its governing body in failing to carry out administrative duties of a governmental nature.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
This is a workmen’s compensation case.
The only question presented is whether on the date of the workman’s accidental fatal injury his mother — the claimant — was partially dependent upon him for support.
The district court held that she was not — and claimant mother has appealed.
Highly summarized — the record shows the following:
The workman — hereafter referred to as the son — sustained an accidental fatal injury on June 25, 1965. He was unmarried and lived in Kansas City. His mother lived in Ronner Springs with her husband — who was the son’s stepfather — and their several children. The mother’s husband had been unemployed for several years, and for some time the son had given money to his mother to “help out on the grocery bill.” He also had permitted her to charge groceries to his account at a local store.
On March 15, 1965, the son obtained a job for his stepfather which paid $49.00 per week. His mother, in the meantime, had been earning $30.00 per week. The son’s earnings were $59.00 per week. Therefore, as of June 25, when the son sustained his fatal injury, his mother and her husband were earning $79.00 per week.
The compensation examiner found against claimant. The director approved that finding. After reviewing the matter, the district court indicated by a letter to counsel that had the son died prior to March 15 — the date the stepfather got a job — it would have been obliged to rule favorably on the mother’s claim of partial dependency — but that subsequent to March 15 any money given by the son to his mother could be classed only as “filial beneficence”— and denied the claim. The journal entry of judgment specifically recited that the son left no one wholly or partially dependent upon him for support or maintenance.
In pressing her appeal from that ruling counsel for claimant mother concede that dependency is a question of fact and that a finding will not be disturbed when supported by evidence (Peters v. Peters, 177 Kan. 100, Syl. 2, 276 P. 2d 302; Lees, Administrator v. White, 197 Kan. 118, 415 P. 2d 272), and that dependency is to be determined as of the date of the accidental injury (K. S. A. 44-508 (j), 44-510 (2) (c); Dean v. Hodges Bros., 170 Kan. 333, 336, 224 P. 2d 1028). They argue, however, that the court erred in finding that the situation was changed when the stepfather became employed — and, such finding being based on an erroneous conclusion of law — is therefore re viewable.
We think the contention is without merit. Regardless of the comment by the trial court when counsel were advised of its decision — the fact remains that the only question in this case is whether on June 25 — the date of the injury — the mother was partially dependent upon her son for support. As of that date — and for over three months prior thereto — the combined earnings of the mother and her husband were $79.00 per week. Counsel for the mother state there is no evidence to indicate that she ever received any support from her husband even after he went to work. There is no occasion here to discuss the moral and legal aspects of the duty of a husband to support his wife and family.
In Peters v. Peters, above, it was held—
“The degree of dependency in a workmen’s compensation case is a question of fact and findings with respect thereto will not be disturbed on appellate review when there is any evidence to support them.” (Syl. 2)
The finding here of no dependency is fully supported by the evidence and the judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This controversy commenced as an action to set aside a deed because of the mental incapacity of the grantor. It ended in a judgment cancelling the deed, and relief on the basis, of quantum meruit for the grantee. The grantors guardian has-appealed. No appeal was taken from the judgment cancelling the-deed.
The facts, most of which are the subject of conflicting evidence,, will be briefly stated.
Ann Whan and Mary Price were widows, each living alone in farm homes in Cloud County, a mile and one quarter apart. Mary was working in a cafe in the early part of 1957, at which time Ann asked her to quit work, help take care of Ann and be a companion to her as they were both lonely. Neither had children. No-definite arrangement was made for Mary’s compensation. Ann asked her to let it go for a while and they would make some kind of arrangement. Mary quit her cafe employment and gave her attention to Ann. At this time Ann was seventy-nine or eighty years of age and Mary was considerably younger.
As time went on Ann developed senile dementia and rather close attention became necessary. Mary gave Ann such, attention. There was no one else to do so. Mary kept a careful diary of her activities which was placed in evidence.
On April 9, 1964, Ann deeded one of her three quarter sections of land to Mary stating the consideration to be Ann’s love and affection for Mary and Mary’s kindness to Ann over a period of years. Ann’s relatives now became active. A guardian was appointed on May 25, 1964, and an action was brought to set aside the deed because of Ann’s mental incapacity.
Mary answered contending that the deed was executed by Aim during a lucid interval but that if the deed be set aside she should be granted, as an alternative and by way of counterclaim, judgment in the amount of $16,800.
The trial court heard the evidence and rendered judgment cancelling the deed because of the grantor’s mental incapacity. It also gave judgment to defendant, Mary, on the basis of quantum meruit in the sum of $8,175 less $100 which defendant admittted had been paid.
The plaintiff has appealed from the quantum meruit judgment contending that the trial court erred in its findings and conclusions as a matter of equity under the facts disclosed by the evidence. The trial court found:
“Sometime in the first part of 1957, defendant resigned her then position and agreed to render services for Ann Whan. Ann Whan agreed to pay her for such services, although no specific amount was agreed.
“It is established June 7, 1957, defendant began to render services, care and attention to Ann Whan. These services continued, sometimes at accelerated tempo, until and including May 5, 1964. Such services consisted of general care of an elderly farm lady without other friends willing to assume this responsibility, or relatives, except a few isolated instances, close enough to care for her needs and wants. Defendant during this period, conducted her own farming operations but was on constant call by Ann Whan. Many times such services were rendered at unusual times during the day or night and in very inclement weather. At times, when driving conditions were impossible, defendant would walk the approximate one and one-half miles between her home and that of Ann Whan.
“It is noted the quality of care and services rendered were not questioned. There is no evidence of inconsideration on the part of defendant or that she failed to respond to any request made by Ann Whan. In fact, such services, as above mentioned, included, at least in the last few years, total management of business affairs for Ann Whan. Regardless of the purpose for which defendant rendered these services, tire fact remains Ann Whan did receive benefits; benefits that were not furnished by anyone else, with minor exceptions.
“One of the services rendered by defendant was driving for Ann Whan. In most instances travel expenses were paid from Ann Whan’s account. Some gifts were made to defendant by Ann Whan, such as hay and posts. Otherwise, there was no evidence defendant received payment for her services. An' attempt was made by innuendo and insinuation to prove defendant appropriated money. More than innuendo and insinuation is necessary to establish what would amount to' fraud. No evidence was produced sufficient for a finding of appropriation, fraudulently or otherwise.”
An examination of the record discloses ample evidence to support the trial courts findings and conclusions.
The appellant, with admirable candor, admits there exists only a fact question and that the evidence is conflicting. He contends, however, that this being an equity case this court should weigh the evidence on appeal.
We cannot agree. An appellate court will not weigh conflicting evidence on appeal. (In re Estate of Schneider, 194 Kan. 223, 229, 398 P. 2d 281; Mathey v. Central National Bank of Junction City, 179 Kan. 291, 293 P. 2d 1012.) It is not concerned with the credibility of witnesses or the weight of their testimony. (Finnell v. Patrons Co-operative Bank, 193 Kan. 354, 394 P. 2d 116; Kramer v. Farmers Elevator Co., 193 Kan. 438, 393 P. 2d 998, and cases therein cited.) The determination of the weight and credence of oral evidence is exclusively a function of the trier of facts. (Gaynes v. Wallingford, 185 Kan. 655, 661, 347 P. 2d 458.) An appellate court is concerned only with evidence which supports a trial courts finding of fact and not with that tending to establish a different conclusion. (In re Estate of Osborn, 179 Kan. 365, 295 P. 2d 615.)
There being ample competent evidence to support the findings of the trial court, the judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, C. J.:
This is an appeal from a conviction of grand larceny —the subject of the theft being a pay-telephone owned by the telephone company in Wichita.
Highly summarized — the state’s evidence showed the following:
At about 8:30 in the evening of July 6, 1965, defendant Ward was stopped and arrested for speeding by Wichita police officers. In the front seat with him was a man by the name of Vogt. Through past “contact,” both were “known” to the officers. While checking defendant’s driver’s license the officers requested permission to search the car. Defendant replied — “Yes—go ahead.” About this time they observed a pay-telephone partially hidden under some dirty clothes in a basket on the floor of the car. Vogt had his foot on top of the basket. Both defendant and Vogt were then placed under arrest for larceny of the telephone. They were advised of their right to remain silent and to the presence of counsel. Further search of the car also produced a metal pry-bar. Under question ing at the scene of the arrest as to his possession of the telephone defendant professed “complete ignorance” concerning where he had been and what he had been doing that evening, and merely replied “What telephone?”
Earlier that evening a pay-telephone was stolen from a commercial washhouse (laundromat) in Wichita, and it was positively identified as the one found in defendant’s car. Paint chips on the pry-bar matched exactly the paint on the wall from which the telephone had been pried loose. The telephone was valued at $98.60.
Both defendant and Vogt were charged with the theft of the telephone. Vogt pleaded guilty. Defendant elected to stand trial and was convicted.
In this appeal five contentions are made.
The first is that the court erred in admitting into evidence the telephone and pry-bar found in the car — it being argued they were seized as a result of an illegal search — without a warrant. Throughout the trial defendant moved to suppress this evidence and the trial court heard the motion outside the presence of the jury. Defendant offered no evidence in support of his motion. The motion was properly denied. Entirely aside from the fact that defendant was under a lawful arrest for a traffic offense and under the circumstances the officers certainly were not required to blind-fold themselves from the obviously contraband property being transported in an automobile — the testimony of the officers was (and it was not refuted) that defendant gave them permission to search the car.
During the trial an official of the telephone company opened the coin box of the telephone and it contained $18.40 in coins. Over defendant’s objection the coins were admitted into evidence. It is argued that defendant was charged with the theft of the telephone instrument — and not the money contained inside it — and that such evidence was prejudicial. We find no merit in the contention. In the first place the contents of an instrument such as this were a part of it — secondly, it is a matter of common knowledge that coin machines are stolen for their contents and the evidence was admissible on the ground of showing motive.
The jury was given the usual instruction to the effect that the unexplained possession of property proved recently to have been stolen raises a presumption that the possessor is the thief. The instruction further stated that such possession, in order to warrant a conviction, must have been so recent after the time of the commission of the larceny as to render it morally certain that such possession could not have changed hands since the commission of the larceny. Although no objection was made to the giving of the instruction, which, it is conceded, is a correct statement of the law, it now is contended that its effect was to shift the burden of proof to defendant and that it was repugnant to his constitutional right to remain silent and not testify. Defendant offered no evidence at his trial. We find no merit in the contention. Under the facts of this case — where one is found driving around in possession of a pay-telephone — the instruction was particularly applicable, and it was properly given (State v. Grey, 154 Kan. 442, 444, Syl. 2, 119 P. 2d 468; State v. Sims, 192 Kan. 587, 589, 389 P. 2d 812; State v. Jenkins, 197 Kan. 651, 657, 658, 421 P. 2d 33). Also, on the question of the claim that the instruction in effect shifted the “burden of proof,” see The State v. Bell 109 Kan. 767, 770, 771, 201 Pac. 1110.
Finally, it is contended the evidence was contrary to and insufficient to support the verdict, and that the trial court erred in denying the motion for a new trial. We will not labor either point. It is sufficient to say that the evidence of guilt was overwhelming. In the very nature of things, people simply do not go around in possession of pay-telephones! Defendant has shown no error in the trial and his motion for a new trial was properly overruled.
The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
After being convicted by a jury of second degree burglary (K. S. A. 21-520) and grand larceny (K. S. A. 21-524), the defendant, Clarence E. Motley, has appealed from the judgment and sentence imposed by the Sedgwick county district court.
Early on the morning of May 8, 1965, the Continental Grill located at 1220 West Douglas in Wichita was burglarized and the sum of fifty dollars taken therefrom. Defendant was arrested and charged with the crimes. Subsequently, he, with his attorney, Paul Gray, waived preliminary hearing, and was bound over to district court for trial. An information was duly filed and trial was held, with John E. Pyles representing the defendant. Following the jury’s verdict, defendant filed a motion for new trial, which was overruled. Evidence being introduced that the defendant had a prior felony conviction, the district court, on October 21, 1965, sentenced him to the state penitentiary under the terms of the habitual criminal statute (K. S. A. 21-107a).
Through his present court-appointed counsel defendant raises several specifications of error, his principal complaint being that contrary to the provisions of K. S. A. 60-421 the trial court permitted, over objection, cross-examination of him about his prior conviction.
The admission of such evidence came about in this manner: State’s case against the defendant consisted mainly of an oral confession given shortly after his arrest and a written confession given by him two days later. The defendant took the stand in his own defense. On direct examination he not only denied committing the crimes but also denied the contents of both the oral and written statements. Defendant testified that although a statement was written by him, it was done at the direction of a detective, it was not his own words, he did not understand what he wrote, he gave the confession because the officers kept “hounding me” and he was “nervous and scared.”
Defendant’s cross-examination began as follows:
“Q. Mr. Motley, you’re from Chicago, right?
“A. Right.
“Q. How long have you been down in this area?
“A. About five years.
"Q. Now you’ve been in court before, is that right?
“A. Yes, sir.
“Q. And you were convicted of forgery and uttering prior to this time?
“Mr. Pyles: Your Honor, I’m going to object to this.
“Mr. Dugan: Well, Your Honor, I think it goes to the—
“Mr. Pyles: These are not like crimes.
“Mr. Dugan: Your Honor, I think—
“Mr. Pyles : They don’t show a pattern.
“Mr. Dugan: — it shows the man’s credibility.
“The Court: The objection is overruled.
“Q. (By Mr. Dugan). How many times have you been before prior to all this matter?
“A. Last year was my first time I ever had been in jail at all.
“Q. This was on this forgery and uttering?
“A. That’s right.
“Q. Now you’re on parole from that offense, is that correct?
“A. Right.
“Q. Here in Wichita, right here in this courthouse?
“A. Yes, sir.
“Q. Who is your parole officer?
“A. W. C. Koons.
“Q. Okay. And that would be in Division 3?
“A. Judge Bryant.” (Emphasis supplied.)
It is conceded that the defendant had not introduced evidence tending to support his credibility prior to his cross-examination.
The state attempts to justify its questioning of the defendant about his prior, unrelated conviction on the basis that it was relevant to rebut his testimony that because of his ignorance and lack of knowledge concerning police procedures following a person’s arrest he was tricked into giving a false confession. At oral argument the state further attempted to buttress its position by urging the testimony had bearing on the weight and credibility to be given by the jury to the confession. As authority, the state points to K. S. A. 60-455, and specifically that portion thereof permitting the admission of evidence that a person committed a separate, independent crime on a former occasion “when relevant to prove some other material fact” as to the crime for which he is being tried.
We have said that the rule of evidence stated in K. S. A. 60-455 generally proscribing the admission of evidence of unrelated offenses is to be strictly enforced, and to justify any departure therefrom, the evidence must be relevant within the meaning of one or more of the exceptions set forth in the statute itself. (State v. Wright, 194 Kan. 271, 398 P. 2d 339.) Such evidence, if relevant, may be admitted with proper limiting instructions in the state’s case in chief (State v. Taylor, 198 Kan. 290, 424 P. 2d 612, and cases therein cited) as well as in the cross-examination of the accused himself (State v. McCorvey, 199 Kan. 194, 428 P. 2d 762.)
The state’s argument that the evidence was admissible under one of the exceptions of K. S. A. 60-455 is, in our opinion, patently untenable. The avowed purpose of the prosecution in posing the question was “it shows the man’s credibility,” which, of course, is not encompassed within any of the statutory exceptions. To say now as an afterthought that the purpose of showing the prior conviction went to the weight and credibility of defendant’s confession rather than the credibility of the defendant himself as a witness is a pure matter of semantics. Were we to accept the state’s argument, any time an accused denied his previous confession of guilt because of alleged coercion by law enforcement officers, the floodgates would be opened for cross-examination on prior criminal convictions on the hollow premise that they were relevant to show his familiarity and experience with police interrogational practices as bearing on the weight and credibility to be given his confession. Such procedure, if permitted, would clearly circumvent the provisions of K. S. A. 60-455 under the pretense of satisfying one of the relevancy exceptions. Exposure of a prior record under such circumstances would also, in many instances, serve as a deterrent to an accused’s taking the stand because of the risk of being convicted on the basis of his record rather than evidence bearing on his guilt or innocence.
Here, the defendant, on direct examination, completely denied both his oral and written confessions. His assertion that the written confession was the result of trickery and coercion on the part of the officers brought into focus his credibility and truthfulness as a witness. We believe the evidence concerning the defendant’s prior conviction, when scrutinized in its proper setting, was obviously intended for the sole purpose of impairing his credibility.
The provisions of K. S. A. 60-421, upon which the defendant relies, are as follows:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.”
Prior to the enactment of the foregoing statute as part of the rules of evidence under article 4 of the code of civil procedure, a defendant in a criminal prosecution who took the witness stand subjected himself to inquiry concerning his previous criminal record for the purpose of impairing his credibility (State v. Holmes, 191 Kan. 126, 379 P. 2d 304; State v. Vernon King, 190 Kan. 825, 378 P. 2d 147; State v. Cushinberry, 180 Kan. 448, 304 P. 2d 561; State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Roselli, 109 Kan. 33, 198 Pac. 195), but such inquiry is now specifically prohibited unless the defendant has first introduced evidence admissible solely for the purpose of supporting his credibility.
The intendment of the statute is revealed by the notes of the advisory committee as found in Gard, Kansas Code of Civil Procedure Annotated, p. 392:
“. . . In criminal cases not even evidence of previous conviction for crime involving dishonesty [or] false statement may be received to discredit the defendant as a witness unless he has offered evidence in support of his credibility. The purpose is to remove the fear of character smearing as an inducement to the defendant to take the stand and tell his story and subject himself to cross examination.”
The significance of the statute is further amplified by Judge Gard’s comments:
“In the criminal case this section has special application where the defendant testifies in his own behalf. Under the former rule he laid his past record open for inquiry when he became a witness, with the result that the defendant hardly dared to take the stand because of the risk that he would be convicted, not on the evidence bearing on his guilt or innocence, but upon the fact that he was shown to have been a bad actor in the past. By not testifying the defendant did not have the benefit of his own denial of guilt and neither did the state have the benefit of the right to cross examine him on the merits of the case. The policy of the new rule is that it is better to remove the fear of conviction on past record by imposing the restriction that evidence of former conviction cannot be received except in answer to evidence which the defendant introduces to support his character. . . .” (p. 393.)
We hold, therefore, that under the facts and circumstances as related, it was prejudicial error for the trial court to permit the defendant to be cross-examined concerning his prior criminal conviction for the sole purpose of impairing his credibility. In view of the disposition of the case, other points raised on appeal need not be discussed.
The judgment is reversed and the case is remanded with directions to grant the defendant a new trial. | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant, Rudy V. Chuning, appeals from a conviction of robbery in the first degree. (K. S. A. 21-527.)
Two specifications of error are assigned by defendant. He first contends he was denied a speedy trial as provided by the Sixth Amendment to the Constitution of the United States and Section 10 of the Bill of Rights of the Constitution of Kansas. This issue was presented to the trial court by defendant in a motion to dismiss which was argued and overruled and was raised again on motion for a new trial.
Defendant’s complaint is not aimed at delay in bringing him to trial after his arrest. He claims he was deprived of his right to a speedy trial by reason of the fact that he was not arrested until more than three years after a complaint was filed against him. In this connection the record shows a complaint was filed on March 14, 1962, charging defendant with the commission of a crime on August 6, 1961. A warrant was issued on the same day but defendant was not arrested pursuant thereto until July 8,1965.
The only facts disclosed by the record pertaining to the delay in the arrest of defendant are to be found in the statements of counsel in their arguments on defendant’s motion to dismiss before the trial court prior to the trial. In his motion to dismiss the defendant claimed the court had lost jurisdiction because of delay in arresting him.
Defendant’s counsel stated that after the alleged crime the defendant resided continually in Kansas City, Missouri, and that during this period the defendant got into some difficulty in the State of California. Defendant’s counsel further stated that defendant was arrested by agents of the Federal Bureau of Investigation on a fugitive’s warrant and was confined in the county jail of Jackson County, Missouri; that defendant was then given a choice to either go back to the State of California as a parole violator or be returned to Johnson County, Kansas, to face the charge herein. Defendant’s counsel further stated that defendant elected to go back to California and, therefore, the State of Kansas waived custody of defendant and lost jurisdiction.
The county attorney in his argument to the trial court in opposing the motion to dismiss stated that defendant had been released to the sheriff of Los Angeles County under a Missouri Governor’s warrant and that the State of Kansas never had custody, actual or constructive, of defendant until he was released by California authorities to Kansas on July 6, 1965. This statement has not been denied by defendant.
The county attorney further stated that after the complaint was filed a warrant was issued and delivered to Missouri authorities. When no arrest was made the county attorney requested the issuance of a federal unlawful flight warrant by the United States District Attorney. This warrant was issued and the arrest finally made in Jackson County, Missouri, by officers of the Federal Bureau of Investigation. The county attorney argued that the State of Kansas could have done nothing more than was done to secure the arrest and custody of defendant and, therefore, no Kansas official was guilty of laches.
After hearing the statements of counsel the trial court ruled as follows:
“Well, gentlemen, irrespective of statements of counsel, I think the papers and pleadings filed in the case and in the absence of evidence to the contrary, govern in a situation such as this. The file indicates that a warrant in this case was issued on the 14th day of March, 1962. That it was served by the Sheriff of Johnson County, Kansas, on the same date and that on the 8th day of July, 1965, the same was executed by arresting the within named Rudy Chuning and bringing him before the Magistrate Court. Signed Lynn Thomas, Sheriff by Ralph E. Burger, Deputy Sheriff. I feel that must govern. There is ample law to the effect that once a warrant is issued that that stays the proceedings and it has been admitted in this case that the defendant was outside the state. Accordingly, the defendant’s motion to dismiss is by the Court considered and overruled.”
In his brief defendant admits that in most cases where a defendant successfully claimed a deprivation of the constitutional guarantee of a speedy trial, the holding was based on a lapse of time between arrest and trial. Defendant urges, however, that we consider the long delay in his case between the filing of the complaint and defendant’s arrest as constituting a deprivation of his constitutional right to a speedy trial.
In support of his argument defendants cites 21 Am. Jur. 2d, Criminal Law, p. 283 § 248, and a quotation from an annotation on the subject appearing in 85 A. L. R. 2d p. 980. The authorities cited by defendant indicate that in some cases it has been held that once an indictment or other formal charge, such as the filing of a complaint, has been returned or made against an accused the right to speedy trial may be violated by unreasonable delay in making the arrest.
The principle framed by authorities cited by defendant is qualified by those same authorities to the effect that if the accused has avoided arrest then the period of delay does not count.
We believe it is clear from the record in this case that the delay in arrest was caused by defendant’s absence from the State of Kansas. Under such circumstances the state cannot be said to be guilty of laches, and the defendant is foreclosed from asserting deprivation of his constitutional rights to a speedy trial. The general rule is stated in 21 Am. Jur. 2d, Criminal Law, p. 288 § 252, as follows:
“. . . An accused cannot take advantage of a delay for which he was responsible, whether caused by action or inaction on his part. This is true where delay is caused by his absence from the state, by his becoming a fugitive from justice, or by his failure to appear for arraignment or trial. . .
See, also, 85 A. L. R. 2d, Anno. pp. 980, 985 § 5.
This state has zealously guarded the right of an accused to a speedy trial guaranteed under Section 10 of our Bill of Rights and supplemented by K. S. A. 62-1431 and 62-1432. In State v. Brockel man, 173 Kan. 469, 249 P. 2d 692, where this court considered delay after a preliminary hearing in bringing a defendant to trial, we stated:
“The right to a speedy trial has been zealously guarded by tire English people since the signing of the Magna Charta. It is written into the constitution of the United States and has been adopted in tire bill of rights of this state. A right so sacredly guarded cannot be lightly ignored. It is a right, not a privilege, and cannot be frittered away by the laches of public officers. (Citing cases.)” (p. 473.)
See, also, State v. Hess, 180 Kan. 472, 304 P. 2d 474, and cases cited therein.
However, we find no case in which the right was held to have been infringed where the delay in arrest was caused by a defendant’s absence from the state.
Under the facts and circumstances of this case, the lapse of time between the filing of the complaint and the arrest of defendant, caused by his absence from the state, does not amount to a denial of defendant’s constitutional rights to a speedy trial under either the Sixth Amendment to the Constitution of the United States or Section 10 of the Bill of Rights of the Constitution of Kansas.
With respect to his second specification of error defendant contends his conviction is void because the information failed to state a charge of robbery in the first degree as set out in K. S. A. 21-527, which reads as follows:
“Every person who shall be oonvicted of feloniously talcing the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.”
The language which defendant claims to be insufficient is set out in the complaint, warrant and information as follows:
“. . . [T]ake the property of the Katz Drug Company, Inc., said property consisting of United States money in the approximate amount of $13,000.00, by taking said money from Eric Busch, the manager of said store, against his will, by putting said manager in fear of some immediate injury of his person by threatening him and showing him a pistol he had concealed in his belt.”
Defendant contends the information is defective because of a failure to specifically allege that the money was either taken in the presence of or from the person of Eric Busch. From our reading of the language “by taking said money from Eric Busch,” the manager against his will by putting him in fear, etc., we are unable to agree with defendant that such language does not logically amount to an allegation of taking money from Eric Busch in his presence. We believe the information charged an offense under the statute with enough clarity and detail to inform the defendant of the criminal act with which he is charged.
The information was substantially in the language of the statute and that is sufficient. (State v. Kelly, 192 Kan. 641, 391 P. 2d 123; State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750.) In State v. Ellis, 192 Kan. 315, 387 P. 2d 198, in discussing a similar contention, the court stated:
“. . . The information was not drawn by a master of the art of good pleading, but since it fully apprised the defendant of the nature of the offense charged against him and contained the necessary element of such offense, the motion to quash was properly overruled. (Citing cases.)” (p. 317.)
Defendant makes no claim that he did not know he was being tried for robbery in the first degree. He made no attack on the form of language of the information at or before arraignment or in his motion for a new trial. We find nothing in this record indicating any doubt or uncertainty on the part of defendant as to the nature of the offense for which he stood charged.
We find no error in the record with respect to either matter urged and the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a statutory action under the Kansas act against discrimination (K. S. A. 44-1001, et seq.) brought by the Attorney General of Kansas charging that the Board of Education of the city of Kansas City, Kansas, discriminated against negroes in several respects.
The basic question of law presented involves a construction of the Kansas act against discrimination — whether the act requires public school authorities to integrate their teaching staff at the various schools under their jurisdiction.
This action was instituted by the Attorney General (plaintiff-appellant and cross-appellee) by filing a complaint, authorized by K. S. A. 44-1005, against Unified School District No. 500 and individual members of the school board (defendants-appellees and cross-appellants), charging that the Board of Education of the city of Kansas City, Kansas, has continually and within six months immediately prior to the filing of the complaint on August 26, 1963, engaged in unlawful employment practices in violation of G. S. 1961 Supp. (now K. S. A.) 44-1009(a). The unlawful practices were alleged to consist of:
“(A) Refusing to hire or consider for employment qualified negro applicants as teachers in schools attended predominantly by white children.
“(B) Segregating its negro elementary school supervisor from its white elementary school supervisors in furnishing office accommodations to such supervisors, and by limiting its negro supervisor to work in schools attended predominantly by negro children while its white supervisors are assigned to both white and negro schools.
“(C) By giving official sanction to separate city-wide teachers’ associations for negro and white elementary teachers and making membership in such segregated associations compulsory for its elementary school teacher employees.”
The answer of the school board specifically denied each of the charges alleged to be unlawful employment practices.
The act created a state commission having power to eliminate discrimination in employment to be known as the antidiscrimination commission, and provided that after the effective date of the act such commission was to be known as the commission on civil rights. At the hearing before this commission the NAACP was permitted to intervene in the action as a complainant (intervener-appellant and cross-appellee).
Before the matter was heard by the commission a fourth issue was injected into the case. At the pretrial conference, counsel for the Attorney General stated, although not in the pleadings, that the most important issue in the controversy was the refusal of the school board to transfer a teacher, over his objection, from one school to another solely for the purpose of integrating or mixing the faculties.
Before the commission heard the case the school board by motion attempted to learn which individuals had been discriminated against by the refusal of the board to hire them or consider them for employment in predominantly white schools; but the commission denied the motion.
The case was heard by the commission on the three issues enumerated in the complaint and the fourth issue injected at the pretrial conference, despite the recommendation of its own investigating officer that there was no probable cause upon the third issue in the complaint.
After hearing the matter the commission found against the school board on all four issues, and concluded that the school board “has engaged and at the time of the hearing was engaged in unlawful, discriminatory practices in violation of the Kansas Act Against Discrimination.” It thereupon issued a sweeping order as follows:
“The Commission Therefore Orders Respondent:
“1. To forthwith cease and desist from such unlawful and discriminatory practices.
“2. To employ and consider for employment as teachers in its schools Negro applicants on the basis of training, qualification and school need and not on the basis of the racial makeup of the pupils of such school.
“3. To assign its Negro elementary school supervisors for duty as it does its white supervisors and not on a basis of a Negro supervisor to a predominantly Negro school.
“4. To furnish its supervisors, Negro and white alike, office and school accommodations on the basis of position and not on the basis of color.
“5. To cease and desist from recognizing and encouraging separate and segregated teachers’ associations.
“It is further ordered, that respondent take the following affirmative actions:
“1. To reassign its teachers and to establish procedures so as to eliminate the condition whereby Negro teachers are being assigned to predominantly Negro schools and white teachers to predominantly white schools.
“2. To employ and consider for employment qualified Negro applicants as teachers in schools attended predominantly by white children.
“3. To issue a public statement on its policy of no discrimination in employment and assignment of teachers and to use the same in the recruitment, selection and hiring of its teachers.
“4. To make known to the various teachers’ associations its disapproval of separate teachers’ associations for Negro and white elementary school teachers.
“5. To provide the Kansas Commission on Civil Rights, within ninety days hereafter, with a written report of the manner of compliance with the above orders.”
Thereupon the school board appealed to the Wyandotte County district court.
After the commission announced its decision that teachers should be transferred from one school to another to effect integration, the teachers became alarmed and intervened by a class action so that their rights might be fully protected.
The motion by the teachers to intervene recites: .
“Come now John E. Hirsch, Randall R. Dunn, Mary Wolfe, Phoebe May and Gerald W. Hall, acting for themselves individually and as officers of and as designated agents for Kansas City, Kansas Teachers Association and move for leave to intervene as respondents. . . .”
The teachers’ motion to intervene is intermingled with the third issue in the complaint, which charged that the school board discriminated by supporting separate teachers’ associations — some only for negro teachers, and some only for white teachers. There was absolutely no testimony at the hearing before the civil rights commission to support this charge. The superintendent of schools testified positively that such separate associations did not exist, and the investigating commissioner found there was no probable cause to submit this issue to the commission for decision. In fact, counsel arguing the teachers’ cause before this court on appeal stated that the teachers’ association which intervened represented all tenure teachers, both colored and white, in the Kansas City, Kansas, school system. Furthermore, the individuals named as interveners and officers of the Kansas City, Kansas, Teachers’ Association constitute a bir acial group.
The trial court heard the appeal in accordance with the authority conferred by statute (K. S. A. 44-1011), and determined the matter on motion for summary judgment filed by the respective parties after discovery proceedings had been completed. The trial court had before it the pleadings, the record on appeal, additional evidence in the form of admissions and answers to interrogatories produced in the district court, together with the briefs of the respective parties.
Findings of fact and conclusions of law incorporated by the trial court in its journal entry of judgment filed on the 17th day of October, 1966, are as follows:
“Findings of Fact:
“1) Respondents-Appellants filed an appeal from orders made by the Kansas Commission on Civil Rights as of April, 1965, the appeal having been taken on April 28, 1965.
“2) That by its findings and conclusions Kansas Commission on Civil Rights directed Respondent-Appellant to reassign its teachers and to establish procedures so as to eliminate the condition whereby Negro teachers are being assigned to predominantly Negro schools, and white teachers to predominantly white schools.’
“3) That the evidence presented against Respondents-Appellants was based mainly on charts prepared by Respondent-Appellant Board of Education and conversations and letters; no teacher employed by Respondent-Appellant and no applicant for a teacher’s position with Respondent-Appellant testified for Complainant-Appellee; that therefore complainant did not sustain the burden of proof put upon him.
“4) That in September of 1960, Respondent-Appellant was defendant in a case known as the ‘Downs Case’, filed in the United States District Court; that the decision in that case was handed down on July 19, 1963; and that during this period of time no change was made by Respondent-Appellant in its operation in the City of Kansas City, Kansas.
“5) That since July 19, 1963, some teachers have voluntarily accepted assignments to schools in which the predominance of pupils was not of the same race and color as that of the transferring teacher; and this is the situation that has existed to February, the date of the hearing.
“6) That teachers working for Respondent-Appellant are divided into two categories: (a) Tenure teachers, those who have worked three years and more, and (h) probationary teachers, who must teach for three years before being admitted as tenure teachers.
“7) That there is now and has been for many years an association known as the Kansas City, Kansas, Teachers’ Association, comprising all tenure teachers, this being the only association recognized by Respondent-Appellant.
“Conclusions of Law:
“1) Chapter 44, Article 10, K. S. A., is the ‘Kansas Act Against Discrimination.’ Chapter 72, Article 54, K. S. A., is ‘Tenure of Instructors, cities over 120,000.’
“2) That the Attorney General is authorized by Chapter 44, Article 10, K. S. A., to make, sign and file a complaint under the Kansas Act Against Discrimination; that Respondent-Appellant is an ‘employer’ under that act.
“3) That before 1961 school districts were not included within the term ‘employer’. Rut in the 1961 Supplement to the General Statutes of Kansas, 1949, the legislature, by legislative enactment, deleted the words ‘school districts’, so that in 1961 Respondent-Appellant did come within Chapter 44, Article 10, K. S. A.
“4) That by virtue of legislative enactment, Respondent-Appellant District was thus subject to Chapter 44, Article 10, K. S. A., in 1961, but that there was pending in the United States District Court an action designated Downs et al. v. The Board of Education of Kansas City, Kansas, et al., which case was not decided until July of 1963 [affirmed in Downs v. Board of Education of Kansas City, 336 F. 2d 988 (10th Cir. 1964)]; that Respondent-Appellant was not in position to comply with the Kansas law until the judgment in the Downs case.
“5) That beginning in 1963 voluntary acts of teachers resulted in some changes, as suggested by the Kansas Commission on Civil Rights.
“6) That in addition to the laws relating to school districts and educational associations, and with particular reference to teachers, Chapter 72, Articles 5401 to 12, inclusive, are in full force and effect, these articles being the ‘tenure’ section of Kansas laws, and by this teachers attain tenure.
“7) That tenure teachers by contract with Respondent-Appellant District have a contractual right, which in turn becomes a property right so far as said teachers are concerned; that in fulfilling their duties, they are subject to the Respondents-Appellants and to require the Respondents-Appellants to transfer tenure teachers only because of race or color, over his or her objection, is a violation of the contractual and property right of the teacher; that teachers serving their probationary period are not included within the term ‘tenure teacher’ and are subject to K. S. A. Chapter 44, Article 10.
“8) The Court finds that the evidence presented as to the Kansas City, Kansas, Teachers’ Association and as to discriminatory practice against Supervisor Lewis does not warrant the Court sustaining the action of the Kansas Commission on Civil Rights on these points.
“9) The motions for summary judgment by the Respondents-Appellants and by the Intervener Kansas City, Kansas, Teachers’ Association are sustained insofar as they concern teachers with tenure; the balances are overruled. The motion for summary judgment by Complainant-Appellee is overruled except insofar as it concerns probationary teachers, who are subject to Chapter 44, Article 10; with regard to these teachers, it is sustained.
“10) The costs are to be equally divided between Complainant-Appellee and Respondents-Appellants.”
The Attorney General and the NAACP have appealed only from a part of the trial court’s decision: (1) That part of the decision finding against them on the first charge of discrimination stated in the complaint; and (2) that part of the decision which held that teachers with tenure cannot be transferred from one school to another to effect integration, over their objection (the issue injected at the pretrial conference before the commission on civil rights).
The first portion of the appeal is from the findings of fact made by the trial court, and the second raises a question of law.
The school board and the intervening teachers have cross-appealed from that portion of the order of the trial court holding that teachers without tenure can be transferred, over their objection or protest, from one school to another to effect integration.
While the Attorney General and the NAACP did not appeal from the decision of the trial court on the second and third charges of discrimination set up in the complaint, some mention should be made of these issues in view of the findings made by the commission on civil rights.
The second charge of discrimination concerned the negro supervisor of elementary schools. His testimony was not for the Attorney General and the NAACP but for the school board. Briefly, his testimony was that he despised discrimination but that he was not discriminated against. He felt he was a trusted supervisory member of the staff of the school board; that his opinions were sought and valued, not only by the superintendent of schools but by other members of the staff as well. He was consulted whether the problems involved negro students or not.
Notwithstanding this uncontroverted testimony, the civil rights commission found the school board guilty of this charge of discrimination without any evidence whatever, and the trial court properly reversed the commission.
The third charge of discrimination in the complaint has already been discussed in connection with the intervention by the teachers. In the face of no evidence whatever to support this charge in the complaint, the commission nevertheless found the school board guilty on this point, which the trial court also properly reversed.
The first issue on appeal is whether the trial court erred in finding that the Attorney General and the NAACP did not sustain the burden of proof on the first charge in the complaint.
The record discloses the school board operates the public school system in Kansas City, Kansas. These schools consist of elementary schools (kindergarten through sixth grade); junior high schools (seventh through ninth grade); senior high schools (tenth through twelfth grade); and a junior college (thirteenth and fourteenth grades). There are thirty elementary schools in the system, four junior high schools, four senior high schools and one junior college. On the date the complaint was filed the system employed more than 840 teachers, all or many of whom could be vitally affected by the decision in this case.
Prior to 1950 the school system was completely segregated. In that year the white and negro junior colleges were combined. In 1954 after the Supreme Court of the United States held that segregated schools were unlawful (Brown v. Board of Education, 347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686 [1954]), a program to eliminate segregation was launched by the school board to take effect by a series of steps.
In October, 1960, the NAACP, one of the appellants in this case, filed an action in the United States District Court for the District of Kansas (Downs v. Board of Education of Kansas City, 336 F. 2d 988 [10th Cir. 1964]) charging the school board of the city of Kansas City with practicing segregation in its school system.
While that action was pending in the federal district court, the school board refrained from taking any action tending to integrate the staff members of its schools. The school board believed that with the pendency of litigation it should not change existing procedure until after a decision was rendered by the court. The Downs case was decided by the United States District Court in July, 1963, and from that time on the Board of Education has taken positive and active steps toward integration of staff members of all schools.
A history of the Kansas City, Kansas, school system concerning its problems with respect to the white and colored population in the city may be found in the Downs case. The memorandum decision of Judge Stanley in the Federal District Court of Kansas in the Downs case was introduced in evidence before the commission on civil rights, and was made a part of the record on appeal to this court.
When the Downs decision was announced in July, 1963, teaching assignments in the Kansas City, Kansas, school system for the year 1963 had already been made. Nevertheless, a number of negro teachers were interviewed in an attempt to obtain teachers who would voluntarily transfer to the Quindaro school, which was then staffed by white teachers. Three were obtained. During that year a vacancy occurred on the staff of the junior college, and it was filled with a negro teacher. A few other changes were also made. The following year, many negro teachers were employed in predominantly white schools, and many white teachers were employed in predominantly negro schools. The board not only hired for any vacancy in the system without regard to race, but it actually tried to employ negro teachers for white schools and vice versa. The big stumbling block was in finding qualified negro teachers.
It was not until July, 1961, that the Kansas act against discrimination became effective as to public school systems. (See, K. S. A. 44-1002, and L. 1961, ch. 248, §2.)
The instant action was not filed until the 26th day of August, 1963, and it was not filed by or at the instigation of any teacher or teachers.
The appellants rely upon complainant’s exhibit No. 11, which is a chart showing a breakdown of the teachers of the school system within Kansas City, Kansas. It shows the total number of teachers in each school, and it also shows how many of the teachers in each school were negro and how many were white. The chart also shows the percentage of negro students in each of those schools. While the exhibit does not disclose the date it purports to represent, the chart does disclose that the teaching staff in the thirty-five different schools listed was either all negro or all white. Dr. Orvin L. Plucker became the superintendent of schools in Kansas City, Kansas, in September, 1962. He testified that the faculties were segregated at that time, and this appeared to him to be the result of an old policy. The record discloses the testimony of two witnesses concerning a conversation with Dr. Plucker July 19, 1963, in which he was asked as superintendent whether negro applicants were considered for jobs only in negro schools, to which the superintendent answered, “I am afraid that’s true.”
A witness by the name of Mrs. Porteous related that on December 11, 1963, Mr. Fothergill, a member of the school board, stated that if she wished to have a negro teacher for her child, she should move into a negro community. On cross examination as to this point Mrs. Porteous testified:
“Q. Now, don’t you recall at that meeting that they told you they were planning some integration steps?
“A. It was explained that they had already hired a teacher in one incident. This was explained by the Superintendent. The Board did not explain that they had any definite plans at that time.
“Q. No, but you knew that Dr. Plucker was speaking, and the Board members were sitting there, and they didn’t contradict him, did they, when he said they were making some plans for integration?
“A. They indicated that there were plans for hiring without discrimination. There was no indication that there was anything definite. Insofar as that would bring integration, yes, but there was no overall plan for reassignment.
“Q. I see. So they did tell you that ‘When we hire teachers from now on, we will hire them without regard and assign them without regard to race or color,’ didn’t they?
“A. Yes, and I knew that before that.
“Q. You knew that that was their policy before that?
“A. Yes, sir.
“Mr. Edwards told the witness that the primary purpose of the Board of Education was education not integration. The Board indicated that there were plans for hiring without discrimination.”
The foregoing evidence must be analyzed in view of the claimed charge of discrimination on point one in the complaint, and the anti-discrimination statute. The complaint charged that the school board discriminated against negroes in “Refusing to hire or consider for employment qualified negro applicants as teachers in schools attended predominantly by white children.” In other words, if a qualified negro teacher made an application to the school board to teach in the system, or made an application to be assigned to a predominantly white school and the school board refused to hire or assign him, then a claim for relief might exist. The record presented on appeal in this case discloses there was no such application involved in any of these proceedings. The word “refuse” has a well-defined meaning which is frequently used and not difficult to understand.
When the record is examined there is no evidence that the school board refused either to hire or assign a negro applicant in a predominantly white school. In fact, there is no evidence that any qualified negro applicant requested the school board to employ him, or that any qualified negro applicant or teacher requested the school board to assign him to a predominantly white school. The school board cannot be convicted of refusing an offer unless some showing is made that an offer had been proposed. The trouble in this case is that, although the charge is clear and positive, there is not one scintilla of evidence to support it.
The Attorney General and the NAACP argue that the trial court found a violation of the act on the first ground of the complaint because it granted summary judgment for the Attorney General and the NAACP with regard to all teachers who have probationary status within the school system. It is argued this conclusion is inconsistent with its finding that there was no evidence to support the charge on count one.
The position was taken by the trial court that immediately upon the rendering of the decision in the Downs case, it became necessary for the school board to do something to start integrating the faculties in the public school system of Kansas City, Kansas; that while the Downs case was pending, the Board of Education was under no obligation to comply with the Kansas act against discrimination by reason of the pending litigation against it.
Be that as it may, we regard the conclusion of the trial court to which reference has just been made as raising a question of law which is to be determined by a construction of the act, and not as an inferential finding of fact adverse to its specific finding on the first charge in the complaint.
The Attorney General and the NAACP argue where the complainant makes a showing that virtually all of the employer’s negro employees are assigned to one group of schools, and virtually all of its white employees are assigned to a different school, a presumption arises that these employees have been segregated on the basis of race. It is contended the duty of rebutting this presumption should fall upon the respondent, and if he does not do so a violation of the act should be held to have been established. (Citing, Gainer v. School Board of Jefferson County, Ala., 135 F. Supp. 559 [N. D. Ala. 1955], where there was actual discrimination against negro teachers in the payment of salaries.)
The Attorney General and the NAACP also cite Hernandez v. Texas, 347 U. S. 475, 98 L. Ed. 866, 74 S. Ct. 667 (1954); and Norris v. Alabama, 294 U. S. 587, 79 L. Ed. 1074, 55 S. Ct. 579 (1935), where the systematic and arbitrary exclusion of members of the defendant’s race from the jury lists solely because of their race or color denied the criminal defendant the equal protection of the laws guaranteed to him by the Fourteenth Amendment. It is argued the same reasoning should be applied where neither the complainant nor any teacher in the Kansas City, Kansas, school system has direct access to the process by which teachers are assigned; that it would be virtually impossible for them to establish by direct evidence any instance in which a teacher was assigned to any particular school on the grounds of race; that they must rely on a pattern giving rise to a presumption of segregation.
Presumptions are discussed under the code of evidence in K. S. A. 60-413 through 60-416. The presumption to which the Attorney General and the NAACP allude is not a conclusive or irrebuttable presumption.
K. S. A. 60-414 in pertinent part provides:
“. . . (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved.”
Another section of interest is K. S. A. 60-415, which reads:
“If two presumptions arise which are conflicting with each other the judge shall apply the presumption which is founded on the weightier consideration of policy and logic. If there is no such preponderance both presumptions shall be disregarded.”
Attention is called to the fact that in the instant case not one single teacher was called to testify that the school board discriminated against him or her in any way. Under the law of Kansas as found in numerous cases (including Donley v. Amerada Petro leum Corp., 152 Kan. 518, 106 P. 2d 652; and Blackburn v. Colvin, 191 Kan. 239, 380 P. 2d 432) when a party to a case has failed to offer evidence or produce witnesses within his power to produce, an inference arises that the evidence or testimony which would have been produced would have been adverse to that party. This inference in and of itself gives rise to a presumption which conflicts with the presumption asserted by the Attorney General and the NAACP. It cannot reasonably be said which of these presumptions is founded on the weightier consideration of policy and logic. The result is both presumptions must be disregarded. This leaves the complainant without any evidence whatever to support the charge of discrimination on the first point in the complaint.
In fact, there is evidence in the record of a specific nature reflecting that discrimination did not exist. There is evidence in the record that the school board was actively seeking to employ negro teachers. One of the Attorney General’s witnesses was Roland Swain, director of placement at Kansas State University. He testified the school board was actually advertising for negro teachers. While this may have been a technical violation of the civil rights act to refer to any person by race, evidence that the school board was advertising for negro teachers can hardly support the charge that it refused to hire them. Dr. Plucker positively testified he never at any time refused to hire a teacher because of race, and that he never refused to assign a teacher to a school of predominantly another race because of race. He also testified that at no time did he ever refuse to employ a qualified negro teacher; that he was on directive to employ negro teachers, and was making an effort to do so — the directive being by the Board of Education.
The Attorney General and the NAACP suggest in their brief the reason teachers did not testify that they sought reassignment and were refused was because of the fear that if they did, their positions would be in jeopardy. This can hardly be advanced as a valid reason in view of the Kansas act against discrimination establishing the civil rights commission. If a teacher was discharged because he testified to the truth in a trial, the school board would be squarely within the grips of the commission. This argument is fortified by the fact that when the civil rights commission decided that some teachers would have to be transferred from one school to another, over their objection, in order to effect integration, the teachers, both white and negro, immediately became alarmed and employed counsel of their own and entered the case as interveners, opposing the decision of the commission.
There is federal authority which supports the proposition that while litigation was pending against the school board concerning discrimination, it was under no obligation to change its position. Under this theory the charts and exhibits introduced by the Attorney General disclosed the situation existing only during the pendency of the Downs case in the federal courts. While the Downs case was pending, the antidiscrimination statute became effective. (July 1, 1961.) The authority justifying such inaction on the part of the school board pending litigation is Springfield School Committee v. Barksdale, 348 F. 2d 261 (1st Cir. 1965), a civil rights case. In the opinion the court said:
“. . . Plaintiffs have pointed to the fact that defendants ceased, or virtually ceased, assertedly on advice of counsel, their voluntary activities upon the institution of suit. We attach no great significance to this. The application of a stick is hardly an encouragement to egg-laying proclivities, golden or otherwise. We forbear wondering whether plaintiffs could not have expected this, and were more interested in a court order itself than in actual performance. We similarly forbear wondering whether defendants’ cessation was entirely motivated by concern that their work to find an educationally feasible way to reduce imbalance would be wasted if the court ordered another route to be taken, or was due in part, at least, to pique. Rather, we recognize, as was said in Taylor v. Board of Education, D. C. S. D. N. Y. 1961, 191 F. Supp. 181, at 197, aff’d 2 Cir., 1961, 294 F. 2d 36, cert. den. 368 U. S. 940, 82 S. Ct. 382, 7 L. Ed. 2d 339.
“‘Litigation is an unsatisfactory way to resolve issues such as have been presented here. It is costly, time consuming — causing further delays in the implementation of constitutional rights — and further inflames the emotions of the partisans.’ Where no order is called for, we are unprepared to use defendants’ inactivity following suit as an excuse for retaining dormant, or anticipatory, jurisdiction. . . .” (pp. 265,266.)
In Dooms a class action was brought by a group of negro children through their parents as next of friends to enjoin the Board of Education of the city of Kansas City, Kansas, from continuing allegedly discriminatory practices. The United States District Court for the District of Kansas, Arthur J. Stanley, Jr., J., rendered a judgment from which the plaintiffs appealed. In the Tenth Circuit Court of Appeals the decision of Judge Stanley, finding that the Board of Education’s overall policy met constitutional requirements, with the exception of its policy permitting transfers of students from schools in which they were in racial minority, was upheld on September 25, 1964. It was held the policy of the school board had served to effect a racially nondiscriminatory school system even though certain elementary schools were still composed of predominantly negro students, and certain of white students, a junior high school and a senior high school were still virtually entirely negro, boundary lines for junior high schools were changed and assertedly negro schools were staffed by negro personnel, and white schools by only white personnel. (Downs v. Board of Education of Kansas City, supra.)
The Attorney General and the NAACP in their brief say:
“. . . The equal protection clause of the Fourteenth Amendment, which has similar purposes with regard to public education, has been held to have been violated on precisely the kind of pattern evidence produced here. In Dowell v. School Board of Oklahoma City Public Schools, 219 F. Supp. 427, 442-443 (W. D. Okla. 1963), the court found just such a pattern of faculty segregation to be a violation of the equal protection of the laws as guaranteed to Negro school childen. A similar result was reached in Christmas v. Board of Education of Hartford County, Md., 231 F. Supp. 331, 336-337 (D. Md. 1964). Board of Public Instruction of Duval County, Fla. c. Braxton, 326 F. 2d 616, 620-621 (5th Cir. 1964), cert. den. 377 U. S. 924, 12 L. Ed. 2d 216, 84 S. Ct. 1223.”
The above decisions cited are a counterpart to Downs in the rash of federal litigation that followed Brown v. Board of Education, 347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), which held it unlawful to maintain segregated schools in the public school system. While it is true charts were introduced in the Dowell case to disclose the number of white and negro students in the various schools in the Oklahoma City public school system, there was specific evidence in the record that of the integrated schools the school board had employed no negro principals or negro teachers since the Brown decision, except in schools where the school attendance was overwhelmingly negro students. The federal court concluded from all the evidence the time had come for the Oklahoma City school board to begin the integration of its teaching staff.
In the other two cases there was specific evidence of discrimination on the basis of race in hiring new teachers for desegregated schools.
As to the first charge of discrimination stated in the complaint, we hold the record presented on appeal supports the trial court’s finding that the complainant did not sustain the burden of proof put upon him.
The Attorney General and the NAACP contend the trial court erred in holding that teachers with tenure cannot be transferred from one school to another in order to break down an existing pattern of racial segregation in school faculties. Conversely, the school board and the teachers contend the trial court erred in holding that teachers who have not acquired tenure under K. S. A. 72-5401 to 72-5412 can be transferred from the school to which they have been regularly assigned to another school, over their objection, solely for the purpose of making a more complete integration of faculties.
This is the real nub of this lawsuit. The school board has refused to transfer teachers legally employed by it, from one school to another, over their objection, to effect integration. The civil rights commission ruled that the school board must do so. On appeal the trial court held the school board was not required to do so as far as teachers with tenure are concerned; but that it was required to transfer teachers who had not yet attained tenure. The reasons advanced by the school board for its refusal to make such transfers are as follows:
(1) To do so would be a violation of the civil rights act because to require a teacher to transfer from one school to another on the basis of race is the rankest kind of discrimination.
(2) A more practical reason is because if the school board should attempt to do so, it would lose from forty to fifty teachers. Teachers are not so easily come by that the school board can afford to take any step which would alienate such a large number of its professional staff.
(3) Even teachers who felt they could not afford to leave the school system would be dissatisfied and troubled; and it is well recognized in educational circles that teachers who are dissatisfied and troubled do not function well, and do not achieve the best results with the education of children. It is the primary function of teachers to educate children.
It should be emphasized the controversy is over teachers who are satisfied with their current assignments and do not want to teach elsewhere, particularly under circumstances which are different. It does not concern teachers who are willing to take part in the integration of the school system because as to those teachers, when the matter was heard in the district court, they were already teaching in integrated positions. The school board is not willing to transfer teachers from one school to another over their objection, and the Attorney General and the NAACP will accept nothing less.
The federal courts have held that the Fourteenth Amendment to the United States Constitution does not command integration of races in public schools.
After the original opinion in Brown v. Board of Education, supra, the court set the case for further argument on the question of how its decision should be implemented. Thereafter, a three-judge district court was designated in Kansas to consider the Kansas aspects of the instructions in the Brown case. The district court in Brown v. Board of Education of Topeka, 139 F. Supp. 468 (D. Kans. 1965), stated:
. . Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.” (p. 470.)
The foregoing language was approved in Bell v. School City of Gary, Indiana, 324 F. 2d 209 (7th Cir. 1963). The court there also said:
"We approve also of the statement in the District Court’s opinion, ‘Nevertheless, I have seen nothing in the many cases dealing with the segregation problem which leads me to believe that the law requires that a school system developed on the neighborhood school plan, honestly and conscientiously constructed with no intention or purpose to segregate the races, must be destroyed or abandoned because the resulting effect is to have a racial imbalance in certain schools where the district is populated almost entirely by Negroes or whites. . . .’” (p. 213.)
A recent case in the United States Court of Appeals for the Sixth Circuit is Deal v. Cincinnati Board of Education, 369 F. 2d 55 (1966). The court there said:
“Although boards of education have no constitutional obligation to relieve against racial imbalance which they did not cause or create, it has been held that it is not unconstitutional for them to consider racial factors and take steps to relieve racial imbalance if in their sound judgment such action is the best method of avoiding educational harm. Balaban v. Rubin, 14 N. Y. 2d 193, 250 N. Y. S. 2d 281, 199 N. E. 2d 375 (1964), cert. denied 379 U. S. 881, 85 S. Ct. 148, 13 L. Ed. 2d 87 (1964); Morean v. Board of Education of Montclair, 42 N. J. 237, 200 A. 2d 97 (1964).” (p. 61.)
The federal district judge for the Eastern District of Tennessee was concerned with a revised plan for the complete desegregation of the city schools in Knoxville, Tennessee, in Goss v. Bd. of Ed., City of Knoxville, Tenn., (1965) 10 Race Rel. L. Rep. 1642 [Vander bilt University School of Law]. The trial court after the pretrial conference ordered, among other things:
“. . . Without limiting the generality and effectiveness of the foregoing, all teachers, principals and other school personnel shall be employed by defendants and assigned or re-assigned to schools on the basis of educational need and other academic considerations, and without regard to race or color or the persons to be assigned, and without regard to the race or color of the children attending the particular school or class within a school to which the person is to be assigned. No transfer or re-transfer of a teacher, principal or other school personnel may be granted or required for considerations based upon race and color and no assignment or re-assignment of such teacher, principal or other school personnel may be made for considerations based upon race or color.
“All tenure and seniority rights are to be observed and the defendants will not utilize or attempt to utilize the provisions of the State Teacher Tenure Law or any other law, custom or regulation conferring discretion upon them in the employment and discharge of teachers or the abolition of teaching positions in such manner as to discriminate either directly or indirectly on account of race or color in the employment, discharge, re-employment, assignment, or reassignment of teachers, principals or other school personnel in the Knoxville City School System.” (p. 1643.)
Another case holding that a person may not be compelled to transfer from one school to another because of his race or color is Brown v. County School Board of Frederick County, Va., 245 F. Supp. 549 (W. D. Va. 1965). While that case involves students in the public school system, the issue is the same as the one presently before the court. There the court said:
“It is well established in this Circuit and elsewhere that a freedom of choice plan, in which the school authorities allow the student, or his parents, to freely choose the school which he is to attend, is ‘an acceptable device for achieving a legal desegregation of schools.’ Bradley v. School Board, 345 F. 2d 310, 318-319 (4th Cir. 1965), and cases cited therein, n. 17. Such a view is the-logical result of the accepted principle that the Fourteenth Amendment does-not outlaw voluntary separation of the races, but only discrimination which-forces separation. Bradley v. School Board, 317 F. 2d 429, 438 (4th Cir. 1963); Jeffers v. Whitley, 309 F. 2d 621, 629 ( 4th Cir. 1963); Briggs v. Elliott, 132 F. Supp. 776, 777 (E. D. S. C. 1955) (three-judge court on remand). . . (p. 555.) (Emphasis added.)
While the Attorney General and the NAACP throughout their brief speak of the teachers in the Kansas City, ICansas, school system as being segregated on the basis of race, it appears from the issue-injected at the pretrial conference that what they are actually concerned with is the compulsory integration of teaching staff in the various schools. They argue the present practices of the school board are inconsistent with the Kansas act against discrimination.
The Attorney General and the NAACP refer to the purposes of the antidiscrimination statute set forth in the first section of the act, and emphasize that the opportunity to secure and to hold employment is a civil right of every citizen; and that it is to protect these rights that the act was passed and the commission established. They argue K. S. A. 44-1006 enjoins the court to give the act a liberal construction for the accomplishment of these purposes. Certainly, they argue, these purposes will be furthered by a construction of the act which prohibits discrimination against an entire class as well as against individual members of a class. From this point they conclude the act requires integration of the teaching staff of the various schools in the public school system. They then jump to their ultimate conclusion that a teacher can be transferred from the school to which he has been regularly assigned to another school, over his objection, solely for the purpose of making a more complete integration of the teaching staff.
The declaration of the state policy and purpose of the Kansas act against discrimination is set out in the first section. (K. S. A. 44-1001.) It states, among other things:
“. . . The practice or policy of discrimination against individuals in relation to employment or in relation to full and equal accommodatons in hotels, motels, cabin camps and restaurants by reason of their race, relations, color, national origin or ancestry is a matter of concern to the state, that such discrimination threatens not only the rights and privileges of the inhabitants of the state of Kansas but menaces the institutions and foundations of a free democratic state. It is hereby declared to be the policy of the state of Kansas to eliminate discrimination in ail employment relations and to eliminate and prevent discrimination, segregation, or separation in hotels, motels, cabin camps and restaurants.’’ (Emphasis added.)
The complaint in the instant case charged the school board with unlawful employment practices. The second section of the act (K. S. A. 44-1002) defines unlawful employment practices as:
“(g) The term ‘unlawful employment practices’ includes only those unlawful practices and acts specified in section 44-1009 of the General Statutes Supplement of 1961, and includes segregate or separate.”
K. S. A. 44-1009 in pertinent part provides:
“It shall be an unlawful employment practice:
“(a) For an employer, because of the race, religion, color, national origin or ancestry of any individual to refuse to hire or employ, or to bar or to dis charge from employment such individual or to otherwise discriminate against such individual in compensation or in terms, conditions, or privileges of employment.” (Emphasis added.)
The construction of the language in the Kansas act against discrimination, as is true with the construction of the language of any statute, is a matter of law and not a matter of fact. (State, ex rel. v. Mills, 171 Kan. 397, 233 P. 2d 720.)
It should be emphasized that the foregoing act prohibits discrimination against any individual, and it is not confined to members of any minority group. Thus, discrimination can be against white individuals, as well as against negro individuals, or others.
Would it be proper for the school board under the foregoing act to say to a teacher because you are white you must be transferred to a school other than the one where you are now teaching in order that the faculty may be better integrated?
It is obvious this would be just as much a violation of the anti-discrimination act as for the school board to say to a negro teacher because you are a negro you cannot teach in a certain school.
It is abundantly clear the Kansas act against discrimination bars discrimination only, and is not concerned with the integration of the races.
The word “discriminate” is defined in Webster’s Third New International Dictionary as:
“to . . . distinguish between ... to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit.”
The word has been judicially defined in Wimberly v. Ga. So. & Fla. Ry. Co., 5 Ga. App. 263, 63 S. E. 29 (1908), as “treating one differently from another.” (p. 266.)
The foregoing definitions do not indicate that the word “discriminate” can be used synonymously with the word “integrate,” which has an entirely different meaning. “Integrate” has been defined as “to unite with something else.” (Webster’s Third New International Dictionary.)
It can therefore be said if the school board does not discriminate-against any individual in refusing to hire, in refusing to employ, in compensation, or in terms, conditions or privileges of employment, it has satisfied the admonition of the Kansas act against discrimination. In other words, it has no duty or obligation under this act to-take any affirmative step to effect integration.
The foregoing is based upon the complaint filed herein and the assertion of the Attorney General and the NAACP that the present employment practices of the school board are inconsistent with the Kansas act against discrimination. (But see, United States v. Jefferson County Board of Education, 372 F. 2d 836 [5th Cir. Dec. 29, 1966], construing the two Brown decisions [Brown v. Board of Education, 347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954); and Brown v. Board of Education, 349 U. S. 294, 99 L. Ed. 1083, 75 S. Ct. 753 (1955)], and re-examining school desegregation standards in the light of the Civil Rights Act of 1964 and the Guidelines of the United States Office of Education, Department of Health, Education, and Welfare.)
The Attorney General and the NAACP argue in their brief as follows:
“The provisions of Sec. 44-1002(g) and Sec. 44-1009(a) (1), being parts of the same act, should be read together. Harris v. Shanahan, 192 Kan. 629, 635, 390 P. 2d 772 (1964). When this is done, it becomes clear that segregation or separation of employees on racial grounds constitutes an unlawful employment practice. Racial segregation or separation of employees is the simplest and most fundamental kind of discrimination against individual employees in the terms, conditions and privileges of their employment. It is for this reason that the legislature, while aiming the provisions of K. S. A. 44-1009(a) (1) at the discrimination against any individual, went on to state in K. S. A. 44-1002(g) that segregation and separation are included within the practices outlawed by K. S. A. 44-1009.”
Aside from the ambiguity of the expression “and includes segregate or separate” added at the end of subparagraph (g) in 44-1002, supra, when the statute is analyzed in the face of the declared state policy and purpose of the act as expressed in 44-1001, supra, in view of the issue here to be determined, we cannot say the act compels the school board to transfer a teacher in the public school system, over his objection, because of his race, to a school other than the one to which he has been regularly assigned in order that the faculty may be better integrated.
Under the Kansas act against discrimination the school board has no right to compel such transfer, and the civil rights commission has no authority to attempt to compel such transfer.
When the teachers intervened and the district court accepted the case for determination, the process of integrating the teaching staff of the various schools in Kansas City, Kansas, was voluntarily under way.
While the school board may have no trouble assigning new teachers to the various schools in a voluntary plan aimed to encourage integration, the problem, as indicated by the intervening teachers, is whether or not teachers who are presently teaching in the system and have obtained tenure can be involuntarily removed from their present teaching position and transferred to another school where the faculty makeup is predominantly of a race other than their own. Both colored and white teachers would be affected.
The trial court seized upon the distinction between probationary teachers (K. S. A. 72-5403) and teachers who have obtained tenure (K. S. A. 72-5404) in construing the Kansas act against discrimina-, tion. We fail to see how the construction of the antidiscrimination act can be affected by the tenure status of a teacher under the act providing for the tenure of instructors in cities having a population of more than 120,000 inhabitants. (K. S.A. 72-5401 to 72-5409, inclusive.)
Furthermore, under the state of the record we fail to see a need to consider the property rights of teachers, if any, under their teaching contract with the school board. On the facts in this case, as indicated by the record, the contract which the various teachers have with the school board specifies only that they teach in the Kansas City, Kansas, school system. The teachers’ contract does not specify a particular school. Thus, insofar as the teachers’ contracts are concerned, the school board could assign a teacher to teach anywhere within its school system. But it may not be wise administration or professionally efficient to transfer a teacher to another school against that teacher’s wishes. Dr. Plucker testified concerning the transfer of teachers that he confers at length with teachers and gives weight to their thoughts and opinions in regard to a transfer.
When the Attorney General filed the complaint in the instant case, he set forth three specific unlawful employment practices in which the school board was alleged to have discriminated against persons of the negro race in violation of the Kansas act against discrimination. On each of these charges he failed to sustain the burden of proof cast upon him to show a violation of the act. The issue injected at the pretrial conference presented a question of law to the trial court on the construction of the act, which it erroneously determined.
We hold the Kansas act against discrimination bars discrimination only. It does not purport to be concerned with the integration of the races as such on the teaching staff of a public school system or anywhere else. Therefore, the school board cannot be compelled under the Kansas act against discrimination to transfer a teacher in the public school system, over his objection, because of his race, to a school other than the one to which he has been regularly assigned in order that the faculty may be better integrated.
For the reasons heretofore assigned, the order of the lower court is affirmed in all respects, except that portion thereof sustaining the complainant’s motion for summary judgment as it concerns probationary teachers, which is reversed. | [
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The opinion of the court was delivered by
Kaul, J.;
The question presented in this appeal is whether or not a specific devise of real estate was adeemed in testator’s lifetime.
D. E. Snyder, sometimes referred to as testator or deceased, purchased an 840 acre ranch situated in the northern part of Crawford County on March 27, 1950. Mr. Snyder and his wife, May, moved onto the ranch in 1952 and resided there until 1959. On November 25, 1953, D. E. Snyder executed his will containing the specific devise in question pursuant to the terms of which the ranch was devised to his two nephews Danny Snyder and Robert Snyder, appellants herein, subject to certain conditions and limitations.
On September 30, 1959, D. E. Snyder and wife, May, entered into an agreement with Roy King Company, Ltd., a corporation, for the sale of the ranch for the sum of $63,000.00. The agreement, referred to hereafter as the King agreement or contract, designated the Girard National Bank as escrow agent and provided for the payment of $1,000 upon the execution of the contract, receipt of which was acknowledged; $1,500 on November 15, 1959; $2,500 on April 1, 1960; and $2,500 semiannually thereafter on October 1 and April 1 of each year for six years. It was further provided that at the end of six years, on April 1, 1966, the King Company should pay such additional amounts as necessary to make a total principal payment on the contract of $20,000, and then the King Company should execute a note and mortgage on the real estate for the balance of $43,000. The note and mortgage were to bear interest at the rate of five percent, payable semiannually and the principal was payable in 15 years, with the privilege of paying any or all of the principal at that time.
The contract further provided that Snyders were to pay the 1959 taxes and that thereafter the King Company was to regularly and seasonably pay all taxes and assessments becoming due on said premises and should keep the improvements on said premises insured for a sum of not less than $12,000, the policy to be placed in escrow. Snyders agreed to transfer all insurance then held by them on the improvements to the King Company who was to pay the pro rata volume of the same. It was further agreed Snyders would execute a warranty deed and deposit it together with the abstract of title in escrow.
The agreement further provided that in case King Company failed to make the payments provided for in a period longer than six months or failed to pay the taxes or supply insurance then the warranty deed and abstract were to be returned to Snyders and all payments made under the terms of the contract would be considered as rent and King Company was to immediately surrender possession to Snyders.
A part of the prefatory paragraph of the agreement reads as follows:
“Whereas the parties of the first part have this day sold the following described estate, to wit:
“(describing it.)” (Emphasis supplied.)
On April 14, 1961, Roy King Company, Ltd., assigned to Donald G. Rutherford and his wife, Marihta Rutherford, all of its right, title and interest in the Snyder contract and to the real estate described therein for the total sum of $74,250.00. On the same date an agreement, entitled contract of sale of real estate, was entered into between the Snyders and the Rutherfords for the total sum of $57,481.58, which was designated as the balance due Snyders in the assignment agreement between King Company and Rutherfords.
The contract between Snyders and Rutherfords, hereafter referred to as the Rutherford contract, provided generally for payments and the execution of a note and mortgage as had been provided for in the King Company contract. In the Rutherford contract it was announced that sellers (Snyders) agree to sell, convey and warrant unto buyers (Rutherfords) the real estate in question. Forfeiture in the Rutherford contract was changed from that provided for in the King contract in that a grace period of one year instead of six months was established. Escrow requirements as to both parties were detailed. Possession was transferred to Rutherfords as follows:
“3. Possession: Buyers shall have possession of the real estate hereby sold in present condition at the time and in accordance with the terms and conditions of certain assignment of even date from roy king company, ltd., a Delaware corporation, to buyers.” (Emphasis supplied.)
On December 7, 1964, D. E. Snyder died. On that date the balance due on the Rutherford contract amounted to $49,458.96, which was reduced by a payment of Rutherfords to $43,000.00 on March 21, 1966. On December 18, 1964, May Snyder was appointed administratrix of the estate of D. E. Snyder. In November of 1965 the will in question was discovered and admitted to probate on December 27, 1965. T. D. Hampson, who was nominated in the will, was appointed executor.
The executor filed a petition for final settlement of the estate in which the ademption of the specific devise to the appellants was recognized. The appellants filed written defenses to the petition for final settlement asserting claims to the unpaid balance of the principal under the contract of sale to King Company and asking that the 840 acre ranch be assigned to Danny Snyder and Robert Snyder subject to such contract of sale. The appellants made no claim to any cows or interest in any cows owned by the deceased at the time of his death.
On March 3, 1966, the probate court denied the executor’s claim of ademption and assigned the 840 acre ranch to the two nephews, appellants herein, subject to the Rutherford contract and further ruled that the proceeds of the sale thereof, both principal and interest, paid since the death of the testator should be distributed one-half to Danny Snyder and one-half to Robert Snyder, and that the testator’s one-half interest in the note of the Rutherfords should be assigned to the two nephews, the result being that May Snyder, the widow, would own one-half thereof and each nephew one-fourth. From this ruling of the probate court May Snyder appealed to the district court.
In March of 1966, the Rutherfords having made the required payments demanded and received the deed from the escrow agent.
On September 27, 1966, the district court heard the matter on a stipulation of facts and reversed the ruling of the probate court by holding that an ademption of the specific bequest to appellants had been effected at the time of the death of D. E. Snyder, and modified the probate court’s order of distribution accordingly. The two nephews, Danny Snyder and Robert Snyder, thereupon perfected this appeal.
The provisions of the will of D. E. Snyder pertinent to our consideration read as follows:
“Second: I have enjoyed my experience as a farmer and a stockman, particularly in connection with the development of a Hereford herd. I want to make a provision for my nephews, Danny Snyder and Robert Snyder, with the particular thought that they likewise might carry on the Snyder name in connection with good farming practice and the further development of the Hereford cattle. I, therefore, give, devise and bequeath to Danny Snyder and Robert Snyder, my nephews, a 840 acre ranch situated in the northern part of Crawford County, Kansas, and in connection with said devise, bequeath to said Danny Snyder and Robert Snyder one hundred (100) Hereford cows, if I have that many at the time of my decease and if not, what cows I might have on said ranch at the time of my decease. The foregoing devise of said real estate is to the said nephews, to share and share alike, but with this further limitation: It is a condition and a limitation that said Danny Snyder and Robert Snyder, or either of them, shall not dispose of said ranch by sale, mortgage, encumbrance, or in anywise encumber it until the youngest of them shall have attained the age of forty-five years. In the event said Danny Snyder or Robert Snyder shall fail to pay the taxes upon said real property previous to the youngest attaining the age of forty-five years, then the land shall pass as hereinafter provided. In the event of the death of either Danny Snyder or Robert Snyder before fee simple title passes absolute to them, then it is my will that the survivor take all. In the event that both Danny Snyder and Robert Snyder should become deceased before the youngest shall have attained the age of forty-five years, then it is my will and I devise in that event only that said 840 acre ranch pass to the bodily issue of said Danny Snyder and Robert Snyder, each child taking its percentage of the whole, that is, if Danny should have two children and if Robert should have four children and both the said Danny Snyder and Robert Snyder should be precedeased, each child would take a one-sixth.
“Thikd: In the event that said nephews, Danny Snyder and Robert Snyder, should fail to pay the taxes on said property and/or in the event that both of said devisees, Danny Snyder and Robert Snyder, should die before the youngest should attain the age of forty-five years, then and in that event it is my will that fee simple title to said property pass to that class who would be my heirs at law in the event my wife, May Snyder, had precedeased me.”
The facts related, some of which will be further detailed in the course of this opinion, set the stage for our discussion.
We shall first examine the general nature of the common law doctrine of ademption and how it has been applied in this jurisdiction. The term is explained and defined in 6 Page on Wills (Bowe-Parker Revision), Ademption, §54.1, pp. 241, 242:
“In modem law the term ademption has two distinct meanings. It is used with reference to the act of the testator in paying to the legatee, in the lifetime of the testator, a legacy which the testator has given to the legatee by will, or in satisfying such legacy by giving, in place thereof, something of value. This is. sometimes spoken of as ademption by satisfaction. . . .
“The term ‘ademption’ is also used to indicate the loss of the legacy by the loss or destruction of the subject matter in the lifetime of the testator, or by the loss, transfer, or termination of the testator’s interest therein before his death. This is sometimes referred to as ademption by extinction; . . .”
In the instant case we are concerned with what has been denominated as ademption by extinction. In Kansas the application of the common law doctrine was limited by statute in 1868 (G. S. 1868, Ch. 117, Sec. 33, [G. S. 1935, 22-236 and 22-237]). The statutes referred to barred the working of the ademption unless the testator by the instrument in question was wholly divested of an interest in the-property previously devised with the execution provided for in 22-237, supra; that if the provisions of the instrument by which alteration of the testator s estate is made, are wholly inconsistent with the terms and nature of such previous specific bequests, a revocation still resulted. The statutes referred to were repealed in 1939 (Laws of 1939, Ch. 180, Sec. 280). Since then there has been no statutory control as to the application of the doctrine of ademption in this state.
In considering the effect of the statutes on the application of the common law doctrine, where a conveyance was made of previously devised property, in Willoughby v. Watson, 114 Kan. 82, 216 Pac. 1095 (1923), this court stated:
“At common law, before the Victorian Wills Act of 1837, a will of real estate spoke from its date, and was regarded as a specific appropriation of the land devised. Some consequences of these rules were considered in the case of Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146. Another consequence was, if the testator altered his estate in the land, the devise was revoked, recalled or canceled, the accurate technical term being adeemed. . . (p. 83.)
In the Willoughby case a conveyance of real estate previously devised and the receipt of a mortgage and note therefore was held to defeat the devise on the grounds that such conveyance was so inconsistent with the devise as to work an ademption within the provision of the statutes then in effect.
In the case of In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515 (1947), this court defines the term ademption as follows:
“. . . Ademption is the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the testator’s estate in his lifetime, and where the testator sells or disposes of real or personal property which is the subject matter of a specific legacy, the sale or disposal, without more, results in an ademption and the legatee takes nothing of it under the will. See 69 C. J. 998, 1007. The following cases recognize the rule and its effect: Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146; Willoughby v. Watson, 114 Kan. 82, 216 Pac. 1095; Taylor v. Hull, 121 Kan. 102, 245 Pac. 1026; Warren v. Phebus, 132 Kan. 816, 297 Pac. 657; Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021; and other cases to the same effect might be cited. . . .” (pp. 393, 394.)
In a later case, in In re Estate of Chevalier, 167 Kan. 67, 204 P. 2d 748 (1949), it was held:
“Ademption is the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the testator’s estate in his lifetime.” (Syl. ¶ 2.)
A definitive statement of the doctrine and the terms of its application, which we believe fairly describes the viewpoint adopted in this jurisdiction, is found in Atkinson on Wills (2d Ed.), Ademption, §134, p. 741:
“A testamentary gift of testator’s specific real or personal property is adeemed, or fails completely, when the thing given does not exist as part of his estate at the time of his death. The doctrine now generally applies regardless of the intention of the testator, though if the change in the property is not substantial, there is no ademption.”
In this jurisdiction the cardinal rule that a will speaks from the time of the testator’s death unless it plainly shows a contrary intention, and is to be construed as operating according to the conditions and circumstances, has been adhered to consistently. See Reetz v. Sims, 177 Kan. 143, 276 P. 2d 368; In re Estate of Works, 168 Kan. 539, 213 P. 2d 998; and Purl v. Purl, 108 Kan. 673, 197 Pac. 185. It follows, therefore, that the question of whether or not a disposition by a testator of the subject matter of a specific bequest has worked an ademption of the bequest must be determined in the light of facts and circumstances existing at the time of testator’s death.
In the instant case at the time of testator’s death we find the following facts existing with respect to testator’s interest in the ranch.
1. A bilateral agreement between Snyders and King Company for the sale and purchase had been executed on September 30, 1959, which was later affirmed by reference and supplanted by the bilateral contract of sale between Snyders and Rutherfords on April 14, 1961.
2. Instruments had been executed and deposited in escrow as provided for in Section 4 of the Rutherford contract as follows:
“4. Escrow: On execution of this contract there is deposited with The Girard National Bank, Girard, Kansas, as Escrow Agent, the following instruments and documents for payment and delivery as follows:
“(a) Sellers deed (with documentary stamps in proper amount attached but not affixed) conveying unto buyers fee simple merchantable title to the above described real estate to be delivered to buyers on April 1, 1966, or on buyers’ payment on purchase price to a balance of forty three thousand and no/100 dollars ($43,000.00) whichever first occurs, at which time Escrow Agent shall deliver to sellers the real estate mortgage described in paragraph (b) below.
“(b) Buyers’ Promissory Note in the principal amount of forty three thousand and no/100 dollars ($43,000.00) and buyers’ first real mortgage on the above described real estate securing said Promissory Note which Promissory Note and Mortgage shall be by said Escrow Agent delivered to sellers on April 1, 1966, or on buyers’ payment on purchase price to a balance of FORTY THREE THOUSAND AND NO/100 DOLLARS ($43,000.00) whichever first occurs at the time of delivery to buyers of the Warranty Deed mentioned in paragraph (a) above.
“(c) Policies of fire, windstorm and other hazards extended coverage insurance on the' improvements on real estate sold in the amount of $12,000.00 endorsed with loss payable to the parties as their interest may appear.
“(d) The fee of said Escrow Agent shall be paid by buyer.
“(e) Abstract of Title (to be deposited after examination by buyers’ Attorney).”
(All of such instruments were dated and executed on April 14, 1961, the date of the Rutherford contract.)
3. Snyders had received $13,541.04 on the purchase price.
4. Snyders had dispersed of their Hereford herd, retaining only five cows and six or seven calves.
5. Possession of the ranch had been given to the King Company in October 1959 when Snyders moved to their home south of Girard, Rutherfords succeeded the King Company in possession of the ranch October 1961.
The specific question then presented for our determination is whether or not, under the facts and circumstances related, the interest of D. E. Snyder in the ranch was altered or disposed of at the time of his death to such an extent as to work an ademption of the specific devise to appellants; their rights to the proceeds of the sale being determined thereby.
The appellants claim the contract here was only an executory contract to sell in the future; that at the time of testator’s death his interest therein was still that of real property, and, therefore the contract was insufficient to operate a revocation of the devise by the application of the doctrine of ademption. Appellees, on the other hand, contend that even though the Rutherford contract is considered an executory contract at the time of D. E. Snyder’s death, nevertheless his interest in the real estate in question had undergone such a substantial change that the previous devise thereof must be considered adeemed.
The effect of an executory contract to sell and convey real estate on the interest of the vendor therein at his death with respect to the disposition of the proceeds of the sale has often been a subject of judicial examination. Problems in connection therewith have been resolved with some difficulty in this state, as well as in most jurisdictions. The problem has necessitated determination not only where the ademption of a specific bequest was at issue, but even more frequently where it was necssary to determine whether a vendor’s interest was that of personalty or realty in order to resolve questions of succession in both testate and intestate estates.
The general rule is set out in 57 Am. Jur., Wills, §1586, p. 1087, as follows:
“Where a testator contracts to sell property which he has specifically devised or bequeathed in a previously executed will, it is generally agreed that purchase money thereafter paid in accordance with the contract, whether before or after testator’s death, does not pass under the gift but is to be disposed of as personalty, unless, as is sometimes the case, a different result is required by the provisions of applicable statutes.”
The application of the rule in terms of what the text writer describes ás the orthodox rule is set out in Atkinson on Wills (2d Ed.), Ademption, §134, pp. 744, 745, as follows:
“. . . When the property bequeathed or devised has not been conveyed but only subjected to a contract of sale by the testator, the orthodox view is that the testamentary provision is adeemed and that the right to enforce the contract and receive the proceeds does not pass to the legatee or devisee. Some jurisdictions have statutes to the effect that an executory contract of sale does not work an .ademption.”
While particular distinction have been made depending upon the terms and nature of the contract involved, we believe the decisions of this court on the subject are substantially in accord with the general rule.
• The appellants rely principally on the case of Pickens v. Campbell, 104 Kan. 425, 179 Pac. 343, to support then position. Ademption was not involved in the Pickens case. The question there was whether the interest of deceased in certain Kansas real state was wrongfully inventoried as real estate rather than personal property in the assets of his estate. The Pickens controversy was reviewed by this court in two appeals (Pickens v. Campbell, 98 Kan. 518, 159 Pac. 21, and Pickens v. Campbell, 104 Kan. 425.) Both opinions must be examined to understand the nature of the controversy. The action was initiated by two collateral heirs (Pickens and Schutt) of one Fensky, a California resident, who owned Kansas real estate, which he had contracted to sell prior to his death. The action was brought to set aside the final settlement of the Kansas ancillary administration on the grounds that Campbell, a Kansas lawyer who had been appointed administrator in Kansas, had fraudulently inventoried the property as real estate rather than personal property. In the first appeal, perfected by Campbell, a judgment of the trial court overruling a demurrer to the petition on the grounds that it stated a cause of action based on extrinsic fraud was affirmed by this court. The case was then tried and resulted in a judgment for defendant Campbell from which plaintiffs Pickens and Schutt appealed. The trial court’s judgment was premised on the proposition that the contracts involved were to effect a future rather than a present sale. The judgment was affirmed. (104 Kan. 518.)
Appellants claim the contracts in Pickens were so similar to that in the case at bar as to be determinative o£ the issue here. We cannot agree with the position taken by the appellants. It is true that the language contained in the Pickens contracts — agrees to sell and convey — was similar to language used in the case at bar in the Rutherford contract where Snyders, as sellers, “hereby agree to sell, convey and warrant.” However, in the King contract the parties state that they have this day sold the following described real estate and then agree to execute a deed and deposit the same together with other instruments in escrow. In Pickens the deeds were withheld by the vendor, Fensky, not to be delivered until payment in full had been received, and upon default the contracts were subject to immediate termination.
The Pickens contracts were described in the opinion as follows:
“. . . Title was withheld; performance by the vendee at the time stipulated was a condition precedent to the acquisition of title; default entailed forfeiture of payments already made, and right of possession; the vendor was then at liberty to reenter or to invoke the remedy of ejectment; and insertion of the formula, ‘Time is of the essence of this contract,’ would have been superfluous.” (pp. 427, 428.)
It was further stated:
“In this case most of the lots were sold for small payments to be made during considerable periods of time, and it is quite clear that Ferdinand Fensky intended to forestall lawsuits by requiring purchasers to accept contracts which provided for strict performance, under penalty of forfeiture. . . .” (p. 428.)
A careful analysis of the opinions in the two Pickens appeals leads to the conclusion that the court found Campbell, a Kansas lawyer, not guilty of fraud, as administrator, in inventorying the property as real estate rather than personal property, because the contracts were little more than options with nominal down payments, subject to immediate termination upon any default by the buyers. In other words, we believe the final decision in Pickens was reached on the premise that so little change or alteration had been effected in the deceased’s interest in the property that it was not fraud on the part of Campbell to inventory it as realty rather than personalty.
We have examined the cases cited by both parties and in our research examined many others in which this corut has delineated various factors to be considered in determining whether or not the interest of a deceased in real property had been so altered by an executory contract of sale as to effect a conversion from realty to personalty. The most recent case in which the problem was considered is that of In re Estate of Taylor, 185 Kan. 523, 345 P. 2d 1028. In the Taylor case the will of testatrix (Maggie Taylor) directed:
“. . . [I]n the event I have not disposed of the property at 2323 Elm-wood Street, Kansas City, Kansas, at the time of my death, that it go into and become a part of the assets of my estate, . . .” (p. 524.)
• A year and nine months prior to her death, Mrs. Taylor, executed an instrument denominated “Option Contract” to sell the Elm-wood street property. The sale price under the option contract was $4,065.45, approximately $1,500 of which had been paid at the time of the death of Mrs. Taylor.
This court held the option agreement to be in fact an executory contract of sale and in the opinion the status of the interest of the decedent in real property, under an executory contract of sale at the time of death, was discussed in depth. There it was stated:
“It cannot be gainsaid that an executory contract providing that the owner of property will convey certain real estate to another by warranty deed warranting the title thereto as of the date of the contract, upon the making and completion of the installment payments therein set forth, has placed that property out of his control to such an extent that it has been disposed of. The fact, as we have seen, such an agreement contains provisions for its forfeiture for nonpayment or a breach of its other terms and conditions does not warrant a contrary conclusion as is urged by appellant. Therefore we hold that the trial court did not err in its ruling that as a matter of law the involved contract disposed of the real property known as 2323 Elmwood Street, Kansas City, Kansas, within the meaning of Paragraph 4 of the will.
“Finally it is urged that the trial court erred in holding (1) that the proceeds collected to date or hereafter collected under the involved contract should go to the assets of the estate to be distributed to the other devisees and legatees set out in the will and not be treated as a specific devise to the surviving husband and (2) that if such contract is sold by the probate court, then the proceeds of such sale should go to the assets of the estate to be distributed to the other devisees and legatees set out in the will and not be treated as a specific bequest to the surviving husband. These questions can be considered together.
“In Pickens v. Campbell, 98 Kan. 518, 522, 159 Pac. 21, it is said that ordinarily the right to the purchase price of land, contracted to be sold but not conveyed at the time of the vendor’s death, passes to. his personal representative and not to his heirs. Such is the general rule. See 55 Am. Jur., Vendor and Purchaser, pp. 785, 786, § 359, which reads:
“ ‘The equitable principle that the interest of the vendor under an executory land contract is to be regarded as personalty has been frequently applied in the distribution of a deceased vendor’s estate; accordingly, it is held that the vendor’s interest in the land which he has contracted to sell passes to his personal representative as personalty, together with the right to the unpaid purchase money and securities therefor, . . .’
“Application of the foregoing rule means that proceeds received or to be received under the contract are to be distributed in accord with operative provisions of the will and that the trial court’s rulings on the two questions last above mentioned were proper and must be upheld.” (pp. 527, 528, 529.)
Similar cases in which real property, under an executory contract of sale, has been held to have been converted into personalty and the proceeds distributed as assets of decedent’s estate are: Courtney v. Woodworth, 9 Kan. (2d Ed.) *443, where a purchaser was given a title-bond, put in possession, and time not made of essence, it was held the vendor may treat the bond as an equitable mortgage. The same result was obtained in Chambers v. Anderson, 51 Kan. 385, 32 Pac. 1098, where a contract and deed were deposited in escrow.
In Jones v. Hollister, 51 Kan. 310, 32 Pac. 1115, the vendor received part of the purchase price and took a promissory note for deferred payments, put vendee in possession and, time not being the essence of the contract, it was held the entire equitable estate passed to vendee or his assigns.
A contract, closely akin to those considered here, was the subject of examination in Gilmore v. Gilmore, 60 Kan. 606, 57 Pac. 505. There the contract provided that the deed, notes and mortgage were to be deposited in escrow until notes were reduced to a fixed amount, the vendor dying prior thereto, it was held:
. A contract for the sale of real estate works an equitable conversion of tlie land into personalty from the time when it was made, and the purchase-money becomes, thereupon, a part of the vendor’s personal estate, . . . “(pp. 609, 610)
Similar holdings are to be found in Williams v. Osage County, 84 Kan. 508, 114 Pac. 858; Gordon v. Munn, 87 Kan. 624, 125 Pac. 1; Gault v. Hurd, 103 Kan. 51, 172 Pac. 1011; Yost v. Guinn, 106 Kan. 465, 188 Pac. 427; Neal v. Owings, 108 Kan. 73, 194 Pac. 324; Gamer v. Piper, 125 Kan. 395, 264 Pac. 1071; In re Estate of Elliott, 174 Kan. 252, 255 P. 2d 645; Farrell v. The Federal Land Bank of Wichita, 175 Kan. 786, 267 P. 2d 497.
The cases cited are not intended to represent a complete collection of Kansas cases on the subj'ect. However, they portray a consistent attitude in this jurisdiction from which the conclusion may be drawn that where a contract of sale provides for the execution and deposit of a deed in escrow, a transfer of possession, a substantial down payment, and where time is not made of essence, the interest of vendor is converted from realty to personalty, as of his death, and the proceeds distributed accordingly. While all of the elements are not to be found in all of the cases cited, we find those which we have mentioned to be of persuasive significance and the most frequently considered.
Some of the cases in which a contrary conclusion was obtained are: Douglas Co. v. Union Pac. Ry. Co. E. D., 5 Kan. (2d Ed.) *615; Brown v. Thomas, Sheriff, 37 Kan. 282, 15 Pac. 211; Aigler v. Land Co., 51 Kan. 718, 33 Pac. 593; Pickens v. Campbell, 104 Kan. 425, 179 Pac. 343; Kansas Power Co. v. Smith County Commrs, 122 Kan. 252, 251 Pac. 1114; Johnson v. Kroeker, 130 Kan. 620, 287 Pac. 241.
In many of the cases last cited the contract in question was held to be merely an option. In some a deed was not executed or if so then not deposited in escrow but withheld by vendor. In none of them are all of the elements previously mentioned found to be in existence on the death of a decedent.
A careful analysis of the decisions which we have cited leads to the conclusion that the issue to be resolved rests, not so much on whether or not the contract is to be classified as an option, one for sale in the future or one for present sale, but rather on the proposition whether the provisions of the contract and the performance had in connection therewith, prior to the vendor’s death, effect such • an alteration or substantial change in vendor’s interest as to convert it from one of realty to personalty.
In the instant case the King contract, the King assignment to Rutherfords, confirmed and referred to in the Rutherford contract, and the Rutherford contract itself, are all to be considered in our determination. As we have indicated, some language is to be found in the King contract indicating an intention of the parties that the land in question had been sold. We have not, however, reached our conclusion on a basis of the tense used in the contract but rather on the alteration and substantial change wrought in the interest of D. E. Snyder at the time of his death. There is no express provision making time the essence in either the King or Rutherford contracts.
In Russell v. Ferrell, 181 Kan. 259, 311 P. 2d 347, it was held:
“Time is not ordinarily regarded as of the essence of a contract unless it is so stipulated by express terms, or is necessarily implied from the character of the obligations assumed; this is especially true with respect to executory contracts for the sale of real estate which are considered in equity as vesting the equitable title in the purchaser subject to the claim of the vendor for the purchase money.” (Syl. fl.)
Under the Rutherford contract the deed was executed, documentary stamps attached and deposited in escrow along with vendees’ executed promissory note and mortgage. The vendees had long been in possession at the time of vendor’s death. A forfeiture grace period of one year was provided for, interest on past due payments was increased from five to eight percent, a provision which proscribes any inference that time was of the essence. The Rutherford contract contained bilateral agreements which clearly subjected the contract to specific performance.
For the reasons stated we hold the Rutherford contract and the related facts and circumstances to have so substantially changed the interest of D. E. Snyder in the real estate in question at the time of his death so as to work an ademption of the specific bequests in question.
The appellants complain as to a number of the trial court’s findings of fact. We have examined appellants’ contentions in this regard and their arguments in support thereof in the light of the record. While some of the findings appear to be superfluous or immaterial they cannot be said to derogate the correctness of the trial court’s judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for damages, both actual and punitive, wherein the plaintiff seeks to recover for the defendant’s willful, wanton, malicious and cruel conduct in coming onto the plaintiff’s premises, in plaintiff’s absence, and in shooting and wounding plaintiff’s dog in the presence of plaintiff’s wife without justification or excuse and without the acquiescence or condonation of the plaintiff or his wife. The jury, after hearing the case, returned a verdict for the defendant, and the plaintiff has duly perfected an appeal.
The three issues presented on appeal concern: (1) The construction and application of K. S. A. 47-646 to- the facts in this case; (2) instructions given by the trial court; and (3) exclusion of evidence.
K. S. A. 47-646 provides:
“It shall be lawful for any person at any time to kill any dog which may be found injuring or attempting to injure any cattle, hogs or sheep.”
On the 8th day of December, 1965, at about 9:00 a. m., Glen Bauman (defendant-appellee) heard hogs squealing in the hog lot on his farm near Neodesha, Kansas. After procuring his .22 caliber rifle he immediately ran to his hog lot and found three dogs attacking and biting his hogs. One was a German Shepherd, another a small black dog, and the other was a little brown dog.
He shot at the German Shepherd dog. It yelped and the dogs ran out of the lot headed in an easterly direction across the pasture of his neighbor York, where he shot several more times at the dogs. He then- ran to his pickup truck, pursued the dogs and intercepted them in the York pasture into which they had run. There he took several more shots at the three dogs.
All three dogs ran onto the property of Cecil McDonald (plaintiff-appellant), but the two smaller dogs ran on across the property, while the German Shepherd stopped.
Bauman did not fire into the McDonald place from the pasture, but after the dogs ran onto the McDonald place he got into his truck, drove onto the road and in the driveway onto the McDonald premises. Mrs. McDonald and her nine-year-old son, Louis, were in the yard. Bauman told Mrs. McDonald that her dog had been involved in killing some hogs, that he shot it and that it was down by a car on their property.
According to Bauman’s testimony, “Mrs. McDonald stated, ‘Well, we can’t have a dog that will kill your livestock, so go ahead and finish the job.’ ”
He then testified he shot the dog and Mrs. McDonald said, “ ‘We intended to get rid of the dog anyway.’ ” Bauman said he shot the dog twice; that it ran under the house; and before he left he told the McDonald boy to leave the dog alone under the house and let his father look after the dog.
When Bauman first came onto the McDonald property the German Shepherd dog was already wounded and blood was squirting out of the side of her neck. The shells used by Bauman were twenty-two shorts and accounted for the fact that they were not powerful enough to kill the dog.
Cecil McDonald (plaintiff-appellant) was away from his home on business until late in the afternoon on the day in question. When he returned home he found his female German Shepherd dog, “Fraline,” had been shot and was under the house. He helped the dog out from under the house, took her to a veterinary clinic and instructed the veterinarian to save the dog. He said to the veterinarian, “I don’t care what it costs, save her.” As a result the dog was treated at the clinic for three or three and one-half weeks where the veterinarian operated on her right hind leg, performing an open reduction of the fracture of the right femur, removing about three and one-half inches of the bone. Medical bills amounted to $59.75 and the future expense of treating the dog was estimated to be $35 to $60.
McDonald testified that he purchased the German Shepherd dog, named “Fraline,” for $75; that she was eligible for registry but not registered; that she was trained as a watch dog for his used car lots; that he valued the dog at $3,000 or $4,000, and as a result of her injuries she is not worth much as a watch dog. In his petition McDonald sought actual damages in the amount of $2,950.75 and punitive damages in the amount of $5,000. (See, 1 A. L. R. 3d 997 for an annotation on “Measure and Elements of Damages for Killing or Injuring Dog.”)
In his pleadings McDonald alleged that he was the owner of the German Shepherd dog, Fraline, and on the day in question the defendant Bauman came to the plaintiff’s home uninvited and:
“. . . did then and there willfully, wantonly, cruelly, maliciously, and without justification or excuse therefor, fire a gun at, toward and into the above described dog owned by the plaintiff. That said defendant fired six (6) bullets into said plaintiff’s dog, and that said bullets so fired at and into said dog caused numerous wounds to said dog. That all of the bullets pierced the body of said dog causing grievous wounds, injuries and damage to said dog. That said defendant shot said dog six times in the presence of Mrs. Cecil McDonald, the wife of the plaintiff. . . . That at no time had either Mr. and Mrs. Cecil McDonald acquiesced or condoned the shooting of the dog belonging to the said Cecil McDonald.”
In his answer the deféndant Bauman alleged that on or about the 8th day of December, 1965, he did:
. . shoot a dog apparently belonging to plaintiff herein and that said dog was first shot on defendant’s premises in the hog feed lot where it was bothering, worrying and attempting to injure defendant’s hogs and further that he shot at the dog as it was leaving the premises and that in pursuit of said wounded dog he followed it to the Cecil McDonald premises where defendant told Mrs. McDonald that he had shot the dog over on defendant’s premises in his feed lot and had followed it over to the McDonalds and asked her if she wanted him to finish the job or if she wanted to have Cecil, her husband, do it and she specifically told defendant and directed him to go ahead and finish the job as he had already shot it and then, after being requested to do so, he shot the dog two times and left the McDonald premises. Defendant specifically denies that he shot said dog maliciously and without justification or excuse therefor and further does allege that he acted in good faith and believes that he was fully justified, under the provisions of K. S. A. 47-646, in attempting to protect his property and in the action taken and further that he would have been legally justified in killing said dog'free from any liability.” •
The appellant first contends the trial court conducted the trial of the case, which resulted in a verdict for the defendant, upon the wrong theory. By instruction No. 4 the trial court instructed:
“Since defendant admits that he shot plaintiff’s dog the burden of proof is upon the defendant to show by a preponderance of the evidence that he was justified in shooting it. In this respect you are instructed that it is lawful for any person at any time to kill any dog which may be found injuring or attempting to injure any cattle, hogs or sheep. Therefore, the defendant has the burden of proving by a preponderance of the evidence that he did find plaintiff’s dog injuring or attempting to injure defendant’s hogs. If you do so find, however, then it is a complete defense to the action and your verdict must be in favor of defendant.”
The appellant contends the trial court instructed, in substance, that if his dog was found by the appellee injuring or attempting to injure appellee’s hogs, this fact, in and of itself, operated as a complete defense to the action, regardless of the time which might have elapsed between the injuring or the attempt to injure the hogs and the shooting of the dog.
On this point the appellant cites' the court to State v. Fisher, 142 Kan. 627, 50 P. 2d 983, for the proposition that the statute (47-646, supra) gives the owner of livestock the right to kill a dog only when the dog is found injuring or attempting to injure any cattle, hogs or sheep, or when it has been found worrying or injuring them at a reasonable time prior to the killing of the dog. It is argued there is nothing in this statute which makes it lawful to wound a dog and then leave it without destroying it, even if the dog is guilty.
As part of the appellant’s case in chief, he called the appellee as a witness and asked him:
“Q. Now I will ask you, Mr. Bauman, you claim you had some hogs killed in September of 1965?
“A. Yes, sir.”
Though not within the issues framed by the pleadings, the appellant sought to make the most of this and other testimony along the same line by contending that the jury was entitled to speculate and consider the September incident as justification for the shooting of the dog in December. (The evidence establishes that none of the appellee’s hogs was killed on December 8.) We find no merit to this contention. Furthermore, we find no merit in the contention that the dog was merely wounded, whereas the statute authorizes one to kill a dog which has been found injuring or attempting to injure any cattle, hogs or sheep. In this situation the lesser act of wounding is included in the greater act of killing which is authorized by the statute.
Heretofore the provisions of 47-646, supra, have not been squarely before this court for construction. State v. Fisher, supra, cited by the appellant, was a criminal prosecution under R. S. 21-565 for killing a dog belonging to another. The court there said:
“Appellant complains of the inconsistency between instructions Nos. 5 and 6, the former stating the right under the statute to kill a dog found worrying or injuring sheep, and the latter stating in detail the pro and con of such feature of worrying or injuring them, or within a reasonable time prior to the killing of the dog it had been worrying or injuring them. This seems to be along the usual line of elucidating both sides of a pertinent situation. Appellant further requested the court to add to the last instruction a clause to the effect that if they found that the defendant in good faith believed it was necessary to kill the dog to prevent injury to his livestock, then the act was not maliciously committed and they should find the defendant not guilty. The court declined to make this addition, and we think it was justified in so declining, because the counter abstract states, as quoted above, that the defendant testified that this dog ‘has never worried or killed any of his sheep or other livestock.’ Appellant argues as against this statement of his own that the killing of the dog would not be willful or malicious if he thought it necessary to do so to protect his sheep. The trouble with this reasoning is that the statute above quoted in giving one a right to kill a dog does not go that far. It only applies when the dog has been found worrying or injuring them. The killing of the dog not found worrying or injurying [sic] them will necessarily be unlawful.” (pp. 629, 630.)
Rasically we are here concerned with the justification of a land owner to kill a trespassing dog not actually engaged in the act of depredation at the time of its destruction.
Cases in this country seem to be about equally divided on the question in the application of the common law. However, where statutes are involved conferring the right to kill dogs that are worrying, wounding or killing sheep or other livestock, there is more uniformity in the rule. The majority of the courts hold, where a statute has been enacted, that the dog need not necessarily be in the act of depredation to justify the killing. (15 A. L. R. 2d 578 [§4, p. 584].)
Some states which adhered to the strict common law concept that the dog must be engaged in the act of depredation to justify the killing, after the enactment of a statute similar to K. S. A. 47-646, have held the statute did not confer upon the owner of livestock any power to kill a dog when actually engaged in killing such livestock that such owner did not possess at the common law, but the statute did confer upon him the right to pursue and kill the dog after the act of depredation had been accomplished and the peril had ceased — a right, the existence of which at common law may well be doubted. (Reed v. Goldneck, 112 Mo. App. 310, 86 S. W. 1104 [1905]; Bean v. Branson, 217 Mo. App. 399, 266 S. W. 743 [1924]; Anderson v. Smith, 7 Ill. App. 354 [1880]; and Eaton et al. v. Lake et al., 100 Or. 622, 197 Pac. 292 [1921].)
The instruction requested by the appellant, which the trial court refused,' would require a landowner in the case of a trespassing dog to sustain the burden of proving that the act of depredation by the trespassing dog “was within such a reasonable period immediately prior to the shooting of the dog as would justify the shooting of plaintiff’s dog.”
Under such instruction the appellant argues there would be no justification on the part of a landowner to shoot a trespassing dog, after it left the premises and the peril to the hogs, as here, had ceased. The appellant contends the trial court seemed to ignore his theory “that, as a matter of law, the defendant had no right to enter onto plaintiff’s premises three-quarter mile from his own home after the excitement had completely subsided and to then start shooting.”
On this theory of the case the appellant moved for a directed verdict, and for judgment notwithstanding the verdict on two different occasions, all of which the trial court overruled.
In his brief the appellant says his complaint is not merely for the injuring of the dog, but he is seeking punitive damages because of the fact appellee took the law into his own hands and harassed not only the dog but also the appellant’s wife and his son in his absence.
Actually, the issue presented on appeal is not quite as broad as the appellant seems to make it in his brief. Nowhere in the petition of the appellant is it alleged that the appellee harassed the appellant’s wife and minor son, or that he frightened them. The petition merely alleges that the plaintiff’s wife was present when the defendant shot the plaintiff’s dog on the plaintiff’s premises, and the record discloses no amendment or attempt to amend the petition.
The appellant says in his brief regardless of what his wife said under the duress of an angry man with a gun in his hand, upon her own premises, the appellant was, and is, aggrieved by the conduct of this appellee.
In construing the provisions of K. S. A. 47-646, as applied to the facts in this case, we hold a person has a lawful right to shoot, and either injure or kill, a trespassing dog which he finds on his premises injuring or attempting to injure any cattle, hogs or sheep, either at the time the dog is found in the act of depredation, or within a reasonable time thereafter, and he has the right within such reasonable time, if necessary, to pursue such dog after it has left his premises, and to shoot, and either injure or kill, such dog off his premises, provided if in so doing he enters upon another’s land, he enters with authority, or under such circumstances that authority to enter such other’s land may be implied. Obviously, the right of a person to pursue another’s dog and shoot it could not be asserted to nullify an unlawful trespass.
Under the foregoing rule the instruction requested by the appellant was ambiguous and too restrictive, and the trial court did not err in refusing to give the requested instruction. On the other hand, instruction No. 4 given by the trial court was too broad in that it did not limit the right of the appellee to shoot the dog to a reasonable time after the act of depredation by the appellant’s trespassing dog. This infirmity, however, did not prejudice the appellant. For upon all the evidence pertinent to the issues framed by the pleadings in this case, once the jury found tire appellant’s dog was caught by the appellee in the act of depredation upon the appellee’s premises, the appellee was in hot pursuit of the appellant’s dog. Under these circumstances the shooting of the appel lant’s dog on the appellant’s premises occurred within a reasonable time after the dog was caught in the appellee’s hog pen attacking hogs, as a matter of law.
Whether the appellee entered the premises of the appellant with the consent, or the implied consent, of the appellant or his wife, was a question for the jury to determine, but on this point the trial court gave the jury no instruction, and the record does not show the appellant requested one.
The appellant’s theory throughout the trial was that the appellee was confined to his own premises in exercising rights conferred upon him by 47-646, supra.
The trial court instructed on the nature of the appellant’s action, wherein the appellant alleged the acts of the appellee in shooting the dog were done willfully, wantonly, cruelly, maliciously, and without justification or excuse. It instructed on the nature of the appellee’s ánswer wherein he alleged justification. By instruction No. 9 the jury was given the definition of the terms “willful,” “wanton” and “malice” in connection with the instruction on punitive damages. Under these circumstances we think the jury was fully apprised of the issues framed by the pleadings which it was called upon to determine.
Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093, upon which the appellant relies for additional instructions, does not support him on the facts here confronting us. The appellant cites Natanson for the proposition that it is reversible error if the trial court fails to define the issues and state the pertinent law with accuracy, when further instructions are requested. Here, however, the trial court did define the issues framed by the pleadings and stated the law relating thereto .upon which the appellant requested instructions with sufficient accuracy, under the facts, to avoid prejudice to the appellant’s rights in the action.
Upon conflicting evidence the jury found generally in favor of the appellee, apparently giving full credence to the appellee’s account of the incident. It thus found the appellee had sustained the burden of proof to show by a preponderance of the evidence that he was justified in shooting the dog. It must be presumed under these circumstances the jury found all facts necessary to sustain the judgment in favor of the appellee. (Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130.) It thus found, as the appellee testified, that when the appellee entered upon the appellant’s premises and told Mrs. McDonald what had occurred, she told him “Well, we can’t have a dog that will kill your livestock, so go ahead and finish the job.” From such testimony the jury is presumed to have found the appellee was authorized to be on the appellant’s premises and shoot the appellant’s dog.
Testimony of other witnesses tended to bolster the appellee’s case. A neighbor who lived a quarter of a mile from the McDonald place said he knew the McDonald dog named Fraline; that she growled at someone and the appellant said “I am afraid I get one more litter of pups out of her I’m going to have to do something about her.”
Another neighbor who lives in the first house south of the McDonald home testified that she knew the dog, Fraline, and about three years ago the dog came on her premises and killed three chickens.
Mrs. McDonald testified when the appellee came onto their premises he was mad, red-faced, excited and had a gun. This testimony tended to confirm the fact that the appellee was in hot pursuit of the dog, after he found the dog on his premises committing an act of depredation.
The appellant complains of the trial court’s instruction on the punitive damages and in particular the portion wherein the jury was told:
“You cannot return a verdict for punitive damages unless you find that plaintiff is entitled to actual damages, . . .”
The appellant concedes that it was up to the jury to determine whether or not punitive damages were assessable in this case, but contends the question as to whether or not there were actual damages could not fairly be brought before the jury, since there was actual damage. On this point the appellant refers to the fact that he had actual veterinary expenses which establishes that he did have actual damages.
The point is not well taken. Before punitive damages may be awarded there must be a right to recover actual damages. (Watkins v. Layton, supra.)
Other instructions given by the trial court concerning which appellant makes complaint have been reviewed but are found to be of insufficient merit to warrant further consideration.
The appellant next complains of the refusal of the trial court to admit photographs in evidence. These were pictures of the appellant’s dog with his children and of the appellant’s premises. The trial court ruled that these photographs were irrelevant. On the issues presented by the pleadings in this case, the admission of these photographs was within the discretionary power of the trial court, and we cannot say on appellate review that the trial court erred in excluding these photographs as being irrelevant.
Where the jury, as here, returns a general verdict in favor of the appellee, and the appellant fails to establish on appellate review that he was prejudiced by the instructions given or the evidence excluded by the trial court, the appellee is entitled to have the evidence disclosed by the record construed in the light most favorable to him. Accordingly, the facts gleaned from the record have heretofore been stated most favorably to the appellee. The record as so construed supports the verdict of the jury and the judgment of the trial court.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over an injured workman’s permanent partial disability rating under a workmen’s compensation award.
The claimant was employed by the respondent as an oil field roustabout. His duties consisted of maintaining the operation of oil wells once production had been obtained. The injury occurred while claimant and a co-employee were changing the stroke on a pumping unit. A tail bearing struck and dislocated his left hip and fractured his left foot. He also suffered knee and back pains.
The special examiner awarded temporary total disability which has been paid and is not in dispute. He awarded partial permanent disability based on 35% disability to the body as a whole. On application for a director’s review, the director entered an order changing the rating to 75% disability to the body as a whole.
On appeal to the district court it found:
“1. The only question presented to the Court was the element of claimant’s permanent partial disability.
“2. The Court finds the same as the director in his order the 3d day of May 1966, that claimant had a permanent partial disability of $75.00 [75%].”
A journal entry was prepared and entered accordingly.
The respondent and insurance carrier have appealed. The chief contention is that there was no substantial evidence to support the amount of the award for permanent partial disability.
The appellants’ claim of inadequacy of the evidence is commingled with a legal question which we will first consider. The appellants object to the consideration of the testimony of appellee’s physician.
Dr. Vernon Filley, the physician who treated and cared for appellee over many months, is a general practitioner of medicine and a general surgeon with considerable experience in orthopedics. He testified that appellee was in good health and had no bodily defects or disabilities prior to the date of the accident; that he suffered a dislocated left hip, permanent injury to the sciatic nerve, injury to his left knee and foot and a probable ruptured inter-vertebral disc; that the damage to the sciatic nerve, which has both motor and sensory functions, causes extreme weakness in the knee and ankle joints and a numbness and lack of feeling in the appellee’s left extremity; that appellee has a lot of muscle spasm in this extremity and a lot of pain and spasm in his lower back; that he has reached his maximum recovery, and that surgical procedure was not recommended.
Dr. Filley further testified that appellee would never be able to return to his occupation of roustabout in the oil fields or similar type employment; that he could not pass a pre-employment physical for this type work or for a job in any type of industry; that he could not even perform light work as a truck driver or as a filling station attendant, and that he was wholly unfit for the common labor market. It was the doctor’s opinion that claimant was one hundred percent physically disabled.
Dr. Filley testified on cross-examination:
“Q. Are you familiar with the method which is utilized in workmen’s compensation proceedings to determine the disability of individuals and the computation of workmen’s compensation, if any?
“A. Yes.
“Q. You are? Tell me what it is.
“A. If an individual is unable to do the work that he was previously doing he is 100 per cent disabled.”
Appellants contend the entire testimony of Dr. Filley should be discredited and thus disregarded because he demonstrated a complete lack of understanding as to disability ratings under Kansas Workmen’s Compensation Law.
We cannot agree with appellants’ suggestion. Although they may have established that the doctor was not the best workmen’s compensation attorney, it was no reflection on the doctor’s medical testimony as to the nature and extent of appellee’s injuries.
Perhaps to avoid misunderstanding it should be noted that had the doctor suggested the test was inability to do work of the same type and character instead of making the test the ability to do the same work, his answer would not have been objectionable. In Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414, we held in the second paragraph of the syllabus:
“Tbe correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured.” (See, also, Dobson v. Apex Coal Co., 150 Kan. 80, 84, 91 P. 2d 5.)
Regardless of the doctor’s theory for rating permanent partial disability under the Workmen's Compensation Act, the trial court did not accept his percentage rating. The court was justified in using the doctor’s medical testimony as to the nature and extent of appellee’s injuries in arriving at his own permanent partial disability rating.
It may be suggested at this point that there was testimony by other medical experts that rated appellee’s permanent disability at 30% to 35%. However, there was also other lay testimony which supported the award. Appellee testified that to the date of the trial he was having considerable pain and difficulty with his lower back and with his entire left leg; that the leg was very weak and not capable of weight bearing; that the ankle was constantly creeling or turning on him and also that he was having foot drop or a tendency of the foot to drag; that his reflex muscles were not functioning at all and that it was impossible for him to lift even small amounts of weight; that he has limped constantly since the accident. He has not worked since the accident for the reason that he is in constant pain and for the reason that he cannot perform the simplest of tasks.
A trial court or fact finding body is not required to limit its consideration of a workman’s injury to the testimony of expert medical witnesses. (Hanna v. Edward Gray Corporation, 197 Kan. 793, 800, 421 P. 2d 205.)
Although we have limited our presentation of the testimony covering appellee’s injuries, we think the testimony presented amply demonstrates that there was substantial competent evidence to support the district court’s award.
On appellate review of workmen’s compensation cases inquiry is limited to questions of law only. We cannot weigh the evidence and we must consider it in the light most favorable to the prevailing party. (Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 823, 339 P. 2d 41; Kirksey v. General Motors Corporation, 190 Kan. 806, 378 P. 2d 91; Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108.)
There was substantial competent evidence to support the award.
The appellants complain because the district court did not make detailed findings. The contention is without merit. The court adopted the findings of the Workmens Compensation Director. In Turner v. Spencer-Safford Loadcraft, Inc., 189 Kan. 246, 250, 368 P. 2d 630, we stated:
“The trial court accepted and adopted the findings, conclusions, and award of the commissioner. Whenever the record supports an award allowing or denying compensation the judgment of the district court is conclusive. (Burns v. Topeka Fence Erectors, 174 Kan. 136, Syl. ¶ 5, 254 P. 2d 285.) See, also, Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 738, 347 P. 2d 235. The trial court was not required to make technical findings of fact, as contended by respondents, and the award was sufficient if supported by competent substantial evidence. . . .”
The appellants further contend that the award was improper for the reason that appellee had not performed work since the injury and therefore there was no basis on which the court could determine—
. . sixty percent (60%) of the difference between the amount he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury in employment, such compensation in no case to exceed forty-two dollars ($42) per week.” (K. S. A. 44-510 [3] [c], paragraph 24. Emphasis supplied.)
There was ample evidence to support a finding that the appellee was not yet able to perform any type of employment. The appellants rely on the dissenting opinion in Davis v. Braun, 170 Kan. 177, 223 P. 2d 958, to support their contention. We continue to adhere to the rule announced in the majority opinion. There is no merit to the contention.
A careful examination of the record discloses no justifiable reason for disturbing the award as made by the Workmen’s Compensation Director and the district court.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme,
Walter Carter is serving a sentence in the Kansas State Penitentiary for the forcible rape of his thirteen year old daughter. After conviction by a jury he prosecuted an appeal to this court. His conviction was affirmed in State v. Carter, 192 Kan. 440, 388 P. 2d 594.
The prisoner then filed a motion to vacate judgment and sentence pursuant to K. S. A. 60-1507. The lower court summarily denied the motion and the present appeal followed.
Two grounds are set forth in the motion upon which movant bases his claim for relief. These are (1) inadequate counsel and (2) illegal evidence received at the trial. These identical matters were presented, considered and refuted on direct appeal. (See State v. Carter, supra.)
This court has said the procedure under K. S. A. 60-1507 cannot be used as a substitute for a second appeal. (Rules of the Supreme Court No. 121 (c) (4) [194 Kan. xxvii]; Miles v. State, 195 Kan. 516, 407 P. 2d 507; Hanes v. State, 196 Kan. 404, 411 P. 2d 643.) When the motion presents no questions except those previously raised and refuted on direct appeal it presents no substantial ques tion of law or issue of fact. Such a determination was properly made by the trial court in the instant case.
Normally this would dispose of the appeal but astute and diligent counsel, appointed to represent the movant on appeal, questions the sufficiency of the lower court’s order on several additional grounds. He points out the motion to vacate was considered and determined without counsel being appointed for movant. The order denying the motion does not contain a finding appointment of counsel would not be to the prisoner’s advantage as prescribed by K. S. A. 62-1304.
We cannot accept this argument. Supreme Court Rule No. 121 (i) (194 Kan. xxvn) governs the procedure applicable to K. S. A. 60-1507. Under this rule a trial court is required to appoint counsel only when substantial questions of law or triable issues of fact are presented in the motion. No such questions or issues were presented by appellant’s motion.
K. S. A. 62-1304 applies only to arraignments and trials in criminal proceedings upon indictments or informations. It does not relate to proceedings under K. S. A. 60-1507.
Appellant questions the sufficiency of the hearing because the prisoner was not present and no evidentiary hearing was provided. We have repeatedly held the prisoner need not be transported to the hearing and no evidentiary hearing need be provided when no substantial questions of law and no triable issues of fact are presented in the motion. (Rules of the Supreme Court, No. 121 (h) [194 Kan. xxvii]; State v. Burnett, 194 Kan. 645, 400 P. 2d 971; Blacksmith v. State, 195 Kan. 523, 407 P. 2d 486.)
Appellant questions the sufficiency of notice of the hearing on the motion to vacate. The motion docket of the trial court listed all the cases and the dates for hearing including the appellant’s case. The docket was mailed to the prisoner at the Kansas State Penitentiary six days prior to the time his motion was considered and denied. Appellant argues that this is insufficient notice for the prisoner is uneducated in law and unable to read and understand a corut motion docket.
Regardless of the substance and sufficiency of such notice K. S. A. 60-1507 (h) provides when notice is required. Notice is required only when an evidentiary hearing is granted. If the motion and the files and records of the case conclusively show the prisoner is entitled to no relief the motion may be considered and determined in a summary way without notice to the movant. (State v. Burnett, supra; Blacksmith v. State, supra; McCall v. State, 196 Kan. 411, 411 P. 2d 647; Craig v. State, 198 Kan. 39, 422 P. 2d 955.)
We have examined the authorities cited by appellant. They relate to cases in which substantial questions of law or triable issues of fact were presented in the motion to vacate. The trial court correctly determined from the motion to vacate and the flies and records of the court no substantial questions of law or triable issues of fact were presented in the motion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendants, Jack Lloyd McCarty and John Boyd, were jointly tried for robbery in the first degree and both defendants were convicted. After their motion for new trial was overruled, the defendants filed this appeal. In the course of our opinion, we shall refer to the appellants either individually, or as defendants, and to the appellee as the state.
Throughout the trial and the proceedings for a new trial the defendants were represented by Mr. Charles S. Scott of Topeka. On this appeal they are represented by Mr. Thomas Odell Rost, also of Topeka. Both gentlemen are reputable members of the bar of this state.
The state’s evidence tended to show the following: Shortly before 2 p.m., Novmber 15, 1965, the defendant, McCarty, wearing an overcoat and a hat, entered a liquor store owned by a Mrs. Barbara Herman located at 1925 Seward Avenue, in Topeka; poking a long gun in her back, McCarty forced Mrs. Herman to the rear of the store and then compelled her to wait on a customer who bought a bottle of liquor with a number of quarters marked with red X’s.
As the customer left, Mrs. Herman fled to a pizza parlor next door yelling for help; there, a Mr. Taylor saw McCarty emerge from the liquor store and followed him to a waiting car where McCarty got into the back seat; the car was driven away by a second man whom Taylor identified as Boyd; Taylor followed the car to a bridge over the Kansas river and then returned to the store where he described the car and license number to the police. A check of the liquor store’s cash register showed that between seventy-nine and eighty dollars had been taken.
Descriptions of the get-away car and its license number were broadcast and shortly thereafter police officers spotted the car backing up to a tavern in North Topeka. As officers converged on the car, Boyd was apprehended and taken into custody; officers then began looking through the tavern for the second man; upon hearing noises overhead, one of the officers ran upstairs while others ran around to a window in time to see McCarty kick out the pane and jump to the ground, where he was received with open arms by the waiting policemen.
As the officer who went upstairs ran through the rooms, he observed a sawed-off 12-gauge shotgun which he proceeded to pick up; this gun was loaded with five 16-gauge shells which the officer later took out; both gun and shells were taken to the station along with the defendants.
At police headquarters, McCarty signed a written consent to a search of the living quarters over the tavern; armed with this consent, officers returned to the tavern where they obtained a further consent to the search from Mr. Buggs, tire tavern keeper; from their search the officers obtained the overcoat, also referred to as trench coat, and the hat worn by McCarty, a box of 12-gauge shotgun shells, five dollars and fifty cents in quarters, four marked with red X’s, and three dollars in dimes, the coins being found under a pillow on the bed. A total of seventy-one dollars was taken from the person of McCarty and six dollars and forty-five cents from Boyd.
No evidence was presented on behalf of the defense.
Four points are raised by the defendants in their brief: (1) physical evidence obtained from the search of the living quarters above the tavern was illegally obtained; (2) a confession given by McCarty was inadmissible; (3) McCarty’s statement was erroneously admitted as to Boyd; and (4) the Habitual Criminal Act under which both defendants were sentenced is invalid. We will discuss these points in order.
Turning to point one, the defendants concede the shotgun was correctly admitted, and in this, we agree. The gun was taken in “hot” pursuit of a very “hot” prospect and was clearly admissible in evidence.
What the defendants object to is the admission of items taken from the living quarters above the tavern when the officers returned to search it. It is argued that the search was illegal because McCarty was not advised, before executing his written consent, that evidence obtained from the search could be used against him.
We believe the defendants misconceive the reach of the Fourth Amendment. It was designed to afford a man and his property protection against unreasonable searches and seizures; to insure, for the individual, a sanctum where he and his effects might be free from unjustifiable official intrusion. Speaking on this topic, the federal Supreme Court, in Hoffa v. United States, 385 U. S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408, put it this way:
“. . . What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his oflice, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. . . .” (p. SOI.)
We deem it clear that the search of the defendants’ living quarters in this case was not unreasonable. It was made pursuant to McCarty’s express written consent and the oral permission of Buggs, the tavern keeper. There is not the slightest suggestion that deception was practiced or compulsion was employed in obtaining the consent of either man. The evidence shows the consent of both to be voluntary.
McCarty’s consent was sufficient as to Boyd, also. The rule appears well settled that where two persons jointly occupy premises, one of them may consent to a search of such premises. ( United States v. Sferas, 210 F. 2d 69, cert. den., 347 U. S. 935, 98 L. Ed. 1086, 74 S. Ct. 630; State v. Shephard, 255 Iowa 1218, 124 N. W. 2d 712; People v. Guyette, 231 C. A. 2d 460, 41 Cal. Rptr. 875; State v. Hall, 264 N. C. 559, 142 S. E. 2d 177; 79 C. J. S. Searches and Seizures § 62, p. 824.)
Our attention is called to the recent case of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Apparently the defendants would have us apply a Miranda prerequisite for an admissible confession to a valid consent to a search of private quarters. The defendants cite no authority in support of this contention and our limited research has discovered none.
It is our opinion, however, that the defendant’s argument is unsound and must be rejected. Miranda deals only with the compulsory self-incrimination barred by the Fifth Amendment, not with the unreasonable search and seizure proscribed by the Fourth Amendment. There is an obvious distinction between the purposes to be served by these two historic sections of the Bill of Rights. The Fifth Amendment prohibits the odious practice of compelling a man to convict himself; the Fourth guards the sanctity of his home and possessions as those terms have been judicially interpreted. An indispensable element of compulsory self-incrimination is some degree of compulsion. The essential component of an unreasonable search and seizure is some sort of unreasonableness.
No responsible court has yet said, to our knowledge, that before a valid voluntary consent to a search can be given, the person consenting must first be warned that whatever is discovered through the search may be used as evidence against him. We decline to be the first judicial body to expouse so dubious a theory.
The defendants next complain that McCarty’s confession was erroneously admitted because he was not warned that anything he said could be used against him. The record is somewhat confused in this respect but we find that when the court inquired of one witness if anyone told McCarty that anything he said might be used against him, the witness replied “I did.” This would seem sufficient to dispose of this matter.
We go on to add, however, that the trial judge held a thorough and comprehensive hearing, out of the jury’s presence, to determine whéther the confession was voluntarily given and, upon a wealth of evidence, concluded that McCarty’s statement was freely made. This procedure was in complete accord with the practice in this state. (State v. Seward, 163 Kan. 136, 181 P. 2d 478; State v. Hansen, 199 Kan. 17, 427 P. 2d 627.) The requirements set forth in Miranda are not applicable to the present case, for it was tried prior to that decision. (See Johnson v. New Jersey, 385 U. S. 719, 16 L. Ed. 2d 882, 86 S.Ct. 1772.)
The defendant, Boyd, further complains of the admission of the confession since it incriminates him as well as McCarty. We agree that a statement given by McCarty out of Boyd’s presence, and after the crime was consummated, would be inadmissible against Boyd. However, the confession was not admitted against Boyd. The trial court made it very plain, both at the time of admission and in his instructions at the close of the case, that the confession was to be considered only as against McCarty; that the jury must disregard any statements which incriminated Boyd; that nothing in McCarty’s confession could be used to convict Boyd; and that if Boyd was to be convicted it must be by other evidence.
It is the prevailing rule that where two or more defendants are jointly tried for the same offense, a declaration made by one may be admitted in evidence as against the maker, provided the court, by proper instructions, limits the application of such statement and makes clear to the jury that a statement made by one defendant may be considered against him only and not against a co-defendant. This principle was recognized long ago in State v. Johnson, 40 Kan. 266, 269, 19 Pac. 749.
The Indiana court in Hansen v. State, 230 Ind. 635, 106 N. E. 2d 226, defined the rule in this fashion:
“Where several defendants are tried together the confession of one, made in the absence of the other defendants, may be admitted against him if the court instructs or admonishes the jury it is admitted only against the one who made it and is not to be considered as evidence against any of the other defendants who did not join in the statement.” (p. 642.)
This case was followed in Johnson v. State, 245 Ind. 295, 198 N. E. 2d 373. See, also, Malcolm, Jr. v. State, 232 Md. 222, 192 A. 2d 281.
The principle has been applied by federal courts. In United States v. Gardner, 347 F. 2d 405 (1965) the court had this to say:
“In a joint trial, incriminating statements made by one defendant which mention another defendant and his conduct are admissible into evidence but only against the declarant. This is also true of a written confession by one defendant which names joint defendants. Delli Paoli v. United States, 352 U. S. 232, 237, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957). Such evidence is hearsay but it is admissible as to the declarant under the admission against interest exception to the hearsay rule. Id. at 240, 77 S. Ct. 294. The trial court should be careful at the time of the admission of such evidence and by its instructions make clear to the jury that the evidence is limited to the declarant only and is not to be considered as to other defendants.” (pp. 406, 407.)
Boyd contends, however, that the impression created by McCarty’s statement could not have been erased from the minds of the jury by instructions. It may be that the possibility of prejudice is always present in this sort of a situation. This was recognized in State v. Ordog, 45 N. J. 347; 212 A. 2d 370, cert. den., 384 U. S. 1022, 16 L. Ed. 2d 1025, 86 S. Ct. 1942, where the court said:
“It is indisputable that while the admission of one defendant’s confession in a joint trial has the potentiality of prejudice to other defendants implicated by the confession, such statements are, in some circumstances, admissible. . . . Thus, where a joint trial is held and the out-of-court confession of one defendant inculpates the other, the trial court must clearly, promptly and emphatically caution the jury on the limited effect to be given to the confession. State v. Murray, 33 N. J. 393, 398 (1960); State v. Johnson, 31 N. J. 489, 506 (1960). But even then there may be situations where limiting instructions would be ineffective.” (p. 355.)
In examining the question, we are forced to the view that under the facts of this case the jury reasonably could be expected to follow the court’s instructions. There were but two defendants here and but one confession. The facts surrounding the crime itself were not complicated or involved. We believe these factors would make it comparatively easy for the jury to recall the limited effect to be given McCarty’s statement and to disassociate references to Royd from tiróse which incriminated McCarty. (See State v. Ordog, supra.)
No good reason appears for believing that the jury disobeyed the court’s injunction, twice given, to disregard the statement, as it related to Royd. Experienced defense counsel had no fault to find with the instructions. The evidence against Royd, from sources other than McCarty’s statement, was persuasive. Under the circumstances disclosed in this case, we cannot say the trial court erred in admitting the confession.
Finally, the defendants would have us declare the Habitual Criminal Act (K. S. A. 21-107a) to be invalid. While acknowledging that this court has upheld the Act on prior occasions, defense counsel earnestly urges us to reconsider our position. The reasons now assigned for voiding the Act have previously been considered and rejected. Our position is adequately set out in Gladen v. State, 196 Kan. 586, 413 P. 2d 124, where arguments were advanced similar to those made here. We are satisfied with our holding in Gladen and perceive no reason for repeating what was said there.
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The opinion of the court was delivered by
Hatcher, C.:
This was a proceeding to vacate and set aside a sentence under the provisions of K. S. A. 60-1507.
On March 8, 1962, the petitioner was convicted of burglary in the second degree as defined by G. S. 1959 Supp., 21-520 and larceny as defined by G. S. 1949, 21-524. After due notice the petitioner was sentenced under G. S. 1949, 21-107a as an habitual criminal. (Statutory designation now K. S. A.)
On May 3, 1965, petitioner filed proceedings under K. S. A. 60-1507 seeking to have his conviction and sentence vacated and set aside. The trial court held a hearing after which it filed a well prepared memorandum decision on each issue presented and denied relief.
The petitioner has appealed to this court contending that the trial court erred in its ruling in three particulars which we will proceed to consider.
The appellant first contends that the trial court erred in refusing to grant appellant a full evidentiary hearing on the question of evidence obtained by illegal search and seizure. The trial court concluded:
“The petitioner is not entitled to relief on the ground that evidence was intro duced during the course' of the aforesaid criminal trial which was obtained by an allegedly unlawful search and seizure in violation of petitioner’s constitutional rights for the reason that petitioner’s failure to object to the admission of said evidence on said constitutional ground during the entire course of said criminal trial, final judgment and sentencing, constitutes a waiver and procedural bar to the raising of said right under statute and case law of the State of Kansas.”
We are forced to agree with the conclusion of the trial court. We have held in numerous cases' that alleged trial errors not presented to trial court will not be reviewed on appeal. (See, Jones v. Kansas City Embalming & Casket Co., 190 Kan. 51, 372 P. 2d 60; Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P. 2d 832; State v. Ireton, 193 Kan. 206, 392 P. 2d 883; State v. Hill, 193 Kan. 512, 515, 394 P. 2d 106; Williams v. Crouse, 193 Kan. 526, 394 P. 2d 96, and State v. Wolfe, 194 Kan. 697, 401 P. 2d 917.)
It would serve no useful purpose to deny review on appeal because .of the contemporaneous objection rule and then permit review by the more circuitous route under K. S. A. 60-1507 proceedings. The rule is necessary if a court is to be permitted to correct its own errors and litigation is to be brought to an end. The rule serves a legitimate state purpose.
We find no merit in appellant’s suggestion that his court appointed counsel provided ineffective assistance. In Hicks v. Hand, 189 Kan. 415, 417, 369 P. 2d 250, we state:
“The guarantee of effective assistance of counsel does not guarantee the most capable or learned counsel possible, but only a competent and reputable member of the bar. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; and Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219.) In any event the burden is cast upon the petitioner to show that his counsel was so incompetent and inadequate in representing him that the total effect was that of a complete absence of counsel. (Miller v. Hudspeth, supra; and Converse v. Hand, 185 Kan. 112, 340 P. 2d 874.) The petitioner has not sustained this burden.”
Appellant’s attorney defending the original prosecution was an experienced attorney in criminal matters having served as assistant county attorney of Shawnee County, Kansas, and having represented numerous criminal defendants in the district court. Any action or inaction taken by him must be charged to strategy rather than ignorance of the law.
The appellant ends his alleged errors with the contention that the trial court erroneously refused to set aside the judgment and sentence for the reason he was restricted to only six peremptory challenges. Appellant makes no suggestion that the offenses for which he was tried and convicted allowed him more than six such challenges but contends that as he faced a possible sentence of not less than fifteen years under the habitual criminal act he should have been allowed eight peremptory challenges under that part of K. S. A. 62-1402 which reads:
“If the offense be punishable by like imprisonment not less than a specified number of years, and no limit to the duration of such imprisonment is declared, to the number of eight, and no more.”
We disposed of a similar question in State v. Butler, 131 Kan. 680, 293 Pac. 756, where we held:
“When the court is impaneling the jury in a felony case, the penalty for the offense charged in the indictment or information furnishes the criterion . . . for determining number of peremptory challenges.”
A careful examination of the record discloses nothing that would justify our disturbing the findings and conclusions of the trial court.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is a direct appeal in a criminal action wherein the defendant, Steven Ernest Dobney, pleaded guilty to three charges of felony — robbery in the first degree (K. S. A. 21-527), unlawful possession of a pistol after conviction of a felony (K. S. A. 21-2611), and assault with intent to kill (K. S. A. 21-431) — and was sentenced to the state penitentiary, where he is presently incarcerated.
The factual background, as disclosed by the record, is brief. Defendant was arrested on March 26, 1966. On March 29 he was charged with the foregoing felonies. Following the appointment of Mr. Robert M. Brown as his attorney, preliminary hearing was held, and the defendant was bound over to the district court for trial. An information was filed on June 3, 1966, Mr. Brown was again appointed in the district court, defendant pleaded guilty, and was sentenced to terms of not to exceed five years for unlawful possession of a pistol, not less than ten years nor more than twenty-one years for robbery in the first degree, and not to exceed ten years for assault with intent to kill, the latter two sentences to run concurrently but consecutive to the first sentence. Appeal has been duly perfected and present counsel appointed.
Numerous points have been raised, and we shall consider them in the order presented. Defendant first complains he was denied counsel at critical stages of the proceedings, and the lack thereof deprived him of equal protection under the fourteenth amendment of the federal constitution. In his brief, defendant intimates that sometime following his arrest he was interrogated and various incriminating statements were elicited from him. Such suggestion is completely unsupported by the record. Assuming, however, incriminating statements were obtained, they were never offered or used against him. He chose to enter a plea of guilty instead of stand trial. Therefore, whether or not such statements would have been admissible had they been offered in evidence at a trial, is entirely irrelevant. (Allen v. State, 199 Kan. 147, 427 P. 2d 598; Baier v. State, 197 Kan. 602, 419 P. 2d 865; Smith v. State, 196 Kan. 438, 411 P. 2d 663; McCall v. State, 196 Kan. 411, 411 P. 2d 647; Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. denied 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.) Moreover, defendant overlooks the significance of his voluntary pleas of guilty to the crimes charged. We have repeatedly held that an accused’s voluntary plea of guilty in a criminal case is a confession of guilt of the crime charged and every fact alleged therein, and that legally it is the most formal and binding confession possible for him to make. (Allen v. State, supra, and cases therein cited.)
Defendant also argues that although he desired counsel, none was afforded him because of his indigency, and thus, he was denied legal advice and investigative help vital to his defense “while the facts were still fresh.” The record fails to disclose that defendant ever requested and was denied counsel because of his indigency or any other reason. Furthermore, during the period following arrest, and prior to the appointment of counsel at preliminary hearing, there is no showing that any critical proceedings transpired or that the defendant’s rights were prejudiced in any way by the lack of counsel. At most, defendant merely speculates something more favorable might have developed had he had an attorney. (See State v. Zimmer, 198 Kan. 479, 426 P. 2d 267.) From what has been said, defendant’s constitutional rights were in no way violated by the lack of counsel.
Defendant’s next contention that he was prejudiced because of the delay in his being taken before an examining magistrate is likewise without merit. The record fails to disclose the date of arrest, but we are told that it was on Saturday, March 26, 1966. Charges were filed on Tuesday, March 29, and on the same day the defendant was taken before the magistrate. The reason for the delay is not apparent, except that the arrest occurred on the weekend. In what way defendant was prejudiced by the delay is not shown. Even if the time interval be considered excessive, unless the delay in some way deprived the defendent of a fair trial, it did not in and of itself constitute a denial of due process. (Cooper v. State, 196 Kan. 421, 411 P. 2d 652; McFarland v. State, 196 Kan. 417, 411 P. 2d 658.) The rules of McNabb v. United States, 318 U. S. 332, 87 L. Ed. 819, 63 S. Ct. 608, and Mallory v. United States, 354 U. S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356, recognized in the federal courts, and cited by the defendant here, have no application to a state criminal proceeding. (Cooper v. State, supra; State v. Stubbs, 195 Kan. 396, 407 P. 2d 215.) Defendant asks us to reconsider our holdings in Cooper and Stubbs, but this we decline to do. Defendant further contends that because of the delay he was denied protection under the sixth amendment, which is binding on the states through the fourteenth amendment, citing Klopfer v. North Carolina, 386 U. S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988. That case involved the accused’s right to a speedy trial and is inapplicable to a situation where, as here, error is alleged because of undue delay in taking an accused before an examining magistrate.
Defendant next complains his rights under the fourteenth amendment were violated by the failure of court and counsel to advise him of his right to appeal and seek a stay of execution pending appeal. This contention lacks substance, for the defendant is now exercising in the present proceeding his right to appeal. Incident to the right of a defendant to appeal a criminal conviction is the privilege accorded him to seek a stay of execution and release from custody pending appeal (K. S. A. 62-1724[b]). We have said the right to appeal is a privilege, a matter of grace, which the state can extend or withhold as it deems fit, or which may be granted on such terms and conditions as it} sees fit. It is not a right guaranteed by the constitution of this state or the United States, nor is it a requisite of due process of law guaranteed by the fourteenth amendment; hence, failure to advise a defendant of his right to appeal in no way deprives him of any constitutional right. (Allen v. State, supra; Ware v. State, 198 Kan. 523, 426 P. 2d 78.) A stay of execution being a part of the appeal right itself likewise involves no constitutional right. It logically follows that even if the court or counsel failed to advise the defendant of the statutory privilege of a stay of execution pending appeal, there was no violation of any constitutional requirement. It must be assumed that counsel fully advised him of all his rights, for we have no evidence to the contrary except defendant’s bald assertion.
Defendant finally contends he was inadequately represented by counsel. On the record before us, the assertion is absurd. From the preliminary hearing stage throughout the remainder of the proceedings, including this appeal, defendant has been represented by capable and experienced counsel. The record shows nothing other than that he has been fairly, adequately and effectively represented at every stage of the case.
We have carefully examined the entire record and find no error. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order denying the appellant’s motion to vacate and set aside a sentence in a proceeding brought under the provisions of K. S. A. 60-1507.
The appellant, John Alfred Wagner, will hereafter referred to as petitioner.
Petitioner was charged by information on two counts of violating G. S. 1949, 21-906, now K. S. A. 21-906. On September 18, 1963, petitioner appeared before the trial court with an attorney of his own choice for arraignment. Count one of the information was dismissed on motion of the state and petitioner waived arraignment and entered a plea of guilty to count two. He was sentenced to confinement in the Kansas State Penitentiary for a term not to exceed seven years.
On March 24, 1965, petitioner filed his motion, the subject of this appeal, in the district court. He failed to give the names of any witnesses or to designate any evidence by which the allegations of his motion might be supported. On May 12, 1965, the district court entered findings that the motion, files and records conclusively showed the petitioner was entitled to no relief and denied the motion.
At the request of petitioner present counsel was appointed and this appeal was perfected.
In an oral argument on appeal it was disclosed by petitioner’s counsel that the delay in presenting the appeal to this court stems from voluminous correspondence between petitioner and counsel and uncertainty as to the manner in which petitioner desired his appeal to be presented to this court.
Petitioner sets out seventeen items in his statement of points. We have examined the statement and believe the points may be fairly consolidated into one controlling issue, i. e., was the trial court warranted in accepting petitioner’s plea of guilty under the facts and circumstances?
The following pertinent facts are gleaned from the record. Petitioner was represented by competent, experienced counsel of his own choice throughout all of the proceedings, including his preliminary hearing. It is to be noted that a dismissal of count one of the information was secured on arraignment. The transcript of the sentencing proceedings reveals the presiding judge carefully questioned petitioner before his plea of guilty was accepted. Petitioner stated that he had ample opportunity to confer fully with his counsel relative to the charges, that he understood the charges, and that he knew of no legal reason why sentence and judgment should not be pronounced.
Upon questioning by the court petitioner’s counsel also approved the plea of guilty. The petitioner was forty-three years of age at the time of sentencing; and there is no indication whatsoever in the record but that petitioner voluntarily and understandingly entered his plea of guilty. Petitioner neither filed a motion to withdraw his plea nor appealed from the sentence and conviction.
Such being the case we find no merit in this appeal. It has long been the settled law of this jurisdiction that a defendant’s plea of guilty is a confession of guilt of the crime charged and of every fact alleged in the charge. It is the most formal and binding confession that can be made. (State v. Nichols, 167 Kan. 565, 207 P. 2d 469; State v. Dexter, 191 Kan. 577, 382 P. 2d 462, cert. den. 375 U. S. 948, 11 L. Ed. 2d 278, 84 S. Ct. 359; McCall v. State, 196 Kan. 411, 411 P. 2d 647.)
The record fully supports the conclusion of the trial court and the judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal concerns two actions to recover crop damage and to enjoin maintenance of a diversion ditch which the plaintiff Joe Burnison alleges was unlawfully constructed by defendants to change the natural flow of water from defendants’ premises.
The defendants, W. D. Fry and Norma Fry, are husband and wife. Their farm is on higher ground than plaintiff’s farm. Surface water from rainfall on defendants’ farm flows to a diversion terrace and is carried into a watercourse. The water follows this watercourse across a road separating the two farms. After crossing the road the water flows onto plaintiff’s farm. During periods of heavy rainfall a seven acre field owned by plaintiff is inundated by surface water.
Litigation between these parties began in 1961. Plaintiff brought an action against the defendant, W. D. Fry, to enjoin maintenance of the diversion ditch. After a complete trial of the action an injunction was denied. No appeal was taken from the judgment entered on August 11, 1961. We will refer to these proceedings as the injunction action.
In 1963 plaintiff brought an action against the defendants, W. D. Fry and Norma Fry, his wife. This action was brought to recover for crop damage occurring in 1961 and in 1962 caused by flooding a seven acre field belonging to plaintiff. We will refer to these proceedings as the 1963 action.
In 1964 plaintiff brought an action against the defendants to recover for crop damage occurring in 1963 and in 1964 caused by flooding plaintiff’s seven acre field. A second count in the petition sought equitable relief by way of injunction against the wrongful diversion of surface water. We will refer to these proceedings as the 1964 action.
After the issues were joined the 1963 action and the 1964 action were consolidated for trial by agreement of all parties. Defendants’ motion for summary judgment was denied. During pre-trial proceedings the trial court determined that one issue raised by plaintiff in both the 1963 and 1964 actions, i. e., the unlawful construction and maintenance of a diversion ditch on defendants’ premises, was finally adjudicated in the prior injunction action. The lower court held plaintiff was limited in the 1963 and 1964 actions to proof of damages arising by reason of changes in the ditch occurring since the judgment was entered in the injunction action.
This appeal was taken pursuant to K. S. A. 60-2102 (b) which provides for interlocutory appeals under special requirements enumerated in the statute, including permission to be granted by this court. Permission was granted by this court to take the appeal.
A single question is determinative. Does the judgment rendered in 1961 estop the plaintiff from recovering for damage to crops alleged to have been caused by the construction and maintenance of the ditch, except for those changes occurring in the ditch since the date of the judgment in the injunction action? In other words does the prior judgment bar the plaintiff from relitigating the issue of the tortious or unlawful construction of the diversion terrace in 1960.
In the prior injunction action the plaintiff alleged the defendant, W. D. Fry, had wrongfully constructed a diversion ditch upon defendant’s land which diverted and increased the natural flow of surface water onto plaintiff’s land, inundating a seven acre field and rendering it unsuitable for cultivation or use. Defendant answered, admitted ownership of the land, alleged the diversion terrace was properly constructed under the direction of the United States Soil Conservation Service, stated the terrace emptied into a natural watercourse on defendant’s land and the natural flow of surface water was not changed or diverted onto plaintiff’s land.
After a complete trial of the case the court, on request of counsel, made findings of fact. The facts upon which the injunction was denied included these which we have taken from the findings and judgment entered by the court in that action. The plaintiff is the owner of a certain described farm. The defendant, W. D. Fry, is the owner of an adjacent farm. Both farms are identified by legal description. The defendant’s farm is on higher ground and the natural flow of surface water from defendant’s land crosses a road in a natural watercourse and proceeds onto plaintiff’s land. During periods of heavy rainfall a seven acre tract of cultivated land owned by plaintiff is flooded. The defendant’s land is all in a soil conservation district. The employees of the district supervised the installation of a dam and a diversion ditch on defendant’s farm in the spring of 1960. At this time the natural watercourse which previously carried the surface water to the road separating the two farms was cleaned out, widened a little and deepened some. The terrace and earthwork were properly constructed on defendant’s property in accordance with the provisions of G. S. 1959 Supp. 2-1902 (K. S. A. 2-1902 D) to carry out the legislative intent expressed in this statute.
This statute is generally referred to as the “Soil Conservation District Law.” The purpose declared in the act is to conserve soil resources and control and prevent soil erosion and reduce flood damages by providing engineering operations such as construction of terraces, detention dams and channel improvements.
The court in its findings adopted the testimony of an engineer for the soil conservation district who testified that by reason of low gradient in the terrace or ditch on defendant’s property the water would flow slower and more evenly from defendant’s land through the natural watercourse onto plaintiff’s land and would carry less silt and sediment. The earthwork would thus materially benefit plaintiff.
The court found no damage was caused to the plaintiff by the defendant’s earthwork. The injunction prayed for was denied.
In tire 1963 and 1964 actions plaintiff alleges the same earthwork and diversion ditch was unlawfully constructed by defendants and states:
“That since (about) November 3, 1960, no major changes have been mechanically constructed in said ditch to plaintiff's knowledge.”
He charges that by reason of construction and maintenance of the diversion ditch and the silt accumulation in defendants’ pond, surface water has been diverted and discharged upon plaintiff’s land with increased force and volume and has damaged the crops on his seven acre field. The prayer is for actual and punitive damages and for an injunction to require defendants to cease the diversion of surface water.
The defendants answer and state the diversion terrace was lawfully and properly constructed and deny that the flow of surface water has been diverted or increased by the terrace which ends 500 feet from the public road separating the two farms. They further state no changes have occurred in the ditch since the date of the prior judgment which held the construction was lawfully and properly completed and that plaintiff is barred by the prior judgment.
In support of his position on appeal plaintiff contends that the judgment in the injunction action in 1961 does not bar him from pursuing claims for subsequent damage to crops caused by the unlawful construction of the diversion ditch and earthwork in 1960. He cites the case of Hofstetter v. Myers Construction, Inc., 170 Kan. 464, 227 P. 2d 115, and argues the four conditions necessary to render an action res judicata do not appear since the damage to his crops in 1961 and subsequent years was not claimed in the previous action and since the defendant, Norma Fry, was not a party in the 1961 injunction action.
In Hofstetter both actions were pending in court at the same time. This court on appeal noted that eight additional parties joined the Hofstetters in bringing the injunction action. The action was to enjoin the defendant, who operated a portable asphalt plant, from causing obnoxious odors and soot and dust to be spread over the neighborhood. In denying the defense of res judicata the court indicated the manner in which the plant was first operated could have been corrected by the time the injunction action was tried. In such case the defendant would remain liable for damage occurring prior thereto. The damage action was not barred. The case is clearly distinguishable upon the facts.
Plaintiff cites Henderson v. Talbott, 175 Kan. 615, 266 P. 2d 273, and other similar cases. In these cases the original unlawful act has been established. The tortious act is considered to be a continuing act giving rise to new and successive causes of action. These cases are not controlling under the present facts. In the present case no unlawful or tortious act was established in the injunction action. Quite the reverse is true, for the court found the earthwork was properly constructed so as to benefit the plaintiff.
Plaintiff .points out that the action in 1961 was brought to obtain an injunction while the 1963 and 1964 actions are successive causes of action to recover recurring damages to crops planted subsequent to the judgment in the injunction action. Therefore, he reasons, the actions are not identical and judgment in the injunction action does not bar the subsequent damage actions.
A cause of action on which a judgment is entered arises from the wrong done and not from the character of the relief sought or from the measure of compensation. This was pointed out in Foster v. Humburg, 180 Kan. 64, 67, 299 P. 2d 46, as follows:
“While allegations of damages are essential in a petition, they do not constitute the ‘cause of action.’ The ‘cause of action’ is the wrong done, not the measure of compensation for it, or the character of relief sought. A ‘cause of action’ arises from a manifestation of a right or violation of an obligation or duty. (Citing cases.) Damage is not the cause of action. It is merely a part of the remedy which the law allows for the injury resulting from a breach or wrong. The ‘right of action’ is merely the right to pursue a remedy, and the ‘cause of action’ is the concurrence of the facts giving rise to an enforceable claim. . . .”
(See, also, Shirk v. Shirk, 186 Kan. 32, 36, 348 P. 2d 840; Ablah v. Eyman, 188 Kan. 665, 680, 365 P. 2d 181; Peterson v. Bachar, 193 Kan. 161, 167, 392 P. 2d 853.)
Plaintiff brought the injunction action based upon a wrong done by defendant. The wrong charged against defendant was the unlawful construction of earthwork and a diversion terrace which changed and diverted the flow of surface water onto plaintiff’s seven acre field. The issue raised was fully adjudicated in the action as shown by the trial court’s findings. The judgment determined that the earthwork and diversion terrace was lawfully and properly constructed in such manner as not to divert or in crease the flow of surface water onto plaintiff’s seven acre field. Although plaintiff is entitled to pursue a remedy for any changes caused by defendants’ acts since that time, he is not permitted to relitigate the issues finally adjudicated in the 1961 injunction action.
Plaintiff questions the finality of this adjudication because Norma Fry was not made a party defendant in the former action. She was a tenant in common with her husband and owned a half interest in the property on which the earthwork and diversion terrace were constructed.
However, this oversight was due to plaintiff’s omission. In Hubert v. Board of Public Utilities, 162 Kan. 205, 209, 174 P. 2d 1017, this court quoted and adopted the statement appearing in 39 Am. Jur. Parties § 25 which reads:
“. . . The burden of procuring the presence of all such indispensable parties is on the plaintiff. . . .” (p. 884.)
In Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, 428 P. 2d 804, the court defines proper, necessary and indispensable parties as follows:
“Generally speaking, proper parties are those without whom the cause might proceed but whose presence will allow a judgment more clearly to settle the controversy among all the parties. (Pfannestiel v. Central Kansas Power Co., 186 Kan. 628, 352 P. 2d 51.) Necessary parties are those who must be included in an action either as plaintiffs or defendants unless there is a valid excuse for their nonjoinder. Indispensable parties are those who must be included in an action before it may properly go forward. The latter two concepts are alike in the respect that both terms denote parties who should be joined in the action although the degree of obligation represented by the word “should” varies (see James’ Civil Procedure, §§ 9.14-9.15).”
This court has held that a tenant in common may maintain an action in tort against a third party stranger to recover the damages to cotenancy realty caused by the acts of the third party and although a fellow tenant in common is a proper party to such an action he is not necessarily an indispensable party to such an action. (See Pfannenstiel v. Central Kansas Power Co., 186 Kan. 628, 633, 352 P. 2d 51, and cases cited therein.)
Norma Fry was a tenant in common of the farm. The tortious acts upon which plaintiff sought to obtain the injunction were charged against W. D. Fry only. She was a proper party to such an action since she owned a half interest in the land involved, but she was not an indispensable party to such action and the burden of procuring her presence rested on the plaintiff. In the injunction action plaintiff alleged that W. D. Fry was the owner of this property and that Fry constructed the diversion terrace. The defendant, W. D. Fry, answered admitting ownership and the court found him to be the owner.
A rule of estoppel has been applied in similar cases to prevent such a belated change of position by plaintiff from affecting the finality of a prior judgment. (Woods v. Duval, 151 Kan. 472, 99 P. 2d 804; Anderson v. Stockwell, 130 Kan. 103, 285 Pac. 526; Underwood v. Greenlees, 131 Kan. 308, 291 Pac. 777.)
Plaintiff did litigate the issue of wrongful construction of the earthwork with his neighbor. We realize the final judgment was not to his liking. However, he may not relitigate the same issue even though he failed to make the wife a party to the first action. The court determined ownership of the land for the purposes of that action upon the allegations and admissions of the parties. The co-owner who was omitted makes no complaint against the determination. She acquiesces in the prior judgment by taking a stance beside her husband in defense of the present actions. The plaintiff cannot raise the question of lack of proper parties in the prior action. He is estopped to question the binding effect of the former judgment. (See Schermerhorn v. Mahaffie, 34 Kan. 108, 113, 8 Pac. 199 and Woods v. Duval, supra.)
The trial court properly held the relief now claimed by plaintiff cannot be based upon tortious acts of the defendants in the original construction of the earthwork. This issue was finally determined between the parties in the injunction action. Plaintiff should be limited to those damages, if any, which may have occurred by reason of wrongful acts and omissions of the defendants subsequent to the date of the prior judgment.
The order of the trial court is affirmed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was a personal injury action brought by an employee under K. S. A. 44-504, and which was defended under a claim that the Workmen s Compensation Act provided the exclusive remedy.
Certain introductory facts which are not in dispute will first be stated.
The defendant, The Great Lakes Pipe Line Company, was engaged in installing de-aerators ■ and pumps in connection with its existing facilities at its Kansas City terminal. The work was being done by the defendant’s own employees and was well within its authorized trade or business.
The plaintiff, Fred D. Bendure, was employed by the Builders Steel Company and came on the premises of the defendant to deliver two steel I-beams. The beams were 36 feet in length and weighed 612 pounds each. The beams were loaded on a flat bed truck with places on each side and at the rear end to insert stakes to keep the load from rolling off. The front end of the truck had a cowling running along the front end which flanged around the front sides about six or eight inches. The I-beams were touching the cowling in front and were lying parallel with the truck near the center of the bed.
As this entire controversy revolves around the unloading of the truck and the evidence from which the facts must be derived is conflicting, and in some instances inconclusive and subject to inferences, the testimony on this part of the controversy will be presented in detail.
The plaintiff testified that when he made the delivery to the defendant as far as he knew he was not to unload it. A very few times he had given help as a matter of courtesy. He did not know whether the price of the stéel included unloading. When he arrived at the defendant’s terminal he stopped at the main office for directions as to where they wanted him to unload it. He was directed to an open space south of the plant. He was met by Mr. Ploth, terminal superintendent, who informed him they would not use an A frame but would roll the I-beams off. Plaintiff told Ploth that if they were going to roll the beams off they would have to pry the beams back from the front of the truck so they would not catch the cowling and tear it off. There was some conversation with Mr. Ploth about taking the stakes out.
“. . . When he started pulling out the stakes, he started throwing them over the beams. It was so much handier to put them back under the beams, so I made mention of that fact so he laid them back on the bed, and shoved them under the beams. I told him we would leave the two1 back ones. The two in the back were left on. They were left as a safety precaution. If these two stakes were left in that position, I knew that the beams couldn’t be taken off.”
Plaintiff got a crow bar, got on the truck and started prying the beams back from the front to clear the cowling. Mr. Ploth directed a Mr. Copp to get a bar and help him. The plaintiff was at the front of the truck astride the I-beams prying when one of the beams fell off the rear side. He stated:
“My right leg was caught between the cowling and the beam. One beam moved only. I looked back because I couldn’t imagine any way possible for the beam to be on the ground. I saw no stakes and the beam on the ground. I saw two or three men. They were at the back of the truck. The stakes weren’t there. When I went astraddle of those beams, I did not expect anyone to remove those stakes from the rear. . . .
“At no time did Mr. Ploth give me any orders out there except parking the truck. I was not under orders from my company to take orders from the Great Lakes Plant Superintendent. I had never seen him before. . . .
“I have testified that near the middle of this truck this beam was 2K feet from the edge. The west end of the beam was up against the cowling. The end of the beam on the cross bar to the east was three feet or more from the north edge of the truck. In order for the beam to have moved clear off and to come off, it had to travel at least three feet on the far cross member. I had no notice that there was anything wrong. The first notice I had was when it had me pinned to the cowl. The beam had me nailed to the cowl.
“I did not ask for Mr. Copp to assist me. I heard nobody ask for Mr. Copp. I didn’t know who Mr. Copp was. I have never had a beam ever come off of my truck as in this case.
“Q. After you had pulled and pried tire beam back from the cowling, what was your intention; what did you intend to do, after you got it pried back from the cowling?
“A. fust stay right there until it was unloaded.
“It was the idea of the Great Lakes’ superintendent to roll it off the truck.”
Mr. Arthur James Danforth, shipping clerk for Builders Steel Company, testified:
“Q. Now, do you, as a shipping clerk, have any control over the practices that are used in shipping, Mr. Danforth — in delivery — Tm sorry — the loading and unloading techniques that are used?
“A. Well, only insofar as we request the cooperation of our drivers, not putting themselves necessarily in someone else’s employ or anything, but who cooperate basically to the extent of trying to get our trucks back serviceable and on the road again for us.”
Mr. Merlin Hargrove, plant superintendent for Builders Steel Company, testified that the responsibility for unloading I-beams or steel products had never been discussed with the defendant. They ask their drivers to cooperate with their customers in such a manner the material would be unloaded to their satisfaction. The driver is subject to the customer’s request for certain procedures such as to which door, at what point on the dock or at what part of the building the material would be unloaded. If an I-beam were up against hood or cowling of one of these big trucks, it should be pried back and rolled to the edge, if room, before the stakes are removed. He stated:
“It is our practice and suggestion in this kind of case involving these heavy beams that hoisting devices be used if they are available. Definitely. That is a safer way of doing it. It’s not only safer to the individuals who are working in the area, but safer to our driver and the equipment. It is not unusual for the driver to ask and suggest to our customers that they use such a device if it is available.”
The following is an interrogatory to appellee and answer:
“Did any employee of defendant start to unload two I-beams delivered by plaintiff to defendant’s premises at 401 East Donovan Road, Kansas City, Kansas, on September 24, .1963, before plaintiff’s injury?
“Answer: I. R. Ploth removed two stakes from the side of the truck involved before being told to stop by Fred D. Bendure, the plaintiff.”
Mr. William T. Bruce, president of Builders Steel Company, testified:
“Q. Does your price structure include unloading?
“A. Yes and no; our price structure includes delivery to the job.
“Q. All right; does your customary procedure require that a man like Fred Bendure place him under the control and direction of a man like Mr. Ploth, who happens to be the terminal superintendent—
“A. Fred Bendure is one of our employees, and is under our jurisdiction, as far as I am concerned.
“. . . It is one of Fred Bendure’s duties as my employee to protect our equipment. We would expect him to take care of it and to see that no damage is done to it. He has generally complied with that request. It isn’t part of the important duties on his part to protect the equipment. We wouldn’t expect him to abuse any of our equipment.”
Mr. Irvin R. Ploth, superintendent of the Great Lakes Pipe Line terminal, testified that the plaintiff made no inquiry as to how Ploth was going to unload. About all he told the plaintiff was where to bring the truck and how they were going to unload. He knows of no written agreement between the two companies as to unloading. The plaintiff did not stop him from taking the stakes out.
Plaintiff brought this common-law action for his personal injuries. No issue is raised as to the pleadings. The case was tried to a jury and at the close of all the evidence the trial court sustained a motion for a directed verdict. The court stated reasons for its conclusion in part as follows:
“. . . The motion for directed verdict is hereby sustained on this basis, the Court having found from the evidence specifically that all the requirements set forth in K. S. A. 44-503, A, B, and D have been met; . . .
“The combination of these factors is conclusive proof to the Court that at the time and place and circumstances surrounding the injury, the plaintiff was a special and statutory employee of the Great Lakes Pipe Line Company, and that the injury sustained in such unloading process meets all the tests previously announced by our Supreme Court in determining what constitutes a special employee.”
The plaintiff has appealed.
The appellant contends that, at most, the evidence is conflicting as to the facts which constitute a special or statutory employee and the determination was therefore one for the jury.
The appellee contends that (1) “The work being performed by the independent contractor and the injured employee was necessarily inherent in and an integral part of appellee’s trade or business.” and (2) “The work being performed by the independent contractor and the injured employee was such as would ordinarily have been done by the employees of the appellee.” either of which would create the relationship of special or statutory employer and employee bringing the employee under the Workmen’s Compensation Act which affords an exclusive remedy.
We would first suggest that a distinction should be made between the relationship of statutory employer and employee under the provisions of K. S. A. 44-503, and the relationship of special employer and employee (loaned or borrowed employee) which existed under the common law. Where the appropriate facts are present the employment may bring the employee under the Workmen’s Compen sation Act as a statutory employee or the facts may eliminate the relationship of statutory employer and employee and bring the workman under the act as a special employee. Different facts are necessary to create the two different relationships.
Under the common law an employee of a contractor or subcontractor was not considered an employee of the principal and such an employee, in the absence of a special statute, was not entitled to compensation from the principal or employer of the contractor or subcontractor under the original Workmen’s Compensation Act. Various statutes, such as K. S. A. 44-503, have been enacted in the several states for the purpose of making the principal liable to such employees. This required a special inclusion statute and such employees have been designated as statutory employees to distinguish them from regular employees recognized under the common law. In order that a principal employer be liable for injuries to the employees of another, the relationship prescribed by the special statute must exist. (99 C. J. S., Workmen’s Compensation, §107a, e, p. 362, 369; Larson’s Workmen’s Compensation Law, 1966, Volume 1A, §§49.00, 49.11.)
A special employee is a creature of the common law. The term refers to a lent employee. Once the relationship of lent employee or special employee and employer is established, the special employee becomes the servant of the special employer and assumes the position under the Workmen’s Compensation Act as a regular employee and no special inclusion statute is necessary to give a special employee coverage. (99 C. J. S., Workmen’s Compensation, §47a, p.241.)
We will first consider whether the facts before us created the relationship of statutory employer and employee.
Most of our cases interpreting K. S. A. 44-503 are addressed to the question: When is the contracted work part of the regular trade or business of the statutory employer? In this case we have the additional question: Did the facts as related create a contractual relationship such as anticipated by the provisions of the statute? The statute provides insofar as material here:
“(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; . . .
“(d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management.”
Although the statute is to be liberally construed it is not every relationship that constitutes a contract such as is intended by the act. It is clear that the term “contractor” was not used in its all-inclusive sense. So construed, the statute would lead to absurd and inconsistent results. There is hardly a human relationship that does not involve some form of tacit consent or agreement. The modus operandi between the appellee and Builders Steel Company, reflected from the foregoing statement of facts, proves a relationship of buyer and seller and clearly negatives a contractual relationship between them. If the statute were to be applied to an ordinary sale of merchandise commerce and business dealings would be seriously hampered.
We are forced to conclude that a sale and delivery of merchandise is not such a contractual relationship as is anticipated by K. S. A. 44-503. This court has not had occasion to pass on the specific question but the general rule would appear to be as stated. In 99 C. J. S., Workmens Compensation, §107, p. 369, we find the following statement in connection with the statutory relationship:
“The compensation act does not apply where the transaction between the immediate employer and the person sought to be held liable as his employer is- that of purchase and sale, . . .”
The rule stated is subject to the exception that when the contract to sell is accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party is a contractor within the meaning of the statute. The rule is also subject to the exception that the transaction must not be a mere device or subterfuge to avoid liability under the Workmen’s Compensation Act. The employee does not contend that either exception is an issue here. Different facts and different provisions of statutes render cases from other states of little value as precedents, however, those wishing to research the specific question further will find somewhat similar situations and a comparable ruling in Wells Coal & Dock Co. v. Industrial Commission, 224 Wis. 546, 272 N. W. 480; Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116; Brothers v. Dierks Lumber & Coal Co., 217 Ark. 632, 232 S. W. 2d 646; Richardson v. Jones, La. App., 163 So. 2d 119; Wysinger v. Godfrey, La. App., 86 So. 2d 597; Hooks v. Wayne County Road Comrs., 345 Mich. 384, 76 N. W. 2d 9, and Heider v. Stoughton, 150 Neb. 741, 35 N. W. 2d 814.
In support of its contention that the relationship of statutory employer and employee existed, the appellee relies on Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P. 2d 239; Hataway v. Proctor & Gamble Manufacturing Co., 195 Kan. 335, 405 P. 2d 350, and particularly Hanna v. CRA, Inc., 196 Kan. 156, 409 P. 2d 786, where this court stated at page 159:
“This court has laid down two rather definite tests by which to determine whether the work covered by a contract is part of the principal’s trade or business, i. e., (1) is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
“If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employees sole remedy against the principal is under the Workmen’s Compensation Act.”
It need only be noted that in these cases the original employer went on the premises of the principal under contract to do substantial construction work. Under such a situation a contractual relationship under the statute was not in question. It remained only to be determined whether the work being done was part of the principal’s trade or business. Under the facts in the case under consideration, the transaction being that of a purchase and sale and not such a contractual relationship as is anticipated by the statute, the rule does not apply.
It remains to be determined whether the relationship of special employer and employee (loaned or borrowed employee) was created as a matter of law under the facts in this case.
It is impossible to lay down a rule by which the status of a person performing a service for another can be definitely fixed as an employee, as ordinarily no single feature of the relation is determinative, but all must be considered together and each case must depend on its own peculiar facts. A number of factors have evidentiary value, the most important of which is the degree of control retained by the person for whom the work is being done. In order to determine the actual relationship of the parties under any employment, the courts will look to all the circumstances involved in the particular case. (Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 722, 78 P. 2d 868.)
The test for determining when a relationship of special employer and employee is created is set forth in Larsons Workmen’s Compensation Law, 1966, Volume 1A, §48.00, p. 710, as follows:
“When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
“(a) The employee has made a contract of hire, express or implied, with the special employer;
“(b) The work being done is essentially that of the special employer; and
“(c) The special employer has the right to control the details of the work.
“When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation.”
The test of special employment, as above set forth, bringing a workman within the provisions of the Workmen’s Compensation Act, appears to have been generally approved. (See 99 C. J. S., Workmen’s Compensation, §47, p. 241.) This court has applied the test in Mendel v. Fort Scott Hydraulic Cement Co., supra, and also in Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P. 2d 737 and Gilliland v. Kansas Soya Products Co., 189 Kan. 446, 370 P. 2d 78, although not making a careful distinction between statutory and special employees in the last two cases. We present the following cases for those wishing to extend their research into decisions of other states: Wall v. Penn Lumber & Mill Works, 171 Pa. Superior 512, 90 A. 2d 273; Ridgeway v. Industrial Acc. Com., 130 C. A. 2d 841, 279 P. 2d 1005; National Auto. Ins. Co. v. Ind. Acc. Com., 23 C. 2d 215, 143 P. 2d 481; Silberman v. Ind. Acc. Com., 21 C. 2d 609, 134 P. 2d 228; Texas Employers’ Insurance Association v. Baker, Ct. of Civ. App., Tex., 278 S. W. 2d 419; Jones v. George F. Getty Oil Co., 92 F. 2d 255; Shamburg v. Shamburg, 153 Neb. 495, 45 N. W. 2d 446, and Crepps v. Industrial Com., 402 Ill. 606, 85 N. E. 2d 5.
It would serve no useful purpose to attempt to extend in detail by specific examples the three requirements set out above as essential to the creation of a special employment relationship. The three tests have been detailed and broadened in the treatise by Larson and also by Corpus Juris Secundum in their citations given above.
Appellee relies on Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494. In the Bright case the appellant was a truck driver of the Advance Furnace Company which sold three loads of sheet metal to Bragg, doing business as Bragg Furnace Company. One of appellant’s duties was loading, hauling and unloading sheet metal for his employer. Appellant was injured on appellee’s premises while helping to unload and stack, in designated places, the sheet metal under the appellee’s direction and supervision. Insofar as the opinion laid down and followed the rule for determining the actual relationship and liability of the parties as special employer and employee, the opinion and the decision are approved. However, insofar as the opinion concludes that—
“Appellee was engaged in the business of ‘Sheet metal repair and installation of heating units.’ For the prosecution thereof he undertook to obtain the sheet metal in question. He contracted with intervenor to furnish it. In the process of complying with the agreement one of intervenor’s workmen was injured. We think such workman would have been entitled to receive compensation from appellee the same as though he had been immediately employed by appellee. (G. S. 1949, 44-503.)” (p. 410. Emphasis supplied.)
it is disapproved for the reason the relationship between the seller and the buyer was that of vendor and vendee, not that of principal and contractor as the term is to be understood in K. S. A. 44-503.
It will suffice to say without again reviewing the testimony heretofore presented that the evidence is conflicting on whether appellant was a loaned employee and on the three questions of (1) whether the employee had made a contract, expressed or implied, with the-special employer; (2) whether the work being done was essentially that of the special employer, and (3) whether the special employer had the right to control the ^details of the work. Factual questions remained for the determination of the trier of facts and it was error for the trial court to sustain a motion for directed verdict as a matter of law.
This court has consistently followed the rule that in reviewing the propriety of an order sustaining a motion for a directed verdict this court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury. (Casement v. Gearhart, 189 Kan. 442, 370 P. 2d 95; Albin v. Munsell, 189 Kan. 304, 369 P. 2d 323; Lackey v. Price, 190 Kan. 648, 378 P. 2d 19; Johnston v. Gann, 193 Kan. 102, 391 P. 2d 1016, and Toole v. Johnson, 195 Kan. 88, 402 P. 2d 823.)
The judgment is reversed with instructions to grant a new trial.
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The opinion of the court was delivered by
Harman, C.:
Here we deal with the application of the review and modification statute (K. S. A. 44-528) to an award of workmen’s compensation for temporary disability where the period of such disability had expired prior to the time of its adjudication. The facts pertinent to the appeal are undisputed.
On November 20, 1963, the claimant filed her application for workmen’s compensation, alleging she had sustained a series of compensable injuries to her back during the period from February through June 3, 1963, as a result of stooping and twisting in the course of her employment with respondent.
The initial hearing on the application was held before the workmen’s compensation examiner on March 3, 1964. Liability was disputed by the respondent, the issues raised being:
“(1) -whether or not claimant sustained an accidental injury on the date alleged; (2) whether injury arose -out of and in the course of employment; (3) whether respondent had notice; (4) average wage; (5) the nature and extent of claimant’s disability; (6) the amount of compensation to be paid; (7) the amount of medical to be awarded.”
Claimant testified at this hearing. She contended she had a permanent partial disability as a result of her alleged injury. Further hearing was had on March 12, 1964, at which a neurosurgeon testified. On April 29, 1964, an orthopedic surgeon testified and the case was thereafter submitted to the examiner upon the testimony of these three.
On November 3, 1964, the examiner denied compensation, finding that claimant did not sustain an accidental injury and that any injury did not arise out of and in the course of employment. Upon review pursuant to K. S. A. 44-551 the workmen’s compensation director on December 7, 1964, affirmed the examiner’s denial of an award.
Claimant then appealed to the district court of Shawnee county, which court, third division, on April 9, 1965, reversed the director and found that claimant had suffered an accidental injury as a result of her twisting and turning in performing her duties on the bean machine for her employer. The court further found she suffered temporary total disability from July 16, 1963, until March 25, 1964, and awarded compensation for thirty-six weeks accordingly, to be paid in one lump sum, and it also entered an award for medical and hospital expense already incurred. Neither party appealed from this judgment.
Here it should be noted that as to ultimate duration of disability the district court’s award of compensation for the period July 16, 1963, to March 25, 1964, was manifestly based upon the testimony of the orthopedic surgeon. He testified he examined the claimant on March 25, 1964; despite a history of low back sprain he found no evidence of orthopedic pathology, no disc injury or nerve root irritation; a myelogram performed previously by another doctor was negative; the witness recommended no treatment and was unable to account for claimant’s numerous symptoms; in his opinion, as of March 25, 1964, the claimant could return to work.
Pursuant to the district court’s award the respondent and its insurance carrier promptly tendered to claimant their draft in lump sum payment of the thirty-six weeks’ compensation. Claimant refused this tender and on May 4, 1965, filed her application requesting the workmen’s compensation director to review and modify the district court’s award of April 9, 1965, pursuant to K. S. A. 44-528, on the ground the award was inadequate and that she had not received final payment under it.
Prior to any ruling on the application the parties by mutual agreement, and on behalf of claimant, took the deposition of another doctor in the form of a report on claimant’s physical condition subsequent to the district court’s award, which report tended to show an increased incapacity or disability.
The examiner and in turn the director, pursuant to respondent’s motion to dismiss, each ruled he had no jurisdiction to entertain the review application. Claimant thereupon appealed from the director’s order of dismissal to the district court of Shawnee county. That court, fourth division, in a carefully prepared memorandum opinion, held for the respondent, ruling neither the workmen’s compensation examiner nor director had jurisdiction to review and modify the district court award of compensation entered April 9, 1965. Claimant has appealed from that judgment.
The pertinent provisions of K. S. A. 44-528 are:
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the director upon good cause shown upon the application of either party and in connection with such review the director may appoint a physician or surgeon, or two physicians or surgeons to examine the workman and report to the director and the director shall hear all competent evidence offered and if he shall find that the award has been obtained by fraud or undue influence, or that the committee, or arbitrator, making the award acted without authority, or was guilty of serious misconduct, or that the award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the director may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to tire limitations hereinbefore provided in this act. . . .”
Claimant-appellant argues that having declined the tender of payment of the district court’s award of compensation she is entitled to show her condition has worsened; she contends the sole test or restriction laid down in the statute as to its application is whether or not final payment of any award has been accepted by the claimant. Appellant concedes, as she must, that our prior decisions interpreting this statute have been contrary to this theory.
The same statute, so far as applicable here, was considered in Gant v. Price, 135 Kan. 333, 10 P. 2d 1082. There the workmens compensation commissioner found the workman had been totally disabled for a number of weeks but had completely recovered before filing his application for compensation, and accordingly a lump sum payment was awarded. Upon appeal the district court sustained the commissioner’s finding and award. The employer tendered payment of the amount awarded. The claimant did not accept the tender. Instead he filed with the commissioner an application for review and modification of the award upon the ground it was inadequate and that his incapacity and disability had increased. Claimant contended because final payment of the award had not been made, under the language of the statute, he had a right to ask for such modification.
In rejecting this interpretation this court stated:
“We have concluded that the provision depended on hy appellee in R. S. 1931 Supp. 44-528, relates to an award that provides for payments on a disability that extends into the future. Here the commissioner of workmen’s compensation had found the facts to be that the disability of appellee had ceased before the first application was filed with the commissioner. This finding and award were appealed to the district court. The court approved the findings and award. When this was done the judgment of the district court took on all the attributes of finality that any case takes that is submitted to a district court for determination. The only remedy left is the appeal provided for to the supreme court.
“The reason for this is plain. When the commissioner of workmen’s compensation hears a case and makes a finding that extends into the future, he looks at an injured workman, hears the testimony of the doctors and finds what in his judgment will be the extent of his disabilities and how long the condition will last. The lawmakers knew this could not be determined with finality, so the provision for modification and review was written into the act. As far as the payments for the future are concerned this is a wise provision. The necessity for it does not exist, however, where the commission, and later the courts, are asked to look at a man and say what his condition is at the present time, and where this is done and a finding of fact is made not looking into the future at all, but establishing a present determinable fact. That is the work courts have been doing for many years. Our system of jurisprudence provides that inquiries of this kind must have finality.” (pp. 335, 336.)
The law applied in the case is summarized in the syllabus as follows:
“The provision in R. S. 1931 Supp. 44-528, for modification and review of the findings and award of the commissioner of workmen’s compensation, is intended to cover cases where the award of the commissioner is directed to the future and not to cases where the findings were of a past fact. [¶1.]
“Where the commissioner of workmen’s compensation has heard a case and has made a finding that disability had ceased before the case was filed before him and an award is made pursuant thereto, which finding and award are appealed to the district court where they are approved, the order of the district court approving the finding and award is final and the workman may not later be heard on an application to review and modify the findings and award for the commissioner.” (If 2.)
Although different factually, in Calonder v. Freeto Construction Co., 155 Kan. 497, 126 P. 2d 209, this court referred to the Gant decision, stating:
“The case is authority for the proposition that the review statute is intended to cover cases in which the award of the commissioner is directed to the future, and that the review statute is not applicable to cases where the finding pertains to a past fact, namely, that disability had ceased prior to the fifing of the application before' the commissioner.
“It has been held there can be no review before the commissioner to determine the extent of future disability after it has been determined with finality on appeal to the district court that all disability had ceased prior to the date of the commissioner’s award.” (p. 499.)
The court also commented:
“While the review statute [44-528] provides for a review of ‘any award’ it might at first glance appear the commissioner is thereby authorized to exercise appellate review over the decision of a district court, but clearly that is not true.” (p. 500.)
In Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P. 2d 639, the workmen’s compensation commissioner made an award of temporary total disability for a period of twenty-five compensable weeks, which period of time had expired prior to the time the award was made. The amount of the award being past due it was ordered paid in one lump sum. No appeal was taken from the award. The workman accepted payment of all but the last week’s compensation and then filed an application for review and modification of the award, contending she was still disabled. Relying on Gant and other cited cases this court pointed out the award showed on its face that incapacity had ended at the time the award was made and, no appeal having been taken, the award became final. Therefore the statute permitting review and modification had no application.
The same interpretation was expressed in Meredith v. Shawver Graham, Inc., 171 Kan. 513, 233 P. 2d 750, when this court stated:
“. . . a review may be had when the award determines disability con tinues into the future but not when the award determines all disability had ended prior to the award and all compensation therefor was ordered paid.” (p. 518.)
Here the award sought to be modified determined that all disability had ended prior to the award as well as prior to the time of the submission of the case for adjudication. Appellant had alleged and sought to prove permanent disability. The award determined the question of permanent disability and of any disability beyond March 25, 1964, adversely to appellant. To that extent then, at that point she had lost her suit. The award did not look into the future and, under the cases cited, it left nothing to review.
If appellant’s argument that such statutory construction leaves her without remedy has first-blush appearance of merit, it must be recalled the law did provide a remedy. This was by way of further appeal from the award of the district court. That such appeal could not have succeeded under the record made — because the adverse finding was solidly buttressed by evidence — rests on the principle that the duration of disability remains always a question of fact to be determined by the trier of the fact (Larrick v. Hercules Powder Co., supra; Hardin v. Beck Mining Co., 166 Kan. 95, 199 P. 2d 186). However, futility of appeal furnishes no basis for review and modification.
We are satisfied with the rationale of the cited cases construing K. S. A. 44-528 and in view of the fact the legislature has not seen fit to change that statute in any way by subsequent enactments it can only be assumed such interpretation has met with legislative approval. We, therefore, hold the district court’s award of temporary total disability had become final and binding on the parties, that the period of disability of the appellant had ended before the award was made, and the award was not subject to review and modification.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The petitioner, Earvin Sylvester Wright, was convicted on two charges of second degree forgery. On appeal to this court the conviction was upheld. Our decision is reported in State v. Wright, 194 Kan. 271, 398 P. 2d 339.
In the present action, initiated under K. S. A. 60-1507, the petitioner seeks to set aside and vacate his conviction upon various grounds. On receipt of petitioner’s motion to set the conviction aside, the trial court appointed counsel and ordered an evidentiary hearing held. At the hearing the petitioner was present and testified. After the hearing was concluded, a memorandum was filed in which the trial court carefully considered the points raised by petitioner, entered findings of fact and conclusions of law, and denied the petitioner’s motion.
The present appeal stems from the overruling of Wright’s motion. Six points are raised in the brief filed by petitioner’s appointed counsel.
1. Failure to provide counsel at the preliminary hearing.
2. Denial of compulsory process for obtaining defense witnesses.
3. Failure of officers to advise petitioner of the date of his preliminary examination.
4. Intimidation on the part of the examining magistrate preventing petitioner from testifying at his preliminary hearing.
5. Failure of counsel to present issues concerning the legality of pretrial proceedings, either to the trial court or on appeal.
6. Failure on the part of counsel to demand a psychiatric examination or present the issue of petitioner’s sanity.
Turning to the first point raised, this court has held, in cases too numerous to mention, that a defendant accused of felony has no constitutional right to appointed counsel at his preliminary examination in the absence of prejudice to his substantial rights. Among our most recent decisions to this effect are Addington v. State, 198 Kan. 228, 424 P. 2d 871; State v. Washington, 198 Kan. 275, 424 P. 2d 478; Broum v. State, 198 Kan. 345, 424 P. 2d 576. We adhere to the position we have taken in the foregoing and many other cases.
The petitioner’s complaint that he was denied compulsory process to obtain the attendance of his witnesses is completely refuted by the record. It is a mendacious assertion; the kind of irresponsible charge which far too often befouls the corridors of justice. At the healing on his 1507 motion, Wright testified that no one had denied him the right to subpoena witnesses. The evidence at that hearing also established conclusively that petitioner’s court appointed counsel not only tried to get in touch with defense witnesses by phone and by letter, but made a special trip to Kansas City in a futile effort to locate alibi witnesses whose names were furnished him by his client.
At the same hearing, the petitioner testified he was not informed of the time his preliminary hearing would be held. This testimony is completely uncorroborated. Rule No. 121 (g) provides that uncorroborated statements of a movant (petitioner) are insufficient to sustain his burden of proof (194 Kan. xxvm). We also are entitled to assume that the petitioner was properly kept informed, either by the magistrate or by the county attorney, concerning the date of his preliminary examination, for it is presumed that public officers will rightfully perform their duties. (Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P. 2d 51; Lyerla v. Lyerla, 195 Kan. 259, 264, 403 P. 2d 989.)
During the preliminary examination, at which the petitioner was not represented, the state produced the testimony of several witnesses. When the state concluded, the examining magistrate advised Mr. Wright as follows:
“This is a Preliminary Hearing and not a trial. You have a right to testify at this time but you are not required to do so. If you do testify, anything you say may be used against you in District Court in case you are bound over to the District Court for trial. Bearing that in mind, do you care to testify?”
The above advice constitutes the basis for the petitioner’s claim of judicial intimidation which prevented him from testifying in his own behalf. We believe this contention lacks merit. In the first place the magistrate correctly stated the law, as it has been expounded by this court. In State v. Sorter, 52 Kan. 531, 34 Pac. 1036, it was held:
“Where a defendant freely offers himself as a witness, and voluntarily gives testimony in a preliminary examination or trial, such testimony may be introduced and read against him in the final trial of the cause.” (Syl. 6.)
See, also, State v. Miller, 35 Kan. 328, 10 Pac. 865.
Rut even though it could be said that such advice was incorrectly or improvidently given, the petitioner waived whatever error may have occurred. The journal entry in the criminal case recites that upon arraignment the petitioner, who appeared with appointed counsel, was asked whether he had been represented by counsel at the preliminary hearing. On being advised that Mr. Wright was not so represented, the court inquired whether he desired a further preliminary hearing to which Wright replied that he desired to waive further preliminary hearing.
The record does not reflect that Wright has ever questioned the accuracy of the journal entry, and the trial court found that he had waived additional preliminary examination. In view of his express waiver the petitioner is now in no position to complain of any irregularity which may have inhered in the preliminary hearing. (Ramsey v. Hand, 183 Kan. 307, 327 P. 2d 1080; State v. Holmes, 191 Kan. 126, 379 P. 2d 304.)
A considerable part of the petitioner’s attack on his sentence, (and we note he filed a pro se brief before the trial court), is directed against his court appointed counsel. Unfortunately, the practice of accusing appointed counsel of incompetency is becoming a favorite sport among persons convicted of crime. In many instances accusations of this character are based on the flimsiest of grounds.
In the present case, one of the chief complaints pertaining to the services rendered by Mr. Charles D. Knapp, a lawyer of high standing in his profession, appears to be his failure to present issues going to the regularity of the preliminary hearing. In particular, the petitioner throughout his testimony pointed to lack of counsel at the hearing, to continuances of the hearing and to his right to present witnesses at the hearing.
It should be recognized by now that under ordinary Kansas practice the preliminary examination does not constitute a critical stage in a criminal proceeding. (State v. Richardson, 194 Kan. 471, 399 P. 2d 799; State v. Washington, supra.) In State v. Daegele, 193 Kan. 314, 393 P. 2d 978, we said that the purpose of a preliminary examination for a defendant charged with felony is to ascertain whether an offense has been committed and to determine whether there is probable cause for charging the defendant with its commission. (See, also, White v. Crouse, 193 Kan. 674, 396 P. 2d 333, cert. den., 381 U. S. 954, 14 L. Ed. 2d 727, 85 S. Ct. 1814; Cooper v. State, 196 Kan. 421, 411 P. 2d 652.) Moreover, as we have said earlier in this opinion, this court has held many times that no constitutional right of an accused is violated by failure to provide him counsel at the preliminary examination stage, absent a showing of prejudice to his substantial rights.
Mr. Knapp testified that he was aware of the decisions of this court concerning the appointment of counsel at the preliminary examination phase of a criminal proceeding and that he had been of the opinion it would be unavailing to raise the pretrial errors urged by Wright. Such an opinion on his part would not brand Knapp as incompetent. Reputable lawyers often harbor different legal opinions on a given subject. In the present case we believe no respectable lawyer would say that Knapp was irresponsible in the view he took of the petitioner’s claims of pretrial error.
The petitioner, in his pro se brief, argues that the preliminary examination became a critical stage when he became afraid to testify in his own defense. This argument is unfounded. Under the circumstances shown in this case the petitioner lost no vital defense by failing to testify, nor did the state gain an advantage therefrom. Wright was identified by two witnesses at the preliminary hearing as the man who passed the forged check, and whatever evidence the petitioner may have wished to present in denial of their testi mony would not have constituted grounds for his release. Knapp cannot justly be charged with incompetence for failing to agree with this theory advanced by his client.
As a matter of plain fact, the record in this case shows that Knapp represented this petitioner faithfully and well. He secured, through the county attorney, a transcript of the preliminary examination. He filed a plea of alibi. He diligently sought to contact alibi witnesses who allegedly lived in Kansas City and even secured a continuance to give him additional time to locate such witnesses. He represented the petitioner throughout the trial, on his motion for new trial and on appeal from the conviction.
This court has previously said, in Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den., 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581, that the adequacy of services rendered by an attorney to his client is to be measured by the sum total of his representation. The total quality of Mr. Knapp’s representation may perhaps be gauged best by the fact that the petitioner requested his reappointment to assist in this 1507 proceeding. Since Knapp was expected to be a witness at the evidentiary hearing, the trial court denied such request and selected Mr. Reuben E. Weatherford, Jr., also a reputable member of the bar, to assist Wright both at the hearing and on appeal.
Finally, the petitioner maintains that his sentence should be vacated because his counsel did not demand a psychiatric examination or present the issue of sanity. By this contention we presume the petitioner means that no issue was raised as to his sanity, either as of the time of trial, or as of the date the offenses were committed. We think the record reflects no discredit on Mr. Knapp in this respect. The petitioner conceded, in his testimony, that he had never discussed the matter of a psychiatric examination with his counsel prior to trial. Furthermore, we find nothing in the record to challenge the attention, either of defense counsel or of the trial court, to any derangement of the petitioner’s mental faculties.
It is only when the trial court entertains real doubt as to the defendant’s mental capacity that a commission must be appointed pursuant to the provisions of K. S. A. 62-1531. (Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197; State v. English, 198 Kan. 196, 424 P. 2d 601.) Even where a commission is appointed, the issue before that body is whether the defendant is insane and unable to comprehend his position and make his defense, not whether psychiatric treatment is to be recommended. (Kiser v. State, 196 Kan. 736, 739, 413 P. 2d 1002.)
In view of the petitioner’s complete pretrial silence on the matter of psychiatric examination, and in further view of the complete absence from the record of any indication that the petitioner was insane, it would be unfair to charge his counsel with dereliction of duty for failure to demand a mental examination or to present insanity as an issue in the trial. Even the best of lawyers are apt to be ill-trained in the subtle art of mind reading. We might also add that addiction to crime is no indication of insanity, per se, even though a predilection toward lawlessness may be a deviation from the social norm.
One last note: In his pro se brief, the petitioner argues that one of the previous convictions used in imposing sentence under the Habitual Criminal Act was for an offense dissimilar from forgery, and hence was inadmissible to enhance punishment. This suggestion has no merit. There is no requirement that a prior conviction relied on in imposing an increased sentence under K. S. A. 21-107a shall be for a similar or like offense, and we cannot read such a condition into the statute.
No error has been made to appear and the judgment of the tidal court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The defendant, Margaret Phinis, was convicted of unlawfully having a pistol in her possession and control after being previously convicted of a felony contrary to K. S. A. 21-2611. The trial was before a jury on November 21, 1966. She was sentenced to the Kansas State Industrial Farm for Women. Appointed counsel has perfected this direct appeal from the conviction.
The two specifications of error urged are of a nature requiring a statement of the facts surrounding the charge filed. The facts developed at the trial are not in any great dispute except as to ownership of the pistol. Defendant was not charged with owning a pistol.
The defendant had previously served time at the Kansas State Industrial Farm for Women. She was charged in Labette county with first degree murder in 1953. The charge was reduced to manslaughter in the fourth degree and she entered a plea of guilty. She served her required time and was discharged in 1955. The journal entry of this prior conviction was introduced in evidence on testimony by the clerk of the district court of Labette county, Kansas.
The present charge against Margaret Phinis originated in the following manner. On September 4, 1966, the sheriff of Labette county, Kansas, went to a service station in Parsons in response to a call. He talked with Eddy Hill who had been injured. The sheriff took Hill to a medical center for treatment. The exact nature of Hill’s injury was not certain but it appeared to be a gunshot wound.
The sheriff and a patrolman went to Lakin Cabins in Parsons to investigate further. They arrived at cabin six, were admitted to the cabin and they talked with the four persons present. Cabin six was a three room efficiency cabin rented and occupied by a Mr. Vance and his housekeeper, the defendant herein. The front room was used by Mr. Vance as his bedroom. The middle room was used as a kitchen and contained a sofa and other furniture. The room in the rear was used by the defendant as her personal living and sleeping quarters.
In addition to Mr. Vance and the defendant, Mr. Wright and Mr. Tatum were present. As a result of investigation by the officers and in response to general questioning the following investigatory facts were developed. The parties had gathered there on the special occasion of Mr. Wright’s seventy-fifth birthday. The defendant had taken a few drinks that day in the company of her friends. Eddy Hill, a mutual acquaintance of Mr. Vance and the defendant, had arrived at the apartment without invitation. He had been drinking. Both Mr. Vance and the defendant made repeated requests for him to leave but the requests were ignored. The defendant got a .38 caliber revolver from a bedside table in her sleeping quarters and fired a shot into the floor to scare Eddy Hill out of the cabin. The bullet entered the floor in the kitchen, ricocheted into the front room and fell on a utility table. Eddy Hill fell to the floor and shouted, “I’m shot, I’m shot.” He later left the cabin. The gun was not aimed at him and the bullet did not hit him. At the time of his arrival he was wearing a shoulder bandage to cover some prior injury. Mr. Tatum took the gun away from the defendant after the shot was fired. Mr. Tatum kept the gun under his belt until just before the officers arrived. He then placed it under a pillow on the sofa in the kitchen. In response to questions Mr. Tatum advised the sheriff of the location of the gun and the sheriff took the gun into custody. The sheriff asked all four persons present who owned the gun. Mr. Wright and Mr. Tatum said they did not know. Mr. Vance stated it was not his gun and he did not know the gun was in the cabin.
The defendant and Mr. Tatum were then taken to the police station. Mr. Wright was not required to go because he had but one leg and was in a wheel chair. Mr. Vance also was confined to a wheel chair and he remained at home.
Mr.. Tatum was questioned at the police station and released. The defendant was first advised of her constitutional rights and then questioned by the sheriff and the patrolman. No written statement was taken from the defendant. She was questioned for thirty minutes before being charged and placed in jail. Counsel was later appointed.
At the trial the sheriff testified without objection that when he questioned the defendant at the cabin and at the police station he asked if she owned the gun and she said she did. He asked at the police station if she didn’t know it was a violation for her to have a gun in her possession and she said she knew it. She further told him she had been convicted of fourth degree manslaughter and had served her time. Her prior conviction was previously known to the sheriff.
The patrolman testified that before questioning defendant at the police station he filled out a standard form which explained “their constitutional rights to them.” Defendant told the officers she was willing to talk and signed the form. Thereafter the defendant told them she fired the shot into the floor to scare Mr. Hill but the gun went off accidentally. She told the officers Mr. Vance owned the gun and gave it to her. The defendant admitted she had been convicted of manslaughter in 1953 and served sixteen months. No contemporaneous objections were made to any of this testimony. Wright, Tatum and Vance testified at the trial.
At the close of the state’s evidence the defense moved for an “acquittal” for the reason that defendant was not fully advised of her constitutional rights at the time of the interrogation at the Lakin Cabins and at the police station. The motion was urged under the authority of Miranda v. Arizona, 384 U. S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602 (1966). It was considered and overruled by the trial court and is now specified as error. It was presented to the trial court on motion for hew trial and overruled. The trial of defendant occurred in November 1966 and the authority of Miranda should be applied herein so far as applicable. (See Johnson v. New Jersey, 384 U. S. 719, 16 L. ed. 2d 882, 86 S. Ct. 1772.)
The Miranda decision applies to both confessions and admissions. It sweeps away the bases of distinction. The court states:
“The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.” (p. 478.)
For the present we pass over any question of the sufficiency of the advice of rights given to the defendant as measured by the guidelines in Miranda.
Such guidelines are a measure for the courts to apply in determining whether a confession or statement is voluntary and admissible. They are not to be used as a trap or a snare for the prosecution in the trial of a defendant. The defendant made no objection to the testimony of the officers concerning the admissions when such testimony was given. The officers testified that she was advised of her constitutional rights and she voluntarily signed a waiver form thereby knowingly giving consent to the interrogation. On cross-examination the defense elicited certain discrepancies in the substance of the advice of rights given to the defendant. The trial court found the guidelines set forth in Miranda had been substantially complied with and admitted the testimony of the officers as to the defendant’s voluntary statements.
The defendant now contends she was insufficiently advised in that the officers did not specifically advise her that (1) she had a right to remain silent, (2) any statement she did make might be used as evidence against her, and (3) she had a right to the presence of an attorney during the interrogation, either retained or appointed.
The wording employed by the officers in advising her of these rights was not identical to that used by the United States Supreme Court in setting the guidelines in Miranda, but the import was the same. Even if the advice of rights was insufficient, admission into evidence of statements made by a defendant during custodial interrogation would not be grounds for an “acquittal.” A new trial would be the proper remedy. We believe defendant misinterprets the holding in Miranda and an examination of some of the history leading up to that case may be helpful.
Confessions and admissions of one charged with crime were a primary source of information upon which convictions were based under the common law. But a confession coerced through fear or induced by a promise of leniency cannot be considered reliable. Coerced confessions were identified in the 18th and 19th centuries with despotic governments. At that time evidence tending to prove coercion went to the credibility of the statement given and not to its admissibility in evidence. If a jury chose to convict a defendant they rejected all proof of coercion, accepted the statement and the appellate court did not disturb the verdict. (See Constitutional Limitations on Evidence in Criminal Cases by the Institute of Continuing Legal Education.)
However, our founding fathers built into our constitution certain safeguards in the 5th and 6th amendments bearing directly upon the rights of an accused. The 5th amendment provides that a person should not be compelled in any criminal case to be a witness against himself, or be deprived of life, liberty or property without due process of law. The 6th amendment provided the accused should have the assistance of counsel for his defense in all criminal prosecutions.
The Supreme Court of the United States as early as 1941 indicated that due process under the 5th amendment required the exclusion of evidence, whether true or false, if coerced from a suspect. (Lisenba v. California, 314 U. S. 219, 86 L. ed. 166, 62 S. Ct. 280.) However, constitutional protections for the citizen can be waived and waiver can be applied to the privilege against self-incrimination and the right to counsel as indicated in the opinions of the United States Supreme Court in both Miranda and Escobedo. (See, also, State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. ed. 2d 1030, 86 S. Ct. 1981; State v. Brown, 198 Kan. 473, 426 P. 2d 129; State v. Wilson, 198 Kan. 532, 426 P. 2d 288.) The issue in such case is the voluntary or involuntary nature of the statement sought to be introduced. This in turn determines the question of admissibility of the statement. There has been a gradual growth of the law in this area.
In Escobedo v. Illinois, 378 U. S. 478, 12 L. ed. 2d 977, 84 S. Ct. 1758 (1964), it was held if the right to counsel, as provided by the 6th amendment, was withheld from an accused “no statement elicited by the police dining the interrogation may be used against him at a criminal trial.” The withholding of counsel renders any statement thereafter made involuntary and inadmissible in evidence. There the court said:
“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 872 U. S. 342 [9 L. ed. 2d 804, 93 A. L. R. 2d 733], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (pp. 490, 491.)
In Miranda, supra, the court said:
“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can he no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (p. 444.)
Later in the opinion the court said:
. . Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. . . .” (p. 469.)
In the light of what was said in Miranda and Escobedo let us examine the facts of this case to determine the voluntary or involuntary nature of the admissions of defendant while the officers were making their investigation on the scene at Lakin Cabins in the presence of Mr. Vance, Mr. Wright, Mr. Tatum and the defendant. At that stage of the investigatory process the general inquiry was of a nature and for the purpose of determining if a crime had been committed upon the person of Eddy Hill who claimed he had been shot by someone in the cabin. The nature of the crime had not been determined and the inquiry into such had not focused on any particular suspect. Clearly the investigation was not the custodial interrogation referred to in Escobedo and Miranda. The surroundings or place of the investigation, the circumstances giving rise to the inquiry and the presence of friends of the defendant indicate it was an “on the scene” investigation. No advice of rights was required at that step of the investigation. The officers were not certain a crime had been committed by anyone.
In Miranda the court said:
“Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, 378 U. S. 478, 492, [12 L. ed. 2d 977, 986, 84 S. Ct. 1758]. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” (pp. 477, 478.)
Custodial interrogation as defined in Miranda did not begin until after Mr. Tatum and the defendant were taken to the police station. Mr. Tatum was questioned and released. The record then indicates the sheriff advised the defendant she was in custody for possession of a firearm, she had a legal right to say nothing, anything she said could be used against her in a court of law, and if she could not afford representation the state would represent (sic) her with a lawyer. Defendant argues that this advice as to rights was insuffi cient because under cross-examination the sheriff said he told her “if she did not have the money to hire representation to represent her in court the state would pay for representation for her.”
The patrolman from Parsons who was present throughout the investigation and interrogation testified that both the sheriff and he advised the defendant of her rights. On direct examination he testified as follows:
“Question: And what did she say in relation to this; I mean, what did you tell her, and what did she say back?
“Answer: I filled out the standard form we have that explains their constitutional rights to them, that they have the right to remain silent, they don’t have to answer any of our questions, they have a right to an attorney if they so wish, and it — also that if they cannot pay for an attorney, the state will furnish them an attorney.
“Question: Now what did she say to this then when you' asked her this?
“Answer: She said she was willing to talk to us, and she signed the statement, or the form rather.”
On cross-examination the patrolman testified he told her she had the right to an attorney right then and the state would furnish her one right then, even if she didn’t have the money. She signed the form and she did not ask for an attorney. The interrogation lasted not more than thirty minutes.
The form signed by the defendant was offered in evidence but excluded on objection made by the defense that it did not comply with the requirements of Miranda. The form signed by defendant is not included in the abstract or record and we cannot speculate as to its contents. It would appear that such form voluntarily signed by a defendant prior to interrogation would be admissible in evidence on the hearing to determine admissibility even though the guidelines set forth in Miranda were not fully or clearly enumerated in the written form.
The defendant has a right to request the judge to hear and determine the question of the admissibility of a confession out of the presence and hearing of the jury under K. S. A. 60-408. No such request was made by defendant. If such request is made the judge should hear and determine the matter outside the presence of the jury.
K. S. A. 60-408 reads:
“When the qualification of a person to be a witness, or the admissibility of evidence, . . . is in issue, the issue is to be determined by the judge, and he shall indicate to the parties which one has the burden of producing evidence and the burden of proof on such issue as implied by the section under which the question arises. The judge may hear and determine such matters out of the presence or hearing of the jury, except that on the admissibility of a confession of the accused in a criminal case, the judge, if requested, shall hear and determine the question out of the presence and hearing of the jury. But this section shall not be construed to limit the right of a party to introduce before the jury evidence relevant to weight or credibility.” (Emphasis added.)
Under the rationale of Jackson v. Denno, 378 U. S. 368, 12 L. ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205, it would appear advisable for the judge to excuse the jury when determining the admissibility of statements obtained by police officers during custodial interrogation of a defendant even though our statute appears to make this permissive except for confessions. In State v. Jones, 198 Kan. 30, 37, 422 P. 2d 888, this court previously said:
“. . . However, we enter our caveat that the better practice would dictate the district court hear the foundation evidence out of the presence and hearing of the jury and decide the issue whether the confession and/or statement of the defendant was his free and voluntary act.”
The oral testimony of the officers as to the rights advised established the sufficiency thereof under the Miranda guidelines even though the testimony of the two officers varied in certain details. There was sufficient evidence for the court to find defendant knowingly and intelligently waived the rights guaranteed to her under the 5th and 6th amendments and the statements made were voluntary and admissible.
We note the defendant took the witness stand in her own defense and testified to practically the same facts regarding possession and use of the pistol. She denied ownership of the gun, but testified the officers advised her of her constitutional rights, except for the right to counsel before being questioned.
Defendant does not point out in this appeal what particular statements elicited by the interrogating officers and introduced in evidence by the prosecution were involuntary and inadmissible. The failure to give proper advice of constitutional rights does not of itself require a reversal of a conviction unless evidence obtained thereby is used during a trial. It is the use of evidence obtained by or as a result of improper custodial interrogation that requires a reversal. Use of such evidence may require a new trial to be granted but it does not justify acquittal as urged by the defendant in her motion filed at the close of the state’s evidence.
We hold the trial court properly determined that any statements made by defendant at the cabin were elicited by the officers in the investigatory stage of the inquiry before the investigation had begun to focus on the defendant. We further hold that defendant was advised of her constitutional rights before the accusatory stage within the purview of Miranda. Any statements made by her in response to custodial interrogation were made after she was properly advised of her rights, were made voluntarily and knowingly and were properly admitted in evidence by the trial court.
Turning now to defendant’s second specification of error, it is contended that the evidence does not support a verdict of guilty on the issue of possession and control of a pistol.
K. S. A. 21-2611 reads:
“It shall be unlawful for any person who has previously been convicted in this state or elsewhere of committing or attempting to commit murder, manslaughter (except manslaughter arising out of the operation of an automobile), kidnaping, mayhem, forcible rape, assault to do great bodily harm, or any other felonious assault, robbery, burglary, extortion, grand larceny, receiving stolen property, aiding escape from prison or unlawfully possessing or distributing habit-forming narcotic drugs or cannabis sativa, commonly known as marihauna, to own a pistol, or to have or keep a pistol in his possession, or under his control. Any person violating this section shall be deemed guilty of a felony, . . .”
Defendant was not charged with ownership of a pistol. The alternative charge was made against her of having a pistol in her possession and control. The defendant does not object to the court’s instructions on possession and control. The jury was instructed that possession and control as used in the statute do not turn upon a physical handling of the prohibited weapon alone, and if the handling was an innocent one without the intent to have, possess or control the weapon such act was not prohibited by the statute.
Neither the defendant nor the state cite any case involving possession or control of a pistol after conviction of a felony in which the words “possess” or “control” as used in the statute have been defined. Our limited search has disclosed no Kansas case in which possession or control of a pistol was defined by this court.
Webster’s unabridged dictionary (third) defines possession as the act or condition of having in or taking into one’s control or holding at one’s disposal. Control is defined as the act or fact of controlling, the power or authority to guide or manage.
In People v. McKinney, 9 Cal. App. (2d) 523, 50 P. 2d 827, the statute prohibited possession of a “sap” or blackjack, the prohibited article was found in a suitcase under a bed in a room occupied jointly by defendant and another man, and the court said:
“Possession may be proved without proof of ownership, and although ownership implies the right to possess (Civ. Code, sec. 654), possession may exist entirely apart from ownership and ownership may be had of a thing not in the owner’s possession (Estate of Stanford, 126 Cal. 112 [54 Pac. 259, 58 Pac. 462, 45 L. R. A. 788]). Under the statute involved here, possession alone had to be proved, and Bouvier defines possession as ‘the detention or enjoyment nf a thing which a man holds or exercises by himself, or by another who keeps or exercises it in his name’. We feel that -under tire evidence presented here the question of defendant’s possession of the ‘sap’ was one of fact, properly presented to the jury for determination. Likewise as to the evidence generally, while it is true that the jury might have been justified in rendering a different verdict, the problem of determining questions of fact is left entirely to it (Pen. Code, sec. 1126), and with such determination this court may not interfere in the face of conflicting evidence.” (p. 524)
Although the statute in question (K. S. A. 21-2611) does not require intent to do a prohibited act as a prerequisite for its application, (State v. Wheeler, 195 Kan. 184, 186, 403 P. 2d 1015), yet tire statute contemplates proof of possession and control which is more than an innocent handling of the pistol without intent to have, possess or control the same.
The pistol in question was in a table drawer located in a room where defendant slept. The three room cabin was occupied by Mr. Vance and the defendant. Mr. Vance testified he did not own the pistol and had never seen it before. The two visitors present when the gun was found denied ownership. The defendant obtained the gun from the table drawer with the intent to scare the unwanted guest. The weapon fired into the floor while it was in her hand. Mr. Tatum then took the gun from her and later placed it under a pillow on the sofa. These facts and circumstances were placed in evidence. They appear sufficient to establish possession and control of the pistol and if they were believed by the jury they would support a verdict.
There was sufficient evidence introduced for the jury to determine the defendant had possession and control of the pistol within the meaning of K. S. A. 21-2611 and this court will not disturb the verdict. (State v. Donahue, 197 Kan. 317, 318, 416 P. 2d 287, and cases cited in Hatcher’s Kansas Digest, Supp., Criminal Law §438.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action to enjoin interference with plaintiff’s right of ingress and egress to land on which was located a building he was attempting to salvage. The result of the action was to have the title to the building determined.
Judgment was rendered against plaintiff and he has appealed.
At the outset we are confronted with appellees’ contention that the appeal should be dismissed because of the failure of appellant to take a procedural step within the time required by the rules for appellate review. This question will be determined before we proceed with a consideration of the appeal on the merits.
Appellees’ contention is well stated in its brief as follows:
“Under Rules of the Supreme Court, Sec. 60-2701, No. 6 (a), K. S. A., if, as in this case, no stenographic transcript of proceedings in the District Court is required, the designation of the contents of the record and also the statement of points [Rule No. 6 (d)J, ‘shall be served and filed in the District Court within ten (10) days from the filing of the notice of appeal.’ Appellees believe the record has not [now] been clarified and that the notice of appeal was served on June 15, 1966, and was filed on June 16, 1966; and that appellant’s designation of the record and statement of points were served on June 29, 1966, and were filed on June 30, 1966.
“Thus the record clearly shows that appellant did not comply with the requirements of this rule as more than ten (10) days elapsed between the time appellant filed and served his notice of appeal and the time appellant filed and served his designation of the record and his statement of points.” (Emphasis supplied.)
Disposition was made of the case on motion for summary judgment, hence no transcript was required for appeal. The two rules mentioned by appellees are Rule No. 6(a) which provides in part:
“If no stenographic transcript of proceedings in the district court is required to be prepared for an appeal, the designation of the contents of the record by the appellant shall be served and filed in the district court within ten (10) days from the filing of the notice of appeal. . . .”
and that part of Rule No. 6 (d) which reads in part:
“Each appellant shall serve and file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal. . . .”
The effect of the violation of the above rules and provisions 'for extension of time are to be found in Rule No. 6 (q) which reads:
“Whenever an appellant fails to complete any step necessary to the docketing of an appeal within the time prescribed by this Rule, he shall be deemed to have abandoned the appeal unless the time for such step shall be extended by the Judge of the court from which the appeal is taken for good cause and after reasonable notice to the other parties. Whenever an appellee fails to complete any step permitted to him within the time prescribed by this Rule, he shall be deemed to have waived his right to such step unless the time for the same shall be extended by the judge for good cause and after reasonable notice to the parties affected. The refusal of the judge to extend the time for the completion of any such steps shall be final, unless the Supreme Court shall upon immediate application, filed in accordance with Rule No. 7, find such refusal to have been an abuse of discretion and shall grant such extension as justice may require. . . .”
The rules mentioned are procedural in nature and not jurisdictional. The failure of the members of the bar to abide by the rules has given this court many troublesome moments. Because we do not think that a litigant should be denied the right of appeal on technical procedural grounds, we have simply ignored the rule where the time violation was not unreasonable. Having ignored the rule in the past in order that no litigant be denied the right to appeal, we are not inclined to make a strict application of the rule at this time and apply the only sanction available which is the dismissal of the appeal. We favor a liberal application of the rules of appellate procedure in order that a litigant not be denied his statutory right to appeal.
It should be suggested that in an attempt to make the application of the rules definite, Rule No. 6 (q) was amended to become effective January 1, 1967, by inserting the following:
“. . . No application for an extension of time in which to complete any step may be considered by the Judge of the court from which the appeal is taken unless such application is filed prior to the expiration of the period of time which is sought to be, extended. Such application may be heard and ruled upon before or after the expiration of such period of time. . . .” (See 197 Kan. lxiv.)
The addition did not prevent delay in filing but did make it more difficult to grant relief. This court has again amended the rule by changing the above provision to read as follows:
“. . . No application for an extension of time in which to complete any step may be considered by the Judge of the court from which the appeal is taken unless such application is filed prior to the expiration of the period of time which is sought to be extended, except in those cases where the failure to file such application before the time has expired is the result of excusable neglect. . . .” (Advance Sheet 199, No. 2 III.)
The amendment took effect July 1, 1967.
It is hoped that this amendment will make enforceable the rule for orderly appellate procedure by leaving the extension of time in the discretion of the trial judge who is familiar with the facts.
Approaching the merits of the controversy the facts do not appear to be in dispute.
Six miles north of Meade, Kansas, was an old silica processing plant which was owned by the Purex Corporation of Lakewood, California. The plant had not been used for many years.
On February 26, 1964, the plaintiff, Crouch, wrote to the Purex Corporation asking for their lowest price if they were interested in selling the building and its contents. The letter read in part:
"I would be interested in buying the old building that housed the plant and what other items that are still left. The items that are still left are: two crushers, furnace and the elevator is about all that is left.”
On March 4, 1964, Crouch received a letter of reply from Purex Corporation signed by Frank Knox which stated:
“We will sell this building and the equipment in and about that building for a total of $500.”
On March 19, 1964, Crouch wrote to Frank Knox, Purex Corporation, stating that the building was in “pretty bad condition” and asking “would you consider taking $300.00 for what is left?” This letter was not answered.
Later, on April 16, 1964, Crouch addressed another letter to Frank Knox, Purex Corporation, which read:
“I guess we will try the building for the amount you quoted, $500.
“I am sending you a personal check for this amount.
“It will be 2 or 3 weeks before we can get started; and I presume that we will be allowed all the time that we need to remove the material.”
It is conceded that this letter constituted a new offer and was not a continuation of the previous negotiations.
The record discloses the following information relative to the check mentioned in the above letter:
“Piqua, Kansas, April 16, 1964 No.-
The Piqua State Bank
Pay to the order of Frank Knox $500.00
Five Hundred and no/100 . . . Dollars
For Silica building and /s/ Phillip Crouch
Equipment in and about that building
Reverse Side:
Endorsement: Frank Knox
Pay to the order of Purex Corporation
Frank Knox
Pay to order of California Bank
Purex Corporation Ltd.
General Account
“The original check which is this exhibit, also has the customary numerous clearing house stamps on the back; among them:
April 23, 1964, Los Angeles Clearing House
April 27, 1964, Kansas City Clearing House
“The check was paid and cancelled by the Piqua Bank on April 29, 1964.”
On April 17, 1964, the Purex Corporation, through Frank Knox, wrote a letter to Martin Asche which stated:
“In answer to your inquiry about our property approximately six miles north of Meade, Kansas.
“We will sell for $500.00 the mine building and whatever machinery and equipment which remains in or about that building. A conditon of sale will require that the property purchased be removed from the premises within forty-five days.
“If this price is acceptable we will be pleased to receive a cashier’s check to cover.”
On April 24, 1964, Asche wrote a letter accepting the offer of April 17, which reads:
“We are enclosing a cashier’s check for $500 and the bill of sale of mine buildings with the agreement of option to purchase property.
“If the corporation has any other property and machinery in this area for sale, we would be pleased to deal with the corporation. It was our pleasure to deal with the Purex Corporation.”
On April 27, 1964, Frank Knox sent Crouch the following telegram:
“Your counter offer received April 23 is unacceptable. Your check mistakenly deposited by Purex will be recovered and returned to you or Purex check will be issued to you if your check cannot be located.”
There followed a letter dated May 16, 1964, which read:
“This is a follow-up to our telegram to you of April 27, advising you that your check which we received on April 23 was not acceptable, but that it had been deposited by mistake. Since we were unable to recover your check, we herewith enclose our check for $500 to reimburse you.
“We wish to explain, that the reason we could not accept your counter-offer of $500 for the mine building and machinery at Meade, Kansas, was because we had received and accepted an offer from another party prior to receipt of yours on April 23.”
In the meantime Martin Asche had entered into a contract to sell the building to Roy Marrs who owned the land surrounding the building site for $500 and had entered into a contract to sell the equipment to the C. & D. Used Truck Parts for $800.
Crouch commenced salvage of the building but Roy Marrs put a lock on the gate and would not allow Crouch to enter.
Crouch then brought an action to enjoin Marrs from interfering with his salvage operations. Marrs answered alleging that he had purchased the building from Asche and asked that Asche be made a third party defendant. Asche answered alleging he had purchased the building and equipment and had sold the building. He asked in the alternative that if Crouch be declared to be the owner that he be given judgment against Purex Corporation and demanded that it be made a party.
Purex Corporation’s answer alleged in substance — if there was a sale, it was induced by plaintiff’s representations and that Purex should be given $5,000 as damages from Crouch; that plaintiff knew that Asche was attempting to purchase the premises and plaintiff did not have “clean hands”; that it knew nothing of loss or damages to defendant Asche or Marrs; that it had sold the property to Asche on or about April 24, 1964, for $500; that it had guaranteed nothing nor was Purex required to furnish clear title to Asche or any of his assigns; that defendant Asche knew that plaintiff Crouch was attempting to purchase the premises and with quiet speed and secrecy so as to exclude plaintiff from obtaining such property and to obtain the property for himself acted surreptitiously and the defendant Asche by reason of “unclean hands” is barred; that defendant Asche knew plaintiff Crouch claimed ownership, and that Asche assumed risk in obtaining possession and his damages were his own.
The C. & D. Used Truck Parts intervened asking for the equipment it had purchased from Asche or the return of the $800 it had paid therefor with interest.
Following a pretrial conference, at which time the facts heretofore mentioned were stipulated, both the plaintiff Crouch and the Purex Corporation moved for summary judgment.
The trial court decreed that no contract came into existence between plaintiff Crouch and the Purex Corporation; that Asche had purchased the building and equipment and sold the building to Marrs. The title to the building was quieted in Marrs and plaintiff’s check from Purex returning the $500 was impounded for payment of costs. Marrs’ claim against plaintiff for removing part of the roof and siding from the building was reserved for future determination.
Appellant contends that on the basis of the prior negotiations the acceptance and endorsing appellant’s check by the Purex Corporation constituted the formation of a contract of sale.
The appellees contend that the appellant’s check was cashed through inadvertence or an error in office procedure and under such circumstances the cashing of the check did not constitute an acceptance of appellant’s offer. The difficulty with this contention is that there was no evidence of any character as to why the check was cashed. Neither would the error void the contract unless mutual mistake was pleaded. (Fontron v. Kruse, 103 Kan. 32, 172 Pac. 1007.)
The appellant suggests that the statement in the letter of May 6, 1964, to the effect “we have received and accepted an offer from another party prior to receipt of yours” was a “falsehood” as Asche’s acceptance was dated one day after appellant’s check was in the Los Angeles Clearing House. We need not speculate as to the binding effect of Purex Corporation’s offer to Asche. The question is whether the endorsing and depositing appellant’s check constituted an acceptance of his offer to buy? We think it did.
Appellants, while contending that the endorsing and depositing the check constituted an acceptance of the offer to purchase, states:
“Counsel for Crouch has made a most exhaustive search for absolute authority to the effect that when a person accepts and cashes the check of an offeror, the act of cashing constitutes an acceptance and creates a contract. In all sincerity, we have been unable to find the *bay horse’ case in any jurisdic tion — in all probability because it is such a basic and elementary premise that the acceptance of consideration would certainly give rise to a sale of goods and a bilateral contract, and such cases have never reached a reporting stage.”
The appellant is confusing the endorsing and depositing the check with acceptance of consideration or payment. The depositing of a check accompanying an offer to purchase is not necessarily acceptance of payment. The giving of a check which does not clear is no payment. (Harbert v. Fort Smith Canning Co., 134 Kan. 240, 5 P. 2d 849.)
The endorsing and depositing a check constitutes an acceptance of the offer to buy which accompanies it because the act itself indicates acceptance. An offer may be accepted by performing a specified act as well as by an affirmative answer. (Gunnison v. Evans, 136 Kan. 791, 18 P. 2d 191.) Also, where the offeree exercised dominion over the thing offered him — in this instance the check — such exercise constitutes an acceptance of the offer. The rule is well stated in Autographic Register Co. v. Philip Hano Co., 198 F. 2d 208, where it was said:
“. . . However, a finding of positive intention to accept an offer is not always necessary to the creation of a contract. It is elementary that an offer may be accepted by performing or refraining from performing a specified act as well as by an affirmative answer, and it is stated in Am. Law Inst., Restatement, Contracts, §72 (2) as the general rule that ‘Where the offeree exercises dominion over things which are offered to him, such exercise of dominion in the absence of other circumstances showing a contrary intention is an acceptance.’ See also 1 Williston, Contracts, (Rev. Ed.) §§91, 91D. . . .” (p. 212.)
The general rule is stated in Restatement of Contracts, §§72 and 17 Am. Jur. 2d, Contracts, §47, p. 387, and followed in Landon v. Northern Natural Gas Company, 338 F. 2d 17, where the United States Court of Appeals, Tenth Circuit, held that refund letters together with acceptance and endorsement of the gas payment checks constituted a refund contract.
We are forced to conclude that the acceptance and endorsement of the check accompanying the offer to purchase the property in controversy constituted an acceptance of the offer.
The judgment is reversed with instructions to the district court to quiet plaintiff’s title to the building and equipment in controversy against the defendants and enjoin them from interfering with plaintiff’s ingress and egress for the purpose of salvaging the property.
APPROVED By THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
This products liability action was instituted by the plaintiff, Felix A. Evangelist,' to recover damages for personal injuries sustained when a partially filled Pepsi-Cola bottle broke as he was recapping it with a device known as a “Handy Dandy.” Motions for a directed verdict on behalf of all the defendants were sustained at the close of plaintiff’s evidence, and he has appealed.
The defendants are Bellern Research Corporation, the manufacturer of the “Handy Dandy”; Brockway Glass Co., the manufacturer of the bottle; Conway Springs Bottling Co. and Pepsi-Cola Bottling Company of Wichita, the bottler and distributor of the bottled beverage. For convenience, the defendants will be referred to herein as Bellern, Brockway, Conway, and Pepsi Bottling, respectively.
The question for determination is whether or not plaintiff made out a case against each of the defendants for breach of an implied warranty.
The accident occurred in the early morning hours of April 21, 1962, when Evangelist, a surgeon in the Air Force, upon returning to his residence following a late night hospital call, uncapped a twelve-ounce, disposable bottle of Pepsi-Cola with the “Handy Dandy,” poured about half of the contents into a glass, and proceeded to recap the bottle. Gripping the bottle with his left hand, Evangelist took the “Handy Dandy,” with the bottle cap in it, and placed it on the top of the bottle. He pushed until the cap partially grasped the top of the bottle, then released a “red button” so that the “Handy Dandy” could be removed from the cap. Then, reversing the instrument in his right hand, and holding the bottle in the same way, he put the other end of the instrument down over the top of the bottle and, with his thumb on the top, pressed straight down. The bottle broke, and a long fragment of glass on the opposite side of the bottle entered the webbed space between the thumb and index finger of his left hand.
In describing the recapping process, Evangelist said he used the same procedure he had customarily followed on other occasions. He applied no more pressure than usual. He did not use a prying- or levering-type action, and attempted to get the “Handy Dandy” on straight. He had no intention of refilling the bottle, but was recapping it to retain the “fizz” in the contents remaining.
The bottle was from a six-pack carton purchased by plaintiff’s wife at the McConnell Air Force Base commissary. The “Handy Dandy” had been given to the plaintiff as a Christmas present in 1958. He received it in a plain box, gift wrapped, and could not recall that any instructions or directions came with it. Since that time plaintiff and his wife had used the device on numerous occasions to open and recap soft-drink bottles.
At oral argument plaintiff challenged the manner in which his theory of recovery was stated in the pretrial order. A brief review of the pleadings and order will focus the issue.
In his amended petition plaintiff alleged that Brockway, Conway and Pepsi Bottling, in manufacturing, handling, distributing and selling the bottle, impliedly warranted it was suitable for use as a container for Pepsi-Cola, safe for public use, and sold in such a manner as not to be inherently or imminently dangerous when being recapped by a purchaser from the public; that as a result of the breach of said warranty, the bottle broke and he was injured. In a second count plaintiff sought recovery on the theory of negligence under the doctrine of res ipsa loquitur. Prior to the final pretrial conference, however, plaintiff’s attorney notified the court and all defense counsel by letter he intended to rely solely on implied warranty against all defendants, including Bellern. The pretrial conference order stated that “Plaintiff elected to proceed against all defendants on the theory of implied warranty only in that the bottle was defectively manufactured and that the recapping device was likewise defectively manufactured and designed.” (Emphasis added.)
Plaintiff now claims this court should review the propriety of the' trial court’s ruling upon plaintiff’s theory as stated in his amended petition — that Brockway, Conway and Pepsi Bottling were liable for breach of implied warranty “in the manufacturing, handling, distributing and selling” of the bottle of Pepsi-Cola— rather than the restrictive language of the pretrial order — “the bottle was defectively manufactured.” We cannot agree.
The purpose and effect of-a pretrial order is clearly defined by the statutory and decisional law of this state. As stated in Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912:
“The pretrial conference provided for by K. S. A. 60-216 has become an important part of our procedural process designed, among other things, to acquaint each party in advance of trial with the respective factual contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at the trial, and enabling all parties to prepare in advance for trial. . . . Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K. S. A. 60-216). . . .” (p. 519.)
A review of the record fails to disclose that any attempt was made by the plaintiff to have the pretrial order modified, or that he objected to it in any way during trial. Plaintiff presented his evidence, defendants cross-examined his witnesses, and the trial court ruled on the respective motions for directed verdict with the idea that plaintiff’s theory of recovery was as stated in the pretrial order.
On review this court will affirm or reverse in accordance with the presence or lack of error shown by the record upon the theory adopted by the parties at trial. A litigant may not for the first time on appeal change the theory of his case from that on which it was presented to the trial court, nor may he present matters or issues which he did not bring to the attention of that court. (In re Bowlus, 197 Kan. 351, 416 P. 2d 711; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122; Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091, 80 A. L. R. 2d 166.) It follows that plaintiff is bound by the theory of recovery stated in the pretrial order, as more fully explained hereafter, and we will review the record in that light.
We first turn our attention to plaintiff’s case against defendants Brockway, Conway and Pepsi Bottling for the allegedly defective bottle.
Plaintiff’s theory of recovery against the defendants, as defined by the pretrial order, was that Brockway was liable for breach of im plied warranty in that the bottle was defectively manufactured, and that Conway and Pepsi Bottling were liable for breach of implied warranty in that they bottled and distributed a defectively manufactured bottle. The defendants concede that by reason of our decision in Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887, there exists an implied warranty in the manufacture, distribution and sale of a carbonated-beverage container, such as a Pepsi-Cola bottle. This view finds support in other jurisdictions where it has been held that there is an implied warranty that a beverage container is reasonably fit for the purpose for which it is intended (e. g., Renninger v. Foremost Dairies, Inc., 171 So. 2d 602 [Fla.], and Vassallo v. Sabatte Land Company, 27 Cal. Rptr. 814 [both milk bottle cases]. Also, see cases collected in 2 Hursh American Law of Products Liability, §16:1, et seq. and Anno. 81 A. L. R. 2d 257 §10). The burden of proving a breach of implied warranty was on the plaintiff, and that burden was not sustained simply by showing the bottle broke and he was thereby injured. (Patterson v. Weyer, Inc., 189 Kan. 501, 370 P. 2d 116; Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930.) In other words, it was incumbent upon plaintiff to establish the bottle was defectively manufactured.
In reviewing the correctness of an order sustaining a motion for directed verdict, this court, like the trial court in considering the motion, must resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought; and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. (McKinney v. Cochran, 197 Kan. 524, 419 P. 2d 931.) If the evidence presented on an issue is undisputed and is such that reasonable minds could not accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to take the issue from the jury. (Toole v. Johnson, 195 Kan. 88, 402 P. 2d 823.)
Keeping in mind the above-stated rules, let us examine plaintiff’s evidence introduced to show the bottle was defectively manufactured. Except for one small piece of glass, the pieces of the broken bottle were saved and subsequently examined by three experts called as witnesses by the plaintiff. Two of them testified that in their opinion there were no defects in the bottle. The third witness was Dr. Oscar G. Fryer, a college physics teacher, who had done work as a consultant in physics and also conducted tests and re search on bottles for a soft drink company. He-had examined the broken pieces and reconstructed the bottle in question, except for the one missing piece. In his opinion the origin' of the break was in the “reinforcing crown” about one-half inch from the top of the bottle, but he was unable to examine that immediate area for defects because that was the part of the bottle that was missing. He found four points of imperfection in the bottle — two scratches near the bottom of the bottle, and two roughened “dimples” or “bubbles” near the top. In describing these points, Dr. Fryer testified:
“Mr. Michaud: Describe the nature of those internal defects.
“A. Well, these two are just scratches, small scratches.
“Q. Did they materially weaken the bottle at those points?
“A. Yes, if you would hit them at that point on the opposite side.
“Q. Now, the two up at the top of the neck.
“A. The two at the top are a little different in nature. They are bubbles that are so near the inner surface that they broke out at the time of manufacture, and they became roughened. I don’t know how. It wouldn’t have happened in the manufacture. But due to the fact that they are roughened, they become the same hazard as you have in the other two because any time you roughen the inner surface of a bottle, break the smooth surface, you subject it to the same — the same hazard as you have the ones down here. That is, you hit them on the outside and it would weaken the bottle from a blow, not from the internal pressure, but from a blow; and all of these had about the same effect. They are all damaged because of the internal scratch or pit, a roughness.
“Q. . . . Did you say in this bottle two seeds with rough edges were found near the nucleus of the break?
“A. Yes, within a half-inch.
“Q. And you have just pointed them out?
“A. Yes.
“Q. Therefore, this bottle was materially weakened from these pits on the inside surface?
“A. Yes.
“Q'. What do you mean by that?
“A. I mean that if you hit the bottle exactly over that point, the blow that you’d strike it with would be much less than if the pits were not there. I’m not talking about the pits, I’m talking about the roughness there. The dimple doesn’t matter. It doesn’t matter if it’s smooth dimples; that is, the falling in of these bubbles in the manufacture. They will be entirely smooth, and it wouldn’t have any effect on the internal, but if it’s roughened and I hit it directly over it and it’s damaged to that extent. You hit a half-inch from it, you have nothing to do with it.”
Dr. Fryer conducted tests on several other bottles of like nature furnished to him and, using the “Handy Dandy,” was not able to break any of them. It was his opinion that it would be impossible to break a sound bottle with the device, and that the bottle used by the plaintiff was not sound. The witness testified the four imperfections, including those bubbles with roughened edges, had nothing to do with the breaking of the bottle. He further testified:
“Q. Now, Doctor, I believe you mentioned . . . these roughened edges of the bubbles that you found there had nothing to do with the breaking of this bottle, but they would not have happened in the manufacturing process. Is that correct?
“A. Well, die bubbles were put in there in the manufacturing process.
“Q. The roughened edges?
“A. No, I don’t think so.
“Q. So then in manufacturing of them if they were smooth, there would be no problem.
“A. That’s right.
“Q. And the roughened edges were not put there in the manufacturing process?
“A. Well, I don’t think so. I don’t know how it might be done.
“Q. It is your opinion that it was not?
“A. I don’t believe it was.” (Emphasis added.)
In rendering his final opinion as to whether or not the bottle was defective and when the defect, if any, occurred, Dr. Fryer testified:
“A. If he [plaintiff] pressed down, and I’m not questioning that at all, if he pressed down, then the bottle in this area must have had a very severe damage before he did that. Now, as to who put the damage in there, I have not the slightest idea. But the damage must be so great, the bottle must be so near apart that by pushing down here, he can finish the break. He can’t do it by a little scratch or a little pimple inside.
“Q. And you are saying that bottle was defective?
“A. Yes. But it’s either or. If he did push down here, then it must have been a very hard damaged bottle. If it’s not a damaged bottle, then he would have to push it down here. Now, you can have your choice.
“Q. In other words, one of two things in your opinion happened? Either the bottle was grossly defective and damaged right there, or he put a levering action on it and it had minor damage?
“A. That’s exactly right.
“Q. And one of those two things is the opinion you’re giving this Court and jury?
“A. These pairs have to go together.
“Q. And if it was grossly damaged and Dr. Evangelist and his wife who handled it did not drop it or bump it, then you can’t tell the Court and Jury where it happened?
“A. No, I can’t. I know it didn’t happen in the plant. Because a crowner would have done the same thing. It happened after it left the plant.
“Q. It could have happened in handling after it left the crowner, could it?
“A. Yes.
“Q. You don’t know where it happened?
“A. I know where it didn’t happen.
“Q. And it didn’t happen when Dr. Evangelist had it, if he says him and his wife didn’t bump it or drop it?
“A. I wouldn’t go that far.
“Q. If you assume they didn’t do that.
“A. I’m assuming they didn’t. I don’t know who did it. I don’t know anything about the circumstances. 1 know from, a physical standpoint it could not have happened in the plant. I don’t know where after that it might have happened, a minute before, a hour before, or days before.” (Emphasis added.)
From a careful review of Dr. Fryer’s testimony it is apparent that the “bubbles” in and of themselves would not weaken the bottle unless in some manner the edges thereof became roughened, in which case the bottle would become materially weakened if it received a direct blow over the roughened “bubble.” The most that can be said of his testimony is that in his opinion the bottle in question was not sound at the time plaintiff attempted to recap it, because either the bottle had been damaged by a blow directly over a “bubble” with roughened edges, and the application of pressure by the plaintiff with the “Handy Dandy” finished the break, or the bottle had a “bubble” with roughened edges, which in and of itself was a minor defect, and broke as a result of a levering-bending-type action being applied with the “Handy Dandy.” Under either conclusion, as expressed by the witness, the “bubble” must have had roughened edges in order to have constituted a defect, and in the opinion of the witness the edges could not have become roughened during the manufacturing or bottling processes. As opined by the witness, if the bottle received a heavy blow directly over a ‘bubble” with roughened edges, thereby seriously weakening the bottle, it would have occurred after the capping process at the bottling plant, because otherwise the bottle would have broken from the pressure applied by the “crowner.” This testimony effectively negatived plaintiff’s theory of recovery against the defendants as defined by the pretrial order, namely, that the bottle was defectively manufactured. In fact, the testimony went so far as to rule out any possibility that a defect occurred in the manufacturing process.
Despite the effect of Dr. Fryer’s testimony, plaintiff contends that once he showed the bottle was defective at the time it reached his hands, he had made out a case, and it then became incumbent upon the defendants to show where the defect occurred and who was responsible for it. In support of his argument plaintiff relies on a statement from Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P. 2d 633, that inasmuch as there was no question of the Coca-Cola’s being contaminated at the time it was sold and delivered to the plaintiff, the bottling company, to avoid liability under its warranty, must show who contaminated the beverage.
We think plaintiff’s reliance on what was said in the Simmons case is entirely misplaced. Nothing said therein can be construed to mean that the burden is other than on a plaintiff to establish the breach of an implied warranty. There, the plaintiff had established the breach merely by showing the bottle contained a packet of safety matches, while in this case, as we have pointed out, plaintiff’s evidence failed to establish a breach of the implied warranty relied on. The language in Simmons cannot be lifted from context but must be confined to the issue under consideration by the court — whether or not the defendant bottler of a beverage for immediate human consumption may show that if there was contamination it was caused by the action of a third party and thus relieve itself of liability.
Only recently we had occasion to point out that irrespective of the theory of recovery — negligence or implied warranty — a prerequisite to recovery against a manufacturer for a defective product is that the plaintiff must show the product was defective at the time it left the manufacturer’s control. (Jacobson v. Ford Motor Co., 199 Kan. 64, 427 P. 2d 621.) The rule is well stated in Gardner v. Coca-Cola Bottling Co., 267 Minn. 505, 127 N. W. 2d 557:
“Before liability can result from a breach of an implied warranty there must be proof from which an inference is permissible that the product was defective. In Prosser, Torts (2 ed.) §84, p. 509, we find the following:
. . The existence of the warranty of course does not eliminate the necessity of proof that the product was defective when it left the defendant’s hands; . . .’” (p. 510)
Also, see Anno. 81 A. L. R. 2d 259. Thus, it may be said as a general rule that there must be evidence from which it may reasonably be inferred that the defect existed at the time the product left the possession or control of the party sought to be held liable.
From what has been said, it follows that plaintiff failed to prove the bottle was defectively manufactured. Hence, he did not make out a submissible case against the defendants Rrockway, Conway and Pepsi Bottling on his theory that said defendants manufactured, distributed and sold a defectively manufactured bottle. Accordingly, the trial court properly sustained defendants’ motions for directed verdict.
We now turn our attention to the liability of Bellern, the manufacturer of the “Handy Dandy.”, Plaintiff sought recovery against said defendant on the theory of breach of implied warranty in that the recapping device was defectively manufactured and designed. .The record is barren of evidence showing the instrument was defectively manufactured, so we need only concern ourselves with defective design. It is not entirely clear on what basis the trial court sustained the motion for directed verdict on behalf of Bellern. Irrespective of that fact, we think the propriety of the ruling should be considered from the standpoint of whether or not as a matter of law plaintiff may predicate liability against the defendant for breach of an implied warranty of manufacturer-design.
Plaintiff has cited us to no authority holding that there is an implied warranty against defective design on the part of a manufacturer of a simple household device such as the “Handy Dandy,” and our limited research has revealed none. We gather from plaintiff’s brief and argument he is asking us to recognize and apply an implied warranty to this device upon the same public policy considerations that were used in cases involving food, drink, beverage containers, hair preparations, and recently, animal vaccine. Conversely, defendant suggests that were we to extend an implied warranty against defective design to a product of this type, and thus further carve out an exception to the common-law rule of caveat emptor, it would virtually amount to the wholesale lifting of the privity requirement in this state on all products.
The status of our law on implied warranty was thoroughly explored in Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P. 2d 82, and the reader is directed to that opinion for a review of our decisions. The cases therein cited and discussed illustrate that where an implied warranty was found, it was imposed by operation of law on the basis of public policy, and consequently, privity of contract was not esssential for recovery against the manufacturer. These exceptions to the common-law rule have been born on a case-by-case basis as the need for protection to the consuming public demanded, and with each exception the privity requirement has fallen.
The nature of the product involved in each case has been, as it should be, of manifest importance in determining whether or not warranty protection should be extended as a matter of public policy. The lack of similarity of the “Handy Dandy” and the products in volved in those cases reviewed in Chandler is readily apparent. The product here is quite unlike an automobile tire which, from its very nature, could be imminently dangerous to life and limb if defectively designed. (See B. F. Goodrich Company v. Hammond, 269 F. 2d 501 [10th Cir. 1959].) We have here a product likely found in many households. Its only feature possessing any uniqueness is that it may be used to manually recap a beverage bottle. It is free from working parts, and simple in design. Inherently dangerous characteristics are lacking, and common sense dictates its limitations of use. That the device may become imminently dangerous if defectively designed, and thus bring about injury, is difficult to imagine, and at best, is a remote possibility. The same may be said of many common tools, such as a hammer, kitchen knife, or ice pick. The law, however, does not require that every product be accident-proof or totally incapable of doing harm. It would be unreasonable, in our opinion, to hold the manufacturer of this simple household device responsible for every injury which might ensue from mishap in its use on the ground that it could have been designed safer or completely accident-free.
We note that nearly all the cases from other jurisdictions which have dealt with the manufacturer’s duty of design have predicated liability on the ground of negligence rather than implied warranty. (Anno. 76 A. L. R. 2d 91, et seq.; 3 Hursh, American Law of Products Liability §20:1, et seq.) The courts are nearly unanimous in saying the product-design duty of a manufacturer is that of reasonable care, but he is not an insurer that his product, from a design standpoint, be accident-proof or incapable of producing injury.
Bearing in mind that recovery is sought here on the theory of implied warranty of design rather than negligence, we refuse to extend the warranty to a simple household device such as the "Handy Dandy.” We therefore hold that as a matter of law plaintiff cannot recover against the defendant manufacturer. Thus, it is unnecessary to examine the sufficiency of plaintiff’s evidence against Bellern.
We hasten to add that the full impact of the new Uniform Commercial Code, adopted in this state since the time plaintiff’s cause of action accrued, is yet to be considered in the area of products liability in relation to implied warranties. We need not cross that bridge in this opinion.
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The opinion of the court was delivered by
Harman, C.:
We are concerned first with the authority of a district court to order lump sum redemption of a workmen’s compensation award.
The claimant-appellee received an award of compensation against the respondent-appellant for an injury received January 5, 1965. The award was for five and three-sevenths weeks of temporary total disability at the rate of $42.00 per week, followed by five per cent permanent disability for four hundred eight and two-sevenths weeks, payable at the rate of $3.90 per week.
Payments under this award were made for approximately seven months. Appellee then filed his application with the workmen’s compensation director for an order requiring the balance due on the award to be paid in a lump sum pursuant to K. S. A. 44-531. A hearing on the application was held before an examiner. The exáminer and, in turn, the director denied the application. Appellee then appealed to the district court of Wyandotte county, which court granted the application and ordered lump sum redemption. This appeal is from that order.
Appellant contends, first, there is no authority in a district court to act under K. S. A. 44-531. Appellee replies the district court has such authority under the appeal statute, K. S. A. 44-556. Thus the answer lies in the construction to be given these two statutes. The precise question has never been determined by this court. It was raised in Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872, but left open inasmuch as the case was disposed of on other grounds.
K. S. A. 44-531, enacted in its present form in 1955, provides:
“Where payments under an award have been made for not less than six (6) months, the workmen’s compensation director may, when he, in his sound discretion, determines it is for the better interest of the injured employee or the dependents of-a deceased employee, require the employer to redeem all or any part of his liability under such award by the payment to the workman, or the dependents of the deceased workman, of a lump sum equal to ninety-five percent (95%) of the amount of the liability redeemed under the award, upon application of either party, upon notice to the other party by the director. Upon paying such amount the employer shall be discharged of and from all liability for the portion redeemed under this section.”
K. S. A. 44-556, insofar as pertinent here, provides:
“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. . . .
“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. . . .”
Appellant bases its contention upon several grounds. It argues the legislature knew how to vest the authority to order lump sum redemption in the district court inasmuch as it had specifically done so in our original 1911 compensation law, yet it has not done so in our current law.
It is true our first compensation law vested sole authority to order lump sum redemption in the district court (Laws 1911, chap. 218, §33). This redemption was one which could be exercised only at the option of the employer; the employer could discharge his liability under an award upon payment of eighty per cent of the total amount prospectively due. However, in the initial act, absent agreement or arbitration, the district court was the only agency or tribunal authorized to make an award of compensation — and this was done in a civil action — there being no administrative body such as a commission or director provided in the act. Under the 1911 act many of the duties and powers which were to be exercised relating to compensation were vested in the district court, instead of a commission which came into being later (Laws 1927, Chap. 232). Hence we think the fact the district court was initially vested with this power is not significant to our present problem.
Appellant argues that the provision in 44-556, “On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or dimmish any award of the director as justice may require,” defines and limits the authority of that court upon appeal and inasmuch as the right to order lump sum redemption is not specifically mentioned it does not exist. Appellant in effect would have us apply the maxim Expressio unius est exclusio alterius. Generally, this maxim may be used in the interpretation and construction of statutes when the intention of the lawmaking body is not otherwise clear (82 C. J. S., Statutes, §333a). However, it is merely an auxiliary rule of statutory construction which is not conclusive; it should be applied only as a means of discovering legislative intent not otherwise manifest, and should never be permitted to defeat the plainly indicated purpose of the legislature. Accordingly the maxim is inapplicable if there is some special reason for mentioning one thing and none for mentioning another which is otherwise within the statute, so that the absence of any mention of such other will not exclude it. Where the statute contains an enumeration of certain things to which the act applies and also a general expression concerning application of the act, the general expression may be given effect if the context shows that the enumeration was not intended to be exclusive. So the maxim does not apply to a statute the language of which may clearly comprehend many different cases in which some only are mentioned expressly by way of example, and not as excluding others of a similar nature (82 C. J. S., supra, §333b; see also Breedlove v. General Baking Co., 138 Kan. 143, 23 P. 2d 482, and Priestly v. Skourup, 142 Kan. 127, 45 P. 2d 852).
The extent to which the doctrine should be applied depends in any event on how clearly legislative intent is otherwise expressed.
Appellant emphasizes the phrase “in his sound discretion” as used in 44-531, and asserts by its use — the precise phrase not being found elsewhere in the workmen s compensation act — the legislature intended the right to order redemption to rest exclusively within the sound discretion of the workmen s compensation director, and that his decision is not subject to de novo review by the district court upon appeal. The question is not entirely free from difficulty in view of 44-556.
The latter statute does provide for an appeal to the district court from “any and all decisions, findings, awards or rulings of the director .. . 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.” This is broad language. Indeed it is difficult, from the language employed, to conceive a wider grant of power. And it is expressed in plain, unambiguous terms. Much more restrictive language could have been used; for example, in K. S. A. 60-2102, the legislature specified in detail the particular type of district court orders from which appeals might be taken to this court. The contrast is great.
In performing his duties the workmens compensation director has functions which are purely administrative and others which are judicial or quasi-judicial in nature. It may be helpful to examine his duty under 44-531. To start with, in a contested hearing, the director is forbidden to enter a lump sum award except for amounts past due (K. S. A. 44-525). Payments of compensation are ordered in weekly payments, that is, periodically, as wages are paid.
When, after payments have been made for at least six months, application for lump sum redemption is made, it is essentially a request to change the character of the award in the light of then-existing conditions. Inherently, the employer-respondent has an interest in the award, and in the light of the end sought to be achieved by the workmens compensation act, there is a public interest as well. Conceivably a change in award could have far-reaching consequences and in a very real sense of the word could constitute a new award. The right to review and modification of an award (44-528) as well as entitlement to medical treatment (44-510) are affected. Thus redemption terminates rights and liabilities on both sides. Such an award is to be made (except under 44-529 where security is doubtful) only after a determination “it is for the better interest” of the injured employee or his dependents. Some type of hearing on the matter is clearly contemplated, and this has always been the custom and practice. The question to be determined is one of fact, namely, Is a lump sum redemption for the better interest of the claimant? Therefore, we think the director performs more than a mere administrative function in this duty. He considers past and present facts as disclosed by an evidentiary hearing. Certainly this is in the nature of a judicial function, and one for which appellate review is appropriate.
The injunction of the legislature that the director exercise sound discretion in a 44-531 determination does not militate against the essential judicial nature of the function. Certainly the legislature expected good judgment, a wise and cautious discernment, and it said as much. The exercise of discretion is always an element of judicial power. We do not believe that by the use of the words “in his sound discretion” the legislature intended thereby to establish a separate procedural scheme on this one question, nor that it intended by the enactment of 44-531 to override the plain language in 44-556. In Ross v. Lytle Co., 183 Kan. 825, 332 P. 2d 592, this court stated that 44-531 must be read together with other parts of the compensation act. We hold a district court has authority on appeal to determine an application under 44-531 for lump sum redemption of an award.
Appellant raises the further contention the evidence before the trial court was insufficient to support its order. Initially we are confronted with the well established rule that the findings and judgment of a trial court entered in a workmen’s compensation case will not be disturbed on appeal if supported by substantial competent evidence (see Jibben v. Post & Brown Well Service, 199 Kan. 793, 433 P. 2d 467). In the Jibben case it was stated the term “substantial evidence” means evidence which possesses something of substance and relevant consequence and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved.
Appellee was the only witness who testified at the hearing. It appears he was still employed by appellant, earning $6,800 to $7,000 per year. His wife also works, earning $4,200 per year, so that the annual family income was approximately $11,000. He owed a finance company $319.64, payable $26.00 per month, he owed a department store $763.05, payable $37.53 per month, and a bank on a new automobile purchased after his injury the sum of $2,600, payable $99.02 per month. He also owed his father-in-law $600 for money lent him while he was off work, which loan could be repaid without interest as he was able. He has one child. His living expenses totaled approximately $377.50 per month. His wife and daughter had been ill and he owed $18.00 to a doctor. His wife had just recovered from bronchitis. She had a sharp pain underneath her lung and appellee was not sure of the condition of her health; she was supposed to see a doctor but the doctor was out. He was running about two weeks behind on payment of his bills. He had been paying weekly into a credit union but usually by the end of the month had to draw the payment out to pay his bills. The initial award, of workmen’s compensation was based on an injury to appellee’s neck; all of the difficulty in his neck had not cleared up.
Based on the foregoing, the director denied the application, stating that the list of bills submitted appeared to have been incurred since the date of the accident, and that appellee’s providing shelter, clothing and food for himself and his family was not in jeopardy. The district judge allowed the application, stating:
. the nature of his injury is not known to me, and I don’t think I am asked to determine it here or to look into the future and see what it might be; I think that this man’s financial condition is such the respondent below should be ordered to pay the balance of the award, less the statutory discount, at this time, and that will be the order.”
Appellant urges the trial court erred in ordering the lump sum payment without knowledge of appellee’s physical condition and further that the evidence of his financial condition was insufficient as a matter of law to support the requisite finding. Appellee argues simply there was a showing of financial instability sufficient to warrant the finding that lump sum payment was in his better interest.
The expressed purpose of lump sum redemption is, of course, to serve the better interest of the claimant. We think there are several possible factors which could be considered in making this determination. Some permissible ones have already been indicated by this court.
Roberts v. Racking Co., 95 Kan. 723, 149 Pac. 413, arose under our initial workmen’s compensation law at a time when a district judge could in his discretion order an award paid either in a lump sum or in periodical payments. In considering legislative intent this court stated:
“. . . the judgment for a lump sum rendered by a court is enforceable by execution at once and is not open to modification as the condition of the employee may change or his earning capacity increase. The theory of the legislature manifestly was that cases would arise in which the condition of the employee would be so marked that there would be little reason to anticipate improvement in earning capacity, and that the circumstances would be such as would warrant the court in giving judgment for a lump sum available at once rather than for periodical payments, as in an award. The kind of judgment that is to be rendered was left to the discretion of the trial court, [p. 728.]
“In arriving at its judgment the court considers the testimony as to the nature of the injury, its effect on the earning capacity, the duration of the incapacity and the likelihood of .cure or improvement; and from all pertinent facts brought to its attention it determines whether die judgment shall be for periodical payments or for a lump sum on which payment may be enforced at once.” (p.729.)
In Ross v. Lytle Co., supra, the question was whether an award for temporary disability was subject to lump sum redemption. In holding that it was not, this court referred to the Roberts decision as well as to decisions in sister states wherein physical condition of the claimant was a factor, especially in view of statutory provisions for review or modification of an award based upon changed physical ability. As already indicated, an award of compensation in Kansas which is being paid periodically carries with it, prior to final payment, a continuing right of review and modification (44-528) as well as the right to substantial treatment (44-510), which rights and liabilities are terminated by commutation.
Although physical condition, the nature of the disability, unquestionably can be a consideration and an important one, it is not the only one upon which lump sum commutation can be ordered, to the exclusion of others. In support of this, it need only be pointed out the benefits of the statute are available as well to dependents of a deceased employee. In the' phrase “better interest” of the claimant, the lawmakers used broad language and that language is entitled to liberal construction to effect the remedial purpose of the statute. We hesitate to attempt to delineate all possible factors upon which lump sum redemption could be based, and there is no necessity for such effort. Our problem here is simply whether the evidence shown in the record before us is sufficient to satisfy the statute.
We need not recount the evidence. Appellee himself probably best summarized it in saying he was running about two weeks behind on the payment of his bills. If the question were before us, it might well be held that evidence of economic hardship or necessity was sufficient but a case of economic hardship is simply not before us on the present state of facts and we leave that question for future consideration.
No inflexible rule can be laid down. However, we think the legislature had in mind that some unusual or exceptional circumstances should exist to justify departure from the normal method of payment of compensation and termination of all rights and liabilities under a continuing award. Without further laboring the matter we think that running about two weeks behind in paying bills is not so exceptional or unusual a circumstance in these times as to warrant that departure. Accordingly we hold there is no substantial evidence to support the trial court’s finding and its judgment is reversed.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal by the appellant, Thomas L. Metcalf, in a proceeding instituted pursuant to K. S. A. 60-1507, wherein the district court denied relief.
On May 22, 1964, the appellant entered a plea of guilty in the presence of his court-appointed counsel, to the crime of armed robbery (G. S. 1949, 21-527), and was sentenced to confinement in the Kansas State Penitentiary for a term of not less than ten nor more than 21 years pursuant to G.S. 1949, 21-530.
On March 9, 1966, the appellant filed a petition in the district court which he entitled Motion for a Writ of Habeas Corpus. The district court appointed Miles D. Mustain, a regular practicing attorney of the Wyandotte County Ear, to represent the petitioner.
On June 3, 1966, the appellant and his counsel appeared personally before the district court and presented his evidence in full in support of the allegations of his petition. Upon consideration of the appellant’s uncorroborated evidence, the district court, treating his motion as a proceeding under K. S. A. 60-1507, denied the relief sought. Hence this appeal.
At the outset, we note the record discloses that on March 2, 1964, Mr. Bill Yockey, a member of the Wyandotte County Bar, was appointed by the district court to represent the appellant and his co-defendant in criminal case No. 18,353 CR. An information duly filed in that case charged both defendants with three different counts of armed robbery. On May 11, 1964, the appellant and his co-defendant appeared before the district court with their attorney, and the following proceedings were had:
“Mr. Yockey: This is Mr. Metcalf, Your Honor; this is Mr. Miles.
“The Court: Mr. Yockey was appointed as your attorney on the 18th of April, I believe you said?
“Mr. Yockey: On the second day of March, 1964.
“The Court: All right, Mr. Roberts, you might read the information.
“Mr. Yockey: We will waive the reading of the information, Your Honor, in its entirety.
“Mr. Roberts: At this time, Your Honor, the county attorney’s office moves to dismiss counts one and three of the information and to proceed on count two. Count two charges both defendant with the crime of armed robbery.
“The Court: State dismisses counts one and two.
“Mr. Roberts: Excuse me, Judge, count one and three.
“The Court: One and three, all right. I assume, Mr. Metcalf and Mr. Miles, you are agreeable with that?
“Defendant Metcalf: Yes, sir.
“Defendant Miles: Yes, sir.
“The Court: Now, you both understand, Mr. Metcalf and Mr. Miles, that you have a right to have the remaining count, count two of the information, read to you. Mr. Yockey, the attorney, suggests that you are both willing that — to waive the reading of that count, is that correct?
“Defendant Metcalf: Yes, sir.
“Defendant Miles: Yes, sir.
“The Court: Now, that count two charges—
“Mr. Roberts: Charges both defendants with robbery of Patty’s Grocery Store and the taking of $80.00 lawful money of the United States from John Patty and Virginia Patty, from the person, in their presence and against their will.
“The Court: Now, Mr. Metcalf and Mr. Miles, you have the privilege of pleading not guilty, standing mute or pleading guilty; you have the right to a trial by jury or you have a right to stand before the Court. You know those things, both of you?
“Defendant Miles: Yes, sir.
“Defendant Metcalf: Yes, sir.
“The Court: All right, Mr. Metcalf, how do you plead to this charge?
“Defendant Metcalf: Guilty.
“The Court: Mr. Miles?
“Defendant Miles: Guilty.
“The Court: Guilty; no promises have been made and no threats have been made, is that correct?
“Defendant Miles: No, sir.
“Defendant Metcalf: Yes.”
Following the entry of their pleas of guilty, the appellant and his co-defendant made application to the district court for probation.
On May 22, 1964, the district court, sitting en banc, denied the appellant and his co-defendant’s application for probation. On the same day, together with their attorney, they appeared before the district court for sentencing, and the following proceedings were had:
“The Court: Mr. Miles, you have not been sentenced; you have entered a plea of guilty on the 11th day of May, and Mr. Metcalf has entered a plea of guilty on tire 11th day of May. Do you have anything to say before sentence is pronounced upon you?
“Defendant Miles: Well, all I have to say is that if I hadn’t been drinking that night, it would have never happened, I know that, sir; I was drinking, and I don’t know what happened that night; I just remember parts of what I have done.
“The Court: Mr. Metcalf, do you have anything to say before sentence is imposed on you?
“Defendant Metcalf: Well, I am sorry about the whole thing; I have had so much trouble, I was upset about the whole thing, or it wouldn’t have happened.
“The Court: Mr. Yockey, is there anything you would like to say?
“Mr. Yockey: Nothing that hasn’t been said before, Your Honor.”
Thereupon the district court imposed sentence as heretofore stated.
The appellant first contends that when the police officers of the Kansas City police department arrested him on January 24, 1964, they unlawfully searched his car without a search warrant and found a .32 caliber pistol which he claims was illegally obtained, through search and seizure, and which was used to persuade him to sign a statement confessing his participation in the armed robbery. Following his arrest, the appellant was taken to the police station where he was questioned by detectives for approximately one-half hour. He alleged and testified that the police officers did not advise him of his right to remain silent or of his right to have counsel present at the interrogation, and that his confession was obtained illegally.
On January 25, 1964, the appellant was taken before the police judge without counsel, and bond was fixed for his appearance. Being unable to provide bond, the appellant was recommitted to the city jail. On January 28, 1964, a complaint was filed in the city court of Kansas City, charging th,e appellant with three counts of armed robbery. The following day a warrant was issued for his arrest and he was taken before the judge of the city court, where Mr. Bill Yockey was appointed to represent him. The appellant requested a preliminary hearing, and the cause was continued until February 28, 1964. On that date, the appellant and his counsel appeared in the city court and a preliminary hearing was held, resulting in his being bound over to the district court.
An information was duly filed in the district court charging the appellant with three counts of armed robbery. On March 2, 1964, Mr. Yockey was again appointed to represent him. Counsel advised the appellant he had conferred with .the county attorney who stated that if appellant would enter a plea of guilty to one count of armed robbery, the other two counts would be dismissed, and that the habitual criminal act would not be invoked. As the record indicates, the appellant entered his free and voluntary plea of guilty to the crime charged, and he made application to the district court for probation. The appellant contends the district court erred in refusing to set aside his conviction at the evidentiary hearing on June 3, 1966. He argues he was denied the assistance of counsel until after his arraignment in the district court, almost one month after his unlawful arrest and his confinement in jail during which time a coerced statement had been secured from him, a weapon seized, and he had not been advised of his right to counsel. He further argues that when counsel was finally appointed, the evidence was already in the hands of the prosecutor and his rights had been violated; that an attorney appointed after the fact could not protect his rights because he would have to stand trial and face the vagaries of the court as to the admissibility of evidence obtained prior to counsel having been appointed. The contentions lack merit.
In the first place, the record indicates the appellant was arrested on probable cause by officers of the police department for the commission of a felony which had occurred within 24 hours of the time of his arrest. Hence, it follows that the search of the appellant’s automobile and the seizure of the .32 caliber pistol was not unlawful and did not violate his constitutional rights. (State v. Wood, 190 Kan. 778, 378 P. 2d 536; State v. Blood, 190 Kan. 812, 378 P. 2d 548; State v. Wood, 197 Kan. 241, 416 P. 2d 729; State v. Brown, 198 Kan. 473, 426 P. 2d 129.) Likewise, the record indicates the appellant admitted at the hearing in the district court that the police officers who interrogated him at the police station advised him of his right to remain silent, and of his right to counsel prior to the time he gave and signed a written statement implicating him in the armed robberies. Moreover, neither the .32 caliber pistol nor the appellant’s written statement was introduced in evidence against him in the district court. The appellant entered a voluntary plea of guilty to the charge of armed robbery and once such a plea had been entered, there was no need to introduce any evidence to maintain the conviction. This court has repeatedly held that a defendants plea of guilty in a criminal case, freely and voluntarily entered when he is represented by counsel, is a confession of guilt of the crime charged and of every fact alleged therein, and, legally speaking, such a plea is the most formal and binding confession possible for him to make. (Dexter v. Crouse, 192 Kan. 151, 153, 386 P. 2d 263; Berger v. Hand, 190 Kan. 220, 221, 373 P. 2d 175.) In State v. Dobney, 199 Kan. 449, 429 P. 2d 928, it was held that whether a confession of guilt would have been inadmissible at trial was irrelevant when the accused voluntarily entered a plea of guilty. This would be true with respect to the admissibility of the .32 caliber pistol taken from the appellant’s car at the time of his arrest. In the opinion it was said:
“. . • Assuming, however, incriminating statements were obtained, they were never offered or used against him. He chose to enter a plea of guilty instead of standing trial. Therefore, whether or not such statements would have been admissible had they been offered in evidence at a trial, is entirely irrelevant. (Allen v. State, 199 Kan. 147, 427 P. 2d 598; Baier v. State, 197 Kan. 602, 419 P. 2d 865; Smith v. State, 196 Kan. 438, 411 P. 2d 663; McCall v. State, 196 Kan. 411, 411 P. 2d 647; Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. denied 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.) Moreover, defendant overlooks the significance of his voluntary pleas of guilty to the crimes charged. We have repeatedly held that an accused’s voluntary plea of guilty in a criminal case is a confession of guilt of the crime charged and every fact alleged therein, and that legally it is the most formal and binding confession possible for him to make. (Allen v. State, supra, and cases therein cited.)” (l.c. 450.)
The appellant’s reliance upon the Escobedo and Miranda doctrines is unavailing. The defendant entered his plea of guilty on May 22,1964; Escobedo was decided on June 22, 1964, and Miranda was not decided until 1966. In Addington v. State, 198 Kan. 228, 424 P. 2d 871, it was said:
“In making the contention, the defendant concedes that Escobedo and Miranda are inapplicable since they were decided after the defendant’s trial began on April 16, 1963. (Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772.) He contends, however, that those cases only establish a minimum standard for compliance with the Constitution of the United States,’ and argues the constitutional principles announced should now be applied retroactively by this court to the instant case. We decline to do so. Such a holding would seriously disrupt the administration of the criminal laws of this state and might require the retrial or release of numerous prisoners found guilty by competent and trustworthy evidence. See, Johnson v. New Jersey, supra.” (l.c. 233, 234.)
The appellant contends that for the district court to grant him an evidentiary hearing and then hold that his evidence was insufficient absent any proof to the contrary, constitutes denial of due process of law. Under the provisions of K. S. A. 60-1507 and Rule No. 121 (g) the movant has the burden of establishing his grounds for relief by a preponderance of the evidence. In Huston v. State, 195 Kan. 140, 403 P. 2d 122, it was held:
“In a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the statutory requirements of K. S. A. 62-1304 is prima facie evidence to establish that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of the accused in a subsequent proceeding under K. S. A. 60-1507 are insufficient to overcome this evidence.” (Syl. ¶1.)
The only evidence before the district court was that presented by the appellant. No witnesses were named in his petition seeking relief nor did he seek to have anyone testify in his behalf. We have fully reviewed the record and conclude the district court was eminently correct in summarizing the appellant’s petition and his evidence to the effect that he got “what he wanted and that is a vacation from the penitentiary,” and that, “Mr. Metcalf’s vacation is over.”
Our review of this record convinces us the appellant wholly failed to sustain the burden of proof incumbent upon him and the judgment of the district court denying relief is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying relief in a proceeding to vacate a sentence brought under the provisions of K. S. A. 60-1507.
The trial court had on September 17, 1964, considered a letter filed by the petitioner as a petition under K. S. A. 60-1507 and denied relief without a hearing on an examination of the files and records of the original conviction and sentence.
A second petition was filed on December 21, 1964, in which it was again contended that the sentencing on a plea of guilty without the aid of an attorney except at the sentencing and the failure to hold a preliminary hearing deprived petitioner of his constitutional rights.
The trial court overruled the second petition under the provisions of K. S. A. 60-1507 (c) which provides:
“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”
The petitioner has appealed.
Perhaps the appeal should be dismissed for the reason stated by the trial court and the statute above quoted. However, as the first proceeding was filed in letter form before the forms prescribed in Supreme Court Rule No. 121 were made available, we will consider the questions on their merit. (Perrin v. State, 196 Kan. 228, 410 P. 2d 298.)
The appellant first contends that there were triable issues of fact and substantial issues of law raised by the petition requiring appointment of counsel and the presence of appellant at the hearing. Whether or not this contention has merit must depend on the nature of the grounds on which the sentence and judgment were challenged and the condition of the record in connection therewith. If the files and the record of the case conclusively show that the prisoner was entitled to no relief, a hearing was not necessary. (K. S. A. 60-1507 [6].)
The appellant in his statement of points relied on for reversal challenges the original judgment and sentence on two grounds:
"The Court errored, in that the records failed to show an appearance of the Defendant at either Prehminary Hearing or Arraignment and in fact was not granted a preliminary hearing as required by K. S. A. 62-611 and 62-614.
“The Court failed to appoint counsel until the proceedings prior to sentencing and when counsel was appointed, the Court failed to allow adequate time for consultation, amounting to inadequate representation.”
The recorded facts are applicable to both questions. The appellant was charged in two separate informations, each with two separate counts of burglary in the second degree and larceny in connection therewith.
On April 1, 1961, he was brought before the district court by the county attorney for the purpose of inquiring into the necessity of appointing an attorney for his defense. At that time the following colloquy took place:
“The Court: Mr. Alcorn, I believe at the present time or previous to being brought to jail here in Butler County you were in the Kansas State Penitentiary at Lansing, Kansas, is that true?
“Mr. Alcorn: Yes.
“The Court: And by provision of the statute you have asked to be brought back to have this matter disposed of. I assume you do not have an attorney, is that correct?
“Mr. Alcorn: Yes.
“The Court: Do I assume you don’t have funds to employ an attorney?
“Mr. K. Alcorn: I would like to waive all rights and get it disposed of as soon as possible.
“The Court: I believe this court should appoint an attorney to advise with you your rights.
“Mr. K. Alcorn: They discussed that with me the other morning.
“The Court: I believe I will appoint an attorney to go over the matter with you and advise you as to what your rights are and so in case No. 6671 and 6672 I will appoint Roy S. Fischbeck to be your attorney in regard to both of these cases and he will be notified and I assume he will get in touch with you some time today.”
On April 3, 1961, the appellant appeared before the district court with his court appointed attorney and entered his plea of guilty. At the same time he requested the court to make the sentences run concurrently. He was questioned:
“The Court: All right. Mr. Alcorn have you heard your attorney enter your plea of guilty to the charges as contained in the information?
“Mr. Alcorn: Yes, sir.
“The Court: And that is your free and voluntary plea, is it, Mr. Alcom?
“Mr. K. Alcorn: Yes, Your Honor.
“The Court: And you are entering your plea because you are guilty, is that correct?
“Mr. K. Alcorn: Yes.
“The Court: Do you know of any reason why sentence should not be pronounced against you at this time?
“Mr. K. Alcorn: I know of no reason.”
The appellant was then sentenced to not less than five nor more than ten years on the first count of the first information and all other sentences in both informations were to run concurrently.
We must conclude from these undisputed facts that appellant’s rights were not affected by his failure to receive a preliminary hearing.
A preliminary hearing is not a trial for the purpose of determining the guilt of the accused and it is waived where the defendant enters a voluntary plea of guilty in the district court. In State v. Daegele, 193 Kan. 314, 316, 393 P. 2d 978, cert. denied 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686, we stated:
“. . . The purpose of a preliminary examination for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. The proceeding is not a trial in the sense that one may be found ‘guilty.’ A defendant is bound over for trial only where the state establishes that an offense has been committed and that there is probable cause for charging him with its commission — otherwise he is to be discharged. . . .”
The very general rule of this court as to waiver of a preliminary hearing was stated in Plasters v. Hoffman, 180 Kan. 559, 560, 305 P. 2d 858, where we said:
. . Moreover, under decisions dealing with like contentions, this court has held that a person charged with the commission of a felony waives his right to a preliminary hearing by entering a plea of guilty in tire district court (see e. g., Cooper v. Hudspeth, 166 Kan. 239, 240, 199 P. 2d 803; Foster v. Hudspeth, 170 Kan. 338, 340, 224 P. 2d 987).” (See, also, Thomas v. Hand, 184 Kan. 485, 337 P. 2d 651.)
We find no merit in appellant’s contention that an attorney was belatedly appointed and inadequate time was allowed for consultation.
Counsel was appointed three days before the accused was brought before the district court for arraignment. The brother of the accused was also present. The record indicates that the defendant was guilty and knew he had no defense. He wanted to waive all of his rights and get a disposal of the matter. The exact length of time which he spent discussing his guilt with his attorney should not be made a determinative issue in this case.
As the files and the record conclusively show that the prisoner was entitled to no relief there was no occasion for a hearing or the appointment of an attorney. Public policy does not permit the district courts or this court to devote all of their time catering to convicts raising frivolous objections to their imprisonment.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, Ladislado M. Hernandez, brings action to recover damages for loss of the four fingers of his right hand. A verdict was returned in his favor and judgment was entered accordingly. The defendants have appealed. We shall refer to the parties as plaintiff and defendants, respectively.
Basically, two points are before us. First, that the trial court erred in overruling the defendants’ motions for directed verdict, one motion being made at the conclusion of the plaintiff’s evidence and the other at the conclusion of the trial, and second, that the court erred in overruling the defendants’ motion for a new trial.
Primarily the plaintiff’s first contention is based on two principles: assumption of risk and contributory negligence. A recital of certain facts is required for intelligent discussion.
On the date of the accident the plaintiff was a farm laborer employed by defendants on their farm near Deerfield, Kansas. He had worked on farms for some six or seven years and was familiar with power machinery. At the time in question he had completed one year at the Garden City Junior College, and found it necessary to work in order to complete his education. Although not material to any issue now before us we nevertheless note that after his accident the plaintiff finished his college education and, at the time of trial, was teaching school.
As part of their farming operations the defendants engaged in the feeding of cattle, an agricultural pursuit, we may add, which has become quite extensive on the high plains of Western Kansas. In connection with their cattle operations the defendants owned and employed a feed mill, or feed grinder. Power for the grinder was furnished by a tractor through means of a power take-off shaft containing universal joints, or U-joints. The evidence is uncontradicted that the shaft was not protected by guards or other means.
The feed mill was located in a small cement pit from which the ground feed was augered into a bin. The grain to be milled was scooped into a hopper leading to grinders or rollers located underneath, where the grain would be ground into feed. Near the bottom of the hopper, but above the grinders, was a so-called shield or guard which could be operated by a screw-type handle, or crank, to control the size of the opening through which the grain was fed into the grinders. On the date in question the handle, or crank, was bent in such a way that the aperture above the grinders could not be entirely closed. No other guard gave protection from the grinders.
On the day of his injury, as the plaintiff testified, he and Mr. Bachand, one of the defendants, began preparations for starting the mill. Mr. Bachand cleaned out the pit, scooping out the mud and slush which had accumulated there, and throwing it on the ground north and east of the mill, while the plaintiff performed other preliminary tasks.
Shortly after the mill was started, and the milling began, Bachand left the machine and the plaintiff continued the operation by himself. After he had finished grinding the feed the plaintiff testified that, as he had been told to do, and as was his usual custom, he continued to run the rollers and proceeded to clean the hopper by tapping it on each side to knock any remaining material into and through the rotating rollers; that while he was so engaged, he slipped and fell toward the drive shaft; that at this point, to avoid contact with the shaft or U-joints, he made a grab for the hopper, which he missed, and his right hand went into the rollers. As a result, the four fingers of his right hand were severed.
Two acts of negligence are charged against the defendants: One, failure to provide a guard around the shaft and its U-joints and the other, failure to provide protection against the grinders or rollers. As we have previously indicated, the defendants assert in defense of the plaintiff’s claim that plaintiff assumed the risk of injury and was also guilty of contributory negligence. In considering such defenses it may be assumed the defendants were negligent in the respects alleged.
The doctrine of assumption of risk is of ancient origin and has long been embraced by the courts of this state. As this court pointed out in Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253, the rule rests in the express or implied agreement of an employee that, with knowledge of the danger to which he will be exposed, he nonetheless agrees to accept responsibility for injuries which might result. Of course, the court continued, the risks assumed must have been known to the employee or must have been such that the employee, in the exercise of reasonable care for his own safety, should have known of them.
The language of Bancord has been quoted with approval in Parker v. City of Wichita, 150 Kan. 249, 92 P. 2d 86; Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042 and Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765. We shall attempt no improvement of the language used in these cases.
Testimony given by the plaintiff discloses that he had worked with or around power machinery for several years prior to his injury, and was experienced in heavy equipment and with farm equipment; that he had been employed by the defendants for at least a year prior to his accident and had operated the feed mill many times; and that he considered himself competent to operate the same. The plaintiff further testified he was aware that the equip ment was dangerous; that he knew he could be seriously injured if his hand became caught in the grinders or if he got caught in the power take-off shaft; that the grinder and power take-off were both in the same condition on the day of the accident that they had been in for the past year; and that he operated the equipment on the day in question in the same way he always had done and that there was nothing about its operation on that day that he had not known about prior to his injury.
The plaintiff also candidly admitted that he knew the day was rainy and misty; that he knew it was damp underfoot, and that it was slick and muddy; that he knew the slush or mush had been thrown onto the ground where he was standing; and that he got into the rollers by reason of slipping on some mud.
Measured by the rules set out in our many decisions exploring the reaches of the doctrine of assumption of risk, and we have mentioned but a few of our cases, we believe that the plaintiff’s own testimony, which we deem commendably frank and honest, precludes his recovery. In four decisions of recent vintage (Blackmore v. Auer, supra, Anderson v. Cooper, 192 Kan. 723, 391 P. 2d 86; Uhlrig v. Shortt, 194 Kan. 68, 397 P. 2d 321; and Wilson v. Deer, 197 Kan. 171, 415 P. 2d 289) we have dealt at some length with the assumption of risk doctrine in relation to injuries resulting to farm laborers from dangerous and unsafe equipment furnished by their employers. The discussions in each of these cases lucidly expound and learnedly depict the rule and we shall say of them, only, that they support the view we take of the circumstances inhering in the present action.
This court, with considerable consistency, has opined that the assumption of the customary risks of any given employment is ordinarily not a jury question, but a question of law. (Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103.) In Blackmore v. Auer, supra, we said:
“The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it.” (pp. 444, 445.)
In the case presently under consideration, the unguarded condition of both shaft and grinder was not concealed, but was manifest. The absence of protecting guards would be obvious to anyone who looked at or who worked with the equipment. Especially would the hazards involved be apparent to a farm worker who was experienced in the operation of power equipment and machinery. Indeed, the plaintiff quite forthrightly conceded that he was fully aware of the unprotected shaft and the unguarded rollers and knew the dangers they posed to a person who might come in contact with them. Nevertheless he continued to operate the feed mill in that very condition for over a year because, as he put it, “I didn’t think it could happen to me. I was careful.”
We believe the evidence of record establishes, as a matter of law, that the plaintiff assumed, as an incident of his employment with the defendants, the very risks and perils which led to his injuries. In discussing the doctrine of assumption of risk, this court in Kleppe v. Prawl, 181 Kan. 590, 594, 313 P. 2d 227, 63 A. L. R. 2d 175, had this to say:
“. . . assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs. . .
The plaintiff briefly suggests that he should be entitled to prevail because of a promise by the defendants to equip the power take-off with a guard and to repair the shield covering the rollers. We cannot agree that the evidence can be given such an interpretation.
It is true there is an exception to the general rule of the assumption of risk in those cases where an employee, after complaint has been made of a defective or dangerous condition, is induced to continue his service for a reasonable time by reason of his employer’s promise to remedy the defect. (Railway Co. v. Sledge, 68 Kan. 321, 74 Pac. 1111; Palmer v. Midland Valley Rld. Co., 118 Kan. 507, 235 Pac. 853; Johnson v. St. Joseph & G. I. Rly. Co., 125 Kan. 38, 262 Pac. 494.) The application of this exception to the rule presupposes that the employee has complained of the dangerous condition to his employer; that the employer has promised to remedy the dangerous condition; and that the employee has thereafter continued his service for a reasonable time in reliance upon the employer’s promise.
In the present case it is our judgment that the essentials on which the exception is based simply have not been established. Although the plaintiff stated that he and Mr. Bachand had talked more than once about fixing the shield and covering the shaft, he also testified that Mr. Bachand was the one who first mentioned it and that he (plaintiff) could not remember ever asking Bachand to make repairs. The plaintiff’s testimony further reveals that he wanted the machinery repaired so “we wouldn’t have so much difficulty starting the thing” and that safety “never entered my mind.”
We believe the conversations which took place between the plaintiff and Mr. Bachand never achieved the significance of a complaint on the one hand, or a promise on the other. It does not appear from the record that plaintiff initiated the discussions or ever complained of dangerous conditions. Nor do any of Bachand’s remarks ever rise to the dignity of a promise. As this court once said, in Ernst v. Railroad Co., 105 Kan. 706, 185 Pac. 1053, his utterances do not “bear the construction of a promise to remove or dispel some danger.” (p. 710.)
Nor do we find any evidence in the record from which it may be inferred that the plaintiff was induced to remain in the defendants’ employ because of the latter’s assurance that unsafe or dangerous features would be eliminated. The plaintiff never testified that he remained on the job because of any promise on the part of his employers to repair defective machinery. The conclusion, to us, seems inescapable that plaintiff gave no thought whatever to safety requirements; his stated interest lay in the ease with which the machinery could be started. Taking his evidence at face value, we believe that the plaintiff entertained no idea of leaving the defendants’ service if repairs were not made. There was no occasion for him to terminate his employment for that reason, since he did not regard his employment as dangerous. He testified that getting hurt never entered his mind; he thought it would never happen to him; that he was careful. (See Railroad Co. v. Mealman, 78 Kan. 496, 504, 505, 97 Pac. 381.)
We are not unmindful of the tragedy that befell Ladislado Hernandez on that rainy, misty day in Kearny County, but our judgment must be based on tested legal principles. Among these principles is the one we call the assumption of risk. It is a doctrine which, in our opinion, precludes the plaintiff from recovering in this case. We should like to add, however, that while sympathizing with plaintiff in his physical loss, we rejoice in the courage and spirit which has impelled him to earn a college degree and has established him as a member of a proud profession.
What we have said makes it unnecessary to discuss the plaintiff’s alleged contributory negligence as well as certain errors which the defendants have contended require a new trial.
The judgment of the trial court is reversed with directions to sustain the defendants’ motions for directed verdict and to enter judgment in favor of the defendants. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order denying a second motion for relief under the provisions of K. S. A. 60-1507.
On July 17, 1963, petitioner, Walter B. Fairbanks, while represented by counsel of his own choice, entered a plea of guilty to possession of burglary tools, waived his right to trial by jury on charges of burglary in the second degree and attempted larceny, and proceeded to trial by the court. The charge of attempted larceny was later dismissed by the state and petitioner was found guilty only of second degree burglary. Petitioner filed a motion for new trial which was overruled and then was sentenced pursuant to the Habitual Criminal Act (K. S. A. 21-107a) to terms of from ten to twenty years on the burglary charge and from two to six years for possession of burglary tools, the sentences were directed to run concurrent with each other.
On February 18, 1965, petitioner filed his first motion under K. S. A. 60-1507 to vacate the sentence. The motion was considered by the court and denied. On appeal to this court the judgment of the trial court was affirmed on May 7, 1966, in Fairbanks v. State, 196 Kan. 650, 413 P. 2d 985.
On June 16, 1966, petitioner filed the instant motion on a form supplied in accordance with Rule No. 121 of this court. In this second motion, as in the previous one, petitioner’s complaints are basically premised on the proposition that he was denied due process of law in the application of the provisions of the Habitual Criminal Act.
On July 21, 1966, the second motion was considered by the trial court. Petitioner was not present in person or by counsel. The court examined the motion, files and records, including the previous motion, and ruled that the records in the case showed conclusively that petitioner was entitled to no relief.
The only point of any significance made by petitioner here, that was not raised in the previous motion, is that he was named as Walter Benjamin Fairbanks in the journal entry of the Greenwood County conviction which was used to invoke the Habitual Criminal Act. Petitioner offers no explanation whatsoever as to why this complaint was not lodged in his first motion. From our examination of the record we find that petitioner was represented by the same counsel in the Greenwood County prosecution, that no objection was made as to identity at the time of sentencing or in his motion for a new trial in the Sedgwick conviction now under attack. Petitioner fails to deny here, or at any previous stage of the proceedings, that he is not the same person as Walter Benjamin Fairbanks.
For the reasons stated it is clear that petitioner is not entitled to relief on a second or successive motion under the circumstances related. (Hanes v. State, 196 Kan. 409, 411 P. 2d 646; Smith v. State, 195 Kan. 745, 408 P. 2d 647; State v. Foulk, 195 Kan. 349, 404 P. 2d 961.)
The trial court’s judgment denying relief on petitioner’s second motion was correct and is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the district court of Barton County, Kansas, dismissing a third-party petition on motion of the third-party defendants.
The only question here for consideration is whether the trial court erred in sustaining the third-party defendants’ motion.
John M. Russell (plaintiff-appellee) filed a petition in the district court of Barton County, Kansas, on the 4th day of April, 1966, instituting an action for the recovery of damages against the Community Hospital Association, Inc. and The Nuns of the Third Order of St. Dominic, a Corporation, d/b/a Central Kansas Medical Center (third-party plaintiffs-appellants), for injuries alleged to have occurred on or about the 24th day of October, 1964, when it is alleged he missed his footing and fell on certain outdoor steps which led to the parking lot. In his petition he alleged negligence on the part of the appellants “in the construction, operation and maintenance of said stairway,” upon which his alleged fall occurred.
The appellants on the 5th day of May, 1966, answered, specifically denying that they constructed said stairway or that they were negligent in the construction, operation and maintenance of the stairway. They further alleged that “if said stairways were improperly constructed, the responsibility therefor lies with the General Contractor and Architect designing and constructing said stairways.”
Thereafter on the 8th day of May, 1966, the appellants filed their third-party petition wherein reference is made to the allegations of the petition concerning negligence in the construction of the stairway in question. The appellants then allege “that the design and construction of the stairway in question was handled, designed and constructed by the defendants herein referred to as the Third-Party Defendants. That said hospital facility had recently been completed by the said Third-Party Defendants herein named, and that the negligence as alleged by plaintiff if any there be, and if same is found to exist, is properly the negligence and responsibility of the Third-Party Defendants herein named.”
The third-party defendants named were Dondlinger and Sons Construction Company, Inc., the general contractor, and John A. Shaver, Robert I. McKay and John D. Smutz, a Partnership, d/b/a Shaver & Company, the architects (third-party defendantsappellees).
On the 26th day of May, 1966, the third-party defendants moved to dismiss the third-party petition filed against them on the ground that it failed to state facts constituting a claim against them, and asserting that under the law of Kansas they cannot be made parties to the pending litigation upon the petition of the third-party plaintiffs.
After due notice the trial court heard the motion on the 7th day of June, 1966, and sustained it dismissing the third-party petition. Appeal has been duly perfected.
The third-party defendants argue the petition filed by the plaintiff in this action is drawn upon the theory of negligence only, and that the third-party petition is based solely upon negligence. They argue the plaintiff has chosen whom he desires to look to for recovery, and has not made any attempt at claiming recovery against the third-party defendants, so that the end result depends upon whether the appellants were or were not negligent. The third-party defendants contend if the appellants can prove the cause to have been in other parties, then they are not liable.
The third-party defendants rely solely upon the authority of Alseike v. Miller, 196 Kan. 547, 412 P. 2d 1007. Their brief consists entirely of extended quotations taken from the syllabus and opinion in the Alseike case.
The section of the civil code authorizing third-party practice is K. S. A. 60-214. The applicable portion of this statute reads:
“(a) When defendant may bring in third party. At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be hable to him for all or part of the plaintiff’s claim against him. Leave to malee the service need not be obtained if the third-party oomplaint is filed not later than five (5) days after the answer to the complaint is served. Otherwise leave must be obtained on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff’s claim as provided in section 60-212 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in section 60-213. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in section 60-212 and his counterclaims and cross-claims as provided in section 60-213. Any party may move for severance, separate trial or dismissal of the third-party claim. A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.”
Here the third-party petition was filed within five days after the answer to the petition was served, as provided by the foregoing section of the statute.
We are not at liberty to speculate as to what the evidence may eventually establish concerning the alleged negligence of the appellants, but must view the case in its present posture — prior to discovery proceedings and prior to pretrial. We are informed in appellants’ brief that they engaged the third-party defendants, Shaver & Company, as architects to design and supervise the construction of the medical center. They also engaged third-party defendants, Dondlinger and Sons, to build the structure. The completion of the structure was accomplished approximately March 1, 1964, and the injuries complained of in the plaintiff’s petition occurred on October 24, 1964.
Kansas adheres to the common-law rule that there is no right of contribution between joint tort-feasors. (Rucker v. Allendorph, 102 Kan. 771, 172 Pac. 524.) The court in Alseike recognized this fact and further recognized that the legislature in adopting our present code of civil procedure declined to create this right as initially recommended by the advisory committee. (See, J. C. B., November, 1962, Special Report, Recommendations, p. 38.)
In order to come within the provisions of 60-214 (a), supra, the third-party plaintiffs’ claim against the third-party defendants must be such that the latter are or may be liable to the third-party plaintiffs for all or part of plaintiff’s claim against them. In the Alseike case it was determined that the third-party action would not lie when the basis of the third-party plaintiffs’ claim was designed to seek contribution from a joint tort-feasor. In the opinion the court said:
“. . . Contribution being forbidden there is no way in which the third-party defendants are or may become liable to defendant for all or part of plaintiff’s claim against defendant. . . .” (p. 550.)
Counsel for the respective parties have presented and briefed this case on appeal as one involving a procedural question only. Therefore, inasmuch as the construction and particular design of the hospital structure in question is in issue as an element of negligence, we shall assume that sufficient evidence may be produced under the foregoing pleadings to hold the persons designing or constructing the building responsible for resulting damages as a matter of substantive law. In this connection see Inman v. Binghamton Housing Auth., 3 N. Y. 2d 137, 164 N. Y. S. 2d 699, 143 N. E. 2d 895, 59 A. L. R. 2d 1072 (see annotation entitled “Architect’s liability for personal injury or death from improper plans or design,” 59 A. L. R. 2d 1081); Hale v. Depaoli, 33 Cal. 2d 228, 201 P. 2d 1, 13 A. L. R. 2d 183 (see annotation entitled “Negligence of building or construction contractor as ground of liability upon his part for injury or damage to third person occurring after completion and acceptance of tire work,” 13 A. L. R. 2d 191); and Hanna v. Fletcher, 97 App. D. C. 310, 231 F. 2d 469, 58 A. L. R. 2d 847 (see annotation entitled “Negligence of building or construction contractor as ground of liability upon his part for injury or damage to third person occurring after completion and acceptance of the work,” 58 A. L. R. 2d 865.) See, also, 5 Am. Jur. 2d, Architects, § 25, p. 688; and 13 Am. Jur. 2d, Building, Etc. Contracts, §§ 139, 140, pp. 129, 131.
If there is fault in the construction and particular design of the hospital structure, the architect or the contractor is primarily at fault, assuming the appellants relied upon the skill of these people in the development of the premises. Furthermore, if the appellants are responsible to the plaintiff for allowing these faults to exist in the few months following completion of the project, the appellants’ fault would be passive or subordinate to the fault of the architect or contractor. Under these circumstances, should not the appellants be entitled to recover against the persons responsible for the primary fault by way of indemnity? The proposition is discussed in 27 Am. Jur., Indemnity, § 18, as follows:
“The principle involved in the rule that as between joint wrongdoers there can be no contribution, and that one of several persons who have become liable to another for a delict cannot, if compelled to discharge the whole, enforce contribution from his co-wrongdoers is likewise applicable where indemnity, as distinguished from contribution, is sought. But the operation of this rule against recourse is greatly circumscribed, with the result that one constructively liable for a tort is generally held entitled to indemnity from the actual wrongdoer, regardless of whether liability is imposed on the person seeking indemnity by statute or by rule of the common law, and irrespective of the existence of an express contract to indemnify. Accordingly, it has been stated that a person who, without fault on his own part, has been compelled to pay damages occasioned by the primary negligence of another is entitled to indemnity from the latter, whether contractual relations exist between them or not. In this connection it has been observed that where one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage, the rule denying contribution or indemnity between joint tort-feasors does not apply, the parties not being in pari delicto as to each other, though either may be held liable as to third persons. The right: of an indemnitor of a joint tort-feasor to indemnity from the co-wrongdoer or his indemnitor apparently depends upon the right of the joint-tort-feasor to indemnity against his co-wrongdoer.” (pp. 467, 468.)
The foregoing rule has been recognized in Kansas permitting a party who has been held liable to look for indemnity from a third party who was the real wrongdoer and primarily liable for the injury.
In City of Topeka v. Sash & Door Co., 97 Kan. 49, 154 Pac. 232, the city of Topeka was found liable for injuries sustained by a person lawfully using a defective sidewalk, and it was held the city could recover from an abutting property owner whose active fault caused the defective sidewalk. In the opinion the court said:
“1. The defendant caused the defective condition of the sidewalk. The plaintiff did not participate in producing that condition. The plaintiff was negligent in permitting the condition to remain, but it did not in any manner cause the condition. The plaintiff was not in equal wrong with the defendant. In 40 L. R. A., n. s., 1165-1172, is found an exhaustive note on ‘Right of municipality to recover indemnity or contribution from one for whose tort it has been held liable.’ A large number of cases are there cited to support the proposition that where municipalities have been held liable for injuries sustained by persons lawfully using defective streets or sidewalks, the cities can recover from those whose negligence or active fault as abutters, licensees or volunteers caused the defective conditions. (See, also, Note, 61 L. R. A. 591.) . . .” (p. 50.)
The foregoing decision was affirmed and the proposition applied in City of Fort Scott v. Penn Lubric Oil Co., 122 Kan. 369, 252 Pac. 268.
The United States Court of Appeals, Tenth Circuit, applying Kansas law in Security Insurance Co. of New Haven v. Johnson, 276 F. 2d 182 (1960), held that where the negligence of the railroad could have been the railroad’s failure to discover the dangerous situation allegedly caused by the contractors’ active negligence, and the dangerous situation caused a workman’s death, the insurance company which had agreed to indemnify the railroad against liability for injuries to its workmen resulting from construction or operation of the facilities under the railroad track, as subrogee of the railroad, could recover indemnity from the contractors, if their active negligence was responsible for the workman s death. In the opinion the court said:
“The general rule is that, in the absence of express contract, there is no contribution between joint tort-feasors. But where they are not in pari delicto, and their negligence is substantially different not merely in degree but in character, it is generally recognized that indemnity may be awarded. . . .
“Concentration in the arguments on the active-passive idea must not becloud the more fundamental basis of the doctrine which, as demonstrated by the authorities cited above, has been found to have application also by reason of otherwise described differences turning upon primary and secondary liability, actual fault as distinguished from that which is imputed or constructive, knowledge or lack of knowledge, or the nature of the respective duties to the persons injured or between the parties charged. As historically traced by the Supreme Court in the Washington Gaslight Co. case [Washington Gas Co. v. Dist. of Columbia, 161 U. S. 316, 40 L. Ed. 712, 16 S. Ct. 564], such distinctions had their roots in concepts of relative delinquency or culpability. The fundamental limitation as applied by this court in United States v. Acord, supra [United States v. Acord, 209 F. 2d 709 (10th Cir. 1954), cert. den. 347 U. S. 975, 98 L. Ed. 1115, 74 S. Ct. 786], is that the character of the negligence must be essentially different; and, of course, indemnification must be rationally justified upon equitable considerations.
“Liability to indemnify must be determined in accordance with the laws of the place where the acts or omissions giving rise to it occurred, which in this case was Kansas. United States v. Acord, supra. The rule that there can be no contribution between joint tort-feasors is there recognized. Rucker v. Allendorph, 102 Kan. 771, 172 P. 524. The exception to that rule allowing indemnity under certain circumstances also is recognized in Kansas. Counsel for appellees states that the Kansas Supreme Court has not decided any case involving purely the ‘active-passive’ relationship, and we have found none in that court presenting a fact situation precisely in point. But see Chicago, Rock Island & Pacific R. Co. v. United States, D. C. D. Kan. 1955, 129 F. Supp. 637.
‘It has been held by the Kansas Supreme Court, however, that an employer may be entitled to indemnification from his employee when called upon to respond to the claims of a third party 'under the doctrine of respondeat superior. Fenly v. Revell, 170 Kan. 705, 228 P. 2d 905; and that a municipality liable to an injured pedestrian by reason of its non-delegable duty to maintain its streets and walks is entitled to indemnity from the abutting property owner causing the dangerous condition. ...
“We perceive no real difference in the position of the railroad, or its subrogee here, and that of a municipality entitled in Kansas to indemnity from an abutting property owner actively creating a hazard which the municapility negli gently fails to discover and correct. The inescapable basis and rationale of the Kansas decisions seem applicable to the case at bar. Both the carrier and the municipality would have had the duty to use reasonable care to discover the unsafe or defective condition.” (pp. 185, 186.)
Not only is the foregoing theory well established in Kansas, but is recognized federally as well. (Waylander-Peterson Co. v. Great Northern Ry. Co., 201 F. 2d 408, 37 A. L. R. 2d 1399 [8th Cir. 1953].)
Under the foregoing theory, the negligence of the architect or contractor, if any, may prove to be the primary or active cause of the injury and the appellants would be entitled to indemnity. On this theory the case at bar falls outside the scope of the Alseike decision, and the third-party petition is not one designed to exact contribution between joint tort-feasors, but one designed to seek indemnity from the third-party defendants by reason of their primary liability — precisely a situation encompassed within the provisions of K. S. A. 60-214 (a).
The provision in 60-214 (c), supra, authorizing any party to move for dismissal of the third-party claim, does not grant the trial court discretionary power on the third-party defendants’ motion to dismiss a third-party complaint where the third-party complaint is properly filed, as in the instant case. It is only where the third-party complaint is improperly filed, as in the Alseike case, that the trial court may dismiss the third-party complaint. We hasten to add, however, we do not here pass upon the power of the trial court to dismiss a third-party complaint, which is properly filed, where the movant is the plaintiff in the action, or the third-party plaintiff.
We hold the trial court erred in sustaining the third-party defendants’ motion to dismiss the third-party petition which was properly filed in this action.
Accordingly, the judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from a conviction of assault with felonious intent. (K. S. A. 21-431.) The defense was predicated on insanity of defendant at the time of the offense. The principal contention on appeal is that the verdict was not sustained by substantial competent evidence on the issue of insanity.
The defendant-appellant, Gary M. Coltharp, was employed as a greens keeper at the Spring Lakes Country Club near Wichita in Sedgwick County. Clarence Brannum, the victim of the assault, was manager of the country club and the employer and supervisor of defendant.
The events leading up to the prosecution are undisputed and can be stated briefly.
On the morning of March 16, 1965, defendant was in the club dining room talking to a mémber. Brannum approached defendant and inquired why he was not out on the course mowing greens instead of talking to members in the dining room. A brief argument ensued between the two men and concluded with a conversation in which Brannum said “Well, if you don’t like the way we do things around here, you can just leave.” Defendant replied, “All right, I’m leaving, give me my check.” Brannum told defendant his check was not ready and he could come back and get it on pay day. Defendant then said “All right, I’m leaving,” and that, “At 5:00 o’clock tonight I’ll have this place closed.”
About 1:00 or 1:30 that afternoon defendant returned to the club and informed an employee that he wanted to see Brannum. Brannum was notified and came out of his office into'the hallway where defendant was standing. Brannum, with his hands in his pockets, walked toward defendant, who said “Don’t come any closer, Clarence. I came to get my check.” Brannum approached to within a few feet of defendant when defendant drew a .22 caliber revolver and started shooting at Brannum. Brannum started to fall to the floor after he was hit by the first shot and as he fell he was hit a second time. While lying on the floor he was hit in the shoulder by a third shot. At this point, defendant walked over and stood over Brannum and said “if those haven’t got you, this one will,” and then shot him in the head. After firing the fourth and final shot defendant walked into the dining room sat down and put the revolver on a table. He refused to give the gun to any one. Officers from the sheriff’s office arrived and defendant surrendered to them without resistance.
A complaint was filed and defendant was taken before the Court of Common Pleas of Sedgwick County the same afternoon. The court appointed H. B. Malone, an experienced attorney of Wichita to represent defendant and set the preliminary hearing for March 29, 1965. Defendant was bound over for trial in the district court and an information was filed.
On May 17, 1965, on motion by defendant’s counsel, the trial court appointed Dr. Don George, a psychiatrist, to examine defendant and determine his competency to stand trial. On July 29, 1965, the trial court received and approved the findings of Dr. George that defendant “is at this time insane but able to compre hend his position but not able to make a defense.” Defendant was committed to the State Hospital at Larned for safekeeping and treatment pursuant to the provisions of K. S. A. 62-1531 (now K. S. A. 1965 Supp. 62-1531). On November 26, 1965, after receiving a report (not shown in the record) of staff physicians of Larned State Hospital, the defendant was ordered to be returned for trial. On arraignment the defendant entered a plea of not guilty by reason of insanity. The case came on for trial on January 18, 1966, and terminated in a verdict of guilty on January 21. Defendant filed a motion for a new trial which was heard and overruled. After allocution the state offered evidence of a prior felony conviction which was admitted. The defendant was sentenced to confinement in the Kansas State Penitentiary for a term of not less than two nor more than twenty years pursuant to the provisions of K. S. A. 21-431 and 21-107a.
Thereafter present counsel was appointed and this appeal was duly perfected.
Defendant presents three points in his brief. In his first and principal contention defendant submits the verdict was not supported by substantial competent evidence with specific reference to the issue of insanity.
The defendant concedes there is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. (State v. Penry, 189 Kan. 243, 368 P. 2d 60; State v. McBride, 170 Kan. 377, 226 P. 2d 246.) Defendant, however, argues the presumption was overcome by the testimony of Dr. George, a witness for defendant. Dr. George, as we have indicated, had been appointed to conduct the pretrial examination of defendant.
When Dr. George was called to the witness stand the court, with no objection, instructed as follows:
“The Court: The new Code of Kansas provides that the Court may instruct from time to time during the trial if he deems it advisable. Ordinarily and formerly, instructions were only given at the close of the case after all the evidence was in; but in this particular case I’m going to deem to advise on one facet of it at this time in as much as the question of insanity has arisen.
“Dr. George, you might pay attention to this instruction too because it will certainly guide your testimony.
“This instruction goes as to what the legal definition of insanity is in the State of Kansas in criminal cases. It’s different than just regular probate insanity or civil insanity.
“Insanity, to constitute a legal defense to the charge of a crime, means that the defendant is laboring under such a defective reason from disease of the mind as not to know the nature and quality of the act he is doing, or if he did know it, that he did not know that it was wrong.
“Basically, that is the test in Kansas. There is another part to the instruction I’ll give later.
“Do you understand that definition, Doctor?
“The Witness: Yes, I do.”
The testimony of Dr. George related to his examination of defendant on June 7, 1965. Essentially, Dr. George found defendant possessed a content of thought preoccupied with violence, bitterness, and hatred of duly constituted society. Dr. George also found hints of marked dependency and some indication that defendant “could quite possibly be a severely, mentally ill person, a psycho-pathic person — or in the legal category the terminology is insane.” Dr. George further described the symptoms as schizophrenic reaction, pseudo-psychopathic type. Dr. George was further questioned concerning his diagnosis as follows:
“Q. This was your — were you able to reach a diagnosis as to his mental condition on March 16 of 1965 when he committed this assault?
“A. That was some 3 months prior to the examination?
“Q. Prior to the time that you saw him.
“A. No, I was not as a result of this examination and the psychological testing which was subsequently done — one can speculate with a considerable degree of certainty as to what his emotional state was on March 16, but I couldn’t testify with absolute certainty that it was such and such a way on that particular day.
“Q. And that is because of the lapse of time?
“A. Yes, some three months later as he came for examination.”
Dr. George described the psychological tests given to defendant as a part of the examination from the results of which he found evidence confirming his clinical impressions. In conclusion Dr. George gave his opinion that at the time of the offense defendant didn’t know the act he committed was wrong.
On cross-examination an hypothesis, based on all of the circumstances surrounding the act, was submitted to Dr. George and he was asked if he could say with reasonable medical certainty whether defendant knew his act was wrong. He replied:
“I don’t think he did. I think that he felt that he was defending himself from destruction at the hands of Mr. Brannum.
. “He was in touch with reality in many ways and always has been — every sick person is. Where his misperception was, was in the degree of threat and the misperception of Mr. Brannum’s designs on him, if you want to put it that way, what could come to him at the hands of Mr. Brannum.”
In rebuttal the state called Dr. Manuel Guzman, a physician attached to the staff at Larned State Hospital. Dr. Guzman’s testimony was based on his examination and observation of defendant during his stay at Larned, commencing in November 1965. Dr. Guzman described defendant’s condition as that of a character disorder — not exactly a psychotic condition. He testified that defendant was subjected to psychological tests while at Larned and the results of the tests also indicated a character disorder. He described defendant as a borderline case; that his character disorder had advanced to the point of being almost at the limit within the psychosis and character disorder. Dr. Guzman testified in substance that defendant was capable of knowing whether or not his acts were right or wrong while he was in the hospital. When asked if he could project back to defendant’s condition on the date of the assault, Dr. Guzman replied “It would be very hard because it would be just a speculation on my part.”
The state called eight lay witnesses including the victim and his wife, Ella Fae Brannum, the sheriff and a deputy.
A number of the state witnesses testified to defendant’s demeanor before and after the shooting. Several were fellow employees of defendant.
Defendant’s argument is based on the premise that the testimony of Dr. George overcame the presumption of sanity and absent the presumption the state’s evidence was insufficient to warrant a verdict of guilty.
The defendant relies on the case of Phillips v. United States, 311 F. 2d 204 (10th Cir. 1962), wherein it was held evidence of a long history of mental illness was sufficient to dissipate the legal presumption of sanity, thereby requiring the government to prove beyond a reasonable doubt criminal responsibility as an essential element of the offense.
The rule stated in Phillips, however, is not the law of this jurisdiction. A similar issue was before the court in State v. Mendzlewski, 180 Kan. 11, 299 P. 2d 598, where a defendant entered a plea of not guilty by reason of insanity and produced the testimony of a psychiatrist, we stated:
“However, it does not follow, as appellant suggests, that the mere interposition of such a defense in a criminal prosecution entitles a defendant to an acquittal. Nor does it follow, as is argued that regardless whether the state, through the medium of nonexpert witnesses, has adduced testimony tending to show the defendant in a murder case is sane, the accused is entitled to an acquittal simply because he has produced a Clinical Psychologist who has testified such defendant was insane at the time of the commission of the involved offense. Under such circumstances this court has long been committed to the rule (see, e. g., State v. Eye, 161 Kan. 69, 166 P. 2d 572; State v. McBride, 170 Kan. 377, 381, 226 P. 2d 246; Fisher v. Fraser, 171 Kan. 472, 476, 233 P. 2d 1066; State v. Hockett, 172 Kan. 1, 5, 238 P. 2d 539), recognized by courts of other jurisdictions (14 Am. Jur., Criminal Law, 799 §41; 26 Am Jur., Homicide, 509 §505; 23 C. J. S., Criminal Law, 624 §1130) that the question whether a defendant in a criminal action was sane or insane at the time of the commission of the offense with which he stands charged is one to be determined by the jury, under proper instructions from the court, upon the evidence introduced bearing upon such issue. Moreover, and again in line with the general rule (see 22 C. J. S., Criminal Law, 124 §59; 14 Am. Jur., Criminal Law, 796 §40), we have held repeatedly that the test for determining liability for commission of such crime is whether he was capable of distinguishing between right and wrong at the time with respect to the act committed, (see, e. g., State v. Nixon, 32 Kan. 205, 4 Pac. 159; State v. Mowry, 37 Kan. 369, 15 Pac. 282; State v. Arnold, 79 Kan. 533, 100 Pac. 64; State v. White, 112 Kan. 83, 209 Pac. 660; State v. McBride, supra, p. 381; Fisher v. Fraser, supra, p. 476.)” (pp. 13, 14.)
We believe the rules laid down in Mendzlewski completely control the issues raised on the point under discussion here.
We make this further observation that even though the testimony of Dr. Guzman does not diametrically contradict the testimony of Dr. George, the creditability of Dr. George’s conclusion could well have been damaged by the jury’s consideration of Dr. Guzman’s testimony that to project back to the time of the act would only be speculation.
The defendant submits three trial errors with respect to his second contention that he did not receive a fair trial. He first claims the trial court erred in interrupting the testimony of defendant’s expert witness, Dr. George. Dr. George testified that because of the length of time between the alleged crime and defendant’s examination by the doctor he was unable to specifically say that defendant was suffering from any particular thing on November 16, 1965. When the doctor, nevertheless, commenced to relate the results of defendant’s examination the following took place:
“The Court: (Interrupting) Doctor, you cannot give speculation. If you cannot give an opinion as to reasonable medical certainty, do not give it.
“The Witness: I would say that within the bounds of reasonable medical certainty that this is possible so, Judge.
“The Court: Anything within that bounds you may give.”
The doctor continued his' description of defendant’s symptoms and explanation of the diagnosis limiting the relation thereof to the date of the crime within the limits of reasonable medical certainty. We see no prejudice or abuse of discretion in the trial court’s direction to the witness. The incident related does not approach a violation of the admonition laid down in State v. Winchester, 166 Kan. 512, 203 P. 2d 229, that a trial judge must not forget his function and assume the role of an advocate.
Defendant complains of Dr. Guzman’s testimony concerning conclusions and opinions of other members of the Larned Hospital staff on the grounds that such testimony was inadmissible hearsay. No objection was made at the trial. This court has recently reaffirmed its commitment to the contemporaneous objection rule. (State v. Adamson, 197 Kan. 486, 419 P. 2d 860.) Therefore the point is not technically before us. Nevertheless we note the testimony of Dr. Guzman was primarily based on his own observation and examination. The form of his testimony was that he first made a determination of defendant’s mental condition and then other members of the staff used Dr. Guzman’s conclusions as a starting point to conduct further examination. Dr. Guzman as well as Dr. George in arriving at their respective opinions used material gathered from psychological tests given by psychologists under their directions. The opinion of an expert, otherwise qualified, when arrived at in the manner described, is not rendered inadmissible under the provisions of K. S. A. 60-456. The subject is discussed in depth and expressions of this court in line with what has been said here may be found in the recent case of Casey v. Phillips Pipeline Co., 199 Kan. _, 431 P. 2d 518.
Defendant complains the trial court’s instruction on insanity though “admittedly accurate” requires careful reading to discern its true meaning. Here again, no objection was lodged at the trial. We have, however, examined the instruction in question and find it to be in substantial conformity with instructions on the subject approved by this court in the early case of State v. Crawford, 11 Kan. (2nd Ed.) *32, and in many cases decided thereafter. (See State v. Andrews, 187 Kan. 458, 357 P. 2d 739, cert. den. 368 U. S. 868, 7 L. Ed. 2d 65, 82 S. Ct. 80, and cases cited therein.)
The defendant objects to an instruction by the court stating in substance that acting in response to an irresistible impulse is not a test for insanity and not a defense for a criminal act in Kansas. In the testimony of Dr. George there was some indication that defendant’s mental condition was such that he had a tendency to re spond to an irresistible impulse. The trial court has a duty to instruct the jury on all matters of law necessary for the jury to reach a- verdict. Since the instruction was relevant to the evidence and correctly stated the law in connection therewith we find no error in its submission.
We turn to the defendant’s final complaint. Before sentence was pronounced the state introduced, over defendant’s objection, evidence of a prior Oklahoma conviction upon a guilty plea of automobile theft. The objection is lodged on the premise that defendant was only fifteen years of age at the time of the Oklahoma conviction and therefore it cannot be used as a basis for the imposition of K. S. A. 21-107a. The state points out, and the defendant acknowledges, that under the rule announced in State v. Engberg, 194 Kan. 520, 400 P. 2d 701, cert. den. 383 U. S. 921, 15 L. Ed. 2d 676, 86 S. Ct. 899, the validity of the Oklahoma judgment is not subject to collateral attack in this proceeding. However, because of the nature of the objection raised we have examined the merits thereof.
It is true, of course, an accused of the age of fifteen years under the law of this state, could not be convicted of a felony under such circumstances as surrounded the Oklahoma conviction. An examination of the Oklahoma Code reveals that with reference to the disposition of a delinquent child, Title 10 Okl. St. Ann. §112 provides in part as follows:
“. . . The court may, however, in its discretion, cause such child to be proceeded against in accordance with the laws that may be in force governing the commission of the crime.”
The Oklahoma statute referred to was construed in an exhaustive opinion in Ex Parte Lewis, 85 Okl. Cr. 322, 188 P. 2d 367. In substance the opinion holds that under the statutory provision quoted a child who has been adjudged delinquent by reason of the commission of a crime and whose competency to know the wrongfulness of acts has been determined, may be prosecuted for such crime in a court of competent jurisdiction. The record before us discloses the defendant was prosecuted for a crime amounting to a felony (sentence was three years imprisonment in the state penitentiary) in conformity with Oklahoma statutory and case law. There is no reason, therefore, to question the validity of the Oklahoma conviction on the grounds advanced.
The fact that he could not have been convicted of a crime in this state at the time does not avail defendant. Our holding in the recent case of Tyrell v. State, 199 Kan. 142, 427 P. 2d 500, resolves the issue. It was held:
“Evidence of prior convictions by a court of a sister state of felonies, as defined by a statute of the sister state, may be properly received by a trial court of this state when imposing sentence under K. S. A. 21-107a.” (Syl. fl.)
We find no error in the record in this case which may be said to have prejudiced the substantial rights of defendant. The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
This is an action by a real estate agent to recover from the landowner a real estate commission arising out of the sale of a farm.
The jury returned a verdict in favor of plaintiff for $640.00 — the amount sued for. The verdict was approved and judgment was entered accordingly.
Defendant real estate owner has appealed, and although variously stated — her real contention is that the record contains no substantial competent evidence to support the verdict.
The province of this court, therefore, is not to search the record for evidence which, if believed, would have compelled a contrary result. Our duty is to ascertain if there is any substantial competent evidence to support the verdict — and if there is — then matters pertaining to the facts are laid at rest and are conclusive on appeal. Curry v. Stewart, 189 Kan. 153, 155, 368 P. 2d 297.
Highly summarized — plaintiff's evidence was substantially as follows:
Plaintiff, who held a Kansas real estate license, lived in Brown county. Defendant, Edna Weidman, lived in St. Joseph, Missouri, and owned a farm in Doniphan county. About the first of May, 1964, plaintiff went to defendant’s home to discuss the listing of her farm with him. They entered into an oral agreement whereby defendant listed the farm with plaintiff for an agreed commission of 2 percent. Following this, plaintiff made efforts to sell the farm and advertised it in the Highland newspaper. On or about October 20, 1964, plaintiff contacted Theodore Sinker and inquired if he would be interested in buying the farm. Sinker replied in the affirmative, and on the next day plaintiff went to Sinker’s home to see him about it. Sinker was not at home', and on the following day plaintiff returned and they discussed the matter. Plaintiff advised Sinker that the selling price was $34,000.00, but the most Sinker offered was $32,000.00.
About a week after his negotiations with Sinker, plaintiff contacted defendant and told her of Sinker’s offer. She agreed to meet plaintiff on the following Monday at the bank in Highland. At this meeting she advised plaintiff that she was undecided about selling the farm and that Sinker’s offer of $32,000.00 was not enough.
Several days later plaintiff received a letter from defendant in which she stated that she was taking the farm off the market. Shortly thereafter plaintiff learned that defendant and Sinker had entered into their own negotiations and that she had sold the farm to him for the sum of $32,000.00.
It is quite true that defendant’s evidence was in many respects contrary to what has been related, and placed a different version on just what transpired in the negotiations and dealings leading up to the sale of .this farm. In passing, it is noted, however, that defendant testified that under her agreement with Sinker for the sale and purchase of the farm he was to pay all of the expenses, such as abstracting, and that—
“Mr. Sinker would have to pay the real estate commission if one is due.”
Be that as it may — with appellate review limited to the question whether there is any substantial competent evidence to support the verdict — a consideration or recital of defendant’s evidence which contradicted that of plaintiff would serve no purpose (Bruington v. Wagoner, 100 Kan. 439, Syl. 2, 164 Pac. 1057).
With respect to real estate commissions, the parties concede the rule to be as stated in the recent case of Hiniger v. Judy, 194 Kan. 155, Syl. 1, 398 P. 2d 305, in which it was said that where a real estate broker is employed to find a purchaser for land, the general rule is that he is entitled to a commission if he produces a buyer who is ready, willing and able to purchase upon the proffered terms or upon terms acceptable to the principal, and if he is the efficient and procuring cause of a consummated deal.
As pointed out by plaintiff, there are various aspects of the rule— when and as applied to the circumstances of a given case. By way of illustration, see Dreisback v. Rollins, 39 Kan. 268, 18 Pac. 187; Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104; Grimes v. Emery, 92 Kan. 911, 141 Pac. 1002, and DeYoung v. Reiling, 165 Kan. 721, 199 P. 2d 492, all of which were discussed in Hiniger v. Judy, above. Also see Collopy v. Field, 127 Kan. 68, Syl. 2, 272 Pac. 99.
What was said and held in the foregoing cases was summarized in this instruction to the jury:
“A real estate agent employed to sell land has earned and is entitled to his commission when he has procured a purchaser who is ready, willing and able to buy the land at the agreed price' which the owner agrees to take, then the land owner is not relieved of the obligation to pay the commission if the owner finally closes the deal or sells the land at a price less than that which she gave the real estate agent, provided that the efforts of the real estate agent were the proximate, predominating and procuring cause of the sale and if the sale is made to the purchaser procured by the real estate agent. It is not necessary that the real estate agent should actually close the deal or be present when the contract or other papers are signed if the sale was made through his efforts. In any case before the real estate agent is entitled to his commission, his efforts must be the proximate, predominating and procuring cause of the sale without which the sale would not have been made. Then in this case if you find from a preponderance of the evidence' that the plaintiff performed the acts as set out above then he would be entitled to recover the sum of $640.00 as his commission. If you do not so find then your verdict should be for the defendant.”
Defendant concedes the instruction is a correct statement of the law — but contends there simply is no evidence to establish that plaintiff produced a buyer who was ready, willing and able to purchase upon the proffered terms or upon terms acceptable to defendant, and that he was the efficient and procuring cause of the consummated deal.
The contention cannot be sustained. There was evidence that plaintiff was the procuring cause of negotiations being carried forward between defendant and Sinker. It was plaintiff who produced the ultimate purchaser, and there appears to have been no new or intervening cause. From all of the circumstances the jury was entitled to draw the inference that the subsequent dealings between defendant and Sinker were an attempt to avoid payment of a commission.
In an opinion on rehearing of the Grimes case, above, found at Grimes v. Emery, 94 Kan. 701, Syl. 1, 146 Pac. 1135, it was held that the question whether a real estate agent is the procuring cause of the sale of a farm is one of fact to be determined by the jury in the light of all the circumstances leading up to the final negotiations between the vendor and purchaser.
We find no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from a conviction on two counts of perjury (K. S. A. 21-701). The charges arose from statements made by the defendant, Lyle Elder, while testifying as a witness for the defense during the course of a criminal prosecution reported in State v. Darling, 197 Kan. 471, 419 P. 2d 836.
Elder, a labortaory technologist, was director of Elder Clinical Laboratory in Wichita. At Dr. Darling’s trial on charges of procuring an abortion or miscarriage Elder gave, testimony concerning a pregnancy test performed by him at his laboratory at Dr. Darling’s request. In testifying about his educational background and experience which qualified him to perform such test, Elder stated he had received a B. S. degree in chemistry and bacteriology from Wichita University and that he had attended medical school at the Univer sity of Kansas for two years. It is these statements with reference to his attendance at the two universities that form the basis for the charges in the present case.
At the trial evidence was presented by the registrars of both universities that no record could be found to indicate Elder’s enrollment or attendance at either institution. The trial court instructed the jury as a matter of law that the allegedly false statements made by Elder concerning his educational background were material to the issues in the trial of Dr. Darling.
The materiality of the statements is challenged and is the principal point of this appeal.
In order to constitute perjury under the statute it is essential that the false testimony be on a material matter. (K. S. A. 21-701; State v. Smith, 40 Kan. 631, 20 Pac. 529.) The false statements relied upon, however, need not bear directly on the ultimate issue to be determined; it is sufficient that they relate to collateral matters upon which evidence would have been admissible. (State v. Fail, 121 Kan. 855, 250 Pac. 311; State v. Adams, 119 Kan. 509, 240 Pac. 955.)
In State v. Whitlock, 138 Kan. 602, 27 P. 2d 262, it was stated:
“ . . The test is whether the statement made could have influenced the tribunal on the issue before it. It is sufficient if it is material to any proper matter of inquiry, and is calculated and intended to prop or bolster the testimony of a witness on some material point, or to support or attack the credibility of such a witness. It may be laid down as a general rule that any testimony which is relevant in the trial of a case, whether to the main issue or some collateral issue, is so far material as to render a witness who knowingly and willfully falsifies in giving it guilty of perjury. . . ” (pp. 605, 606.)
The materiality of Elder’s statements now in question was considered by this court in the Darling opinion (p. 482). In holding that the statements were properly subject to collateral inquiry, and that impeaching rebuttal evidence was admissible, we said:
“. . . If the subject of collateral inquiry is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material by giving weight and probability to, or detracting from, the testimony of a witness thereto, it is sufficient and makes the testimony material. . .
It was emphasized therein that Elder’s testimony relating to the negative results of the pregnancy test was vital to Dr. Darling’s defense in that it tended to contravene the required intention of the doctor to commit the act for which he was charged. The entire defense was premised on the fact that the doctor would first obtain a negative pregnancy test on the woman involved before he would proceed to treat her for amenorrhea. The testimony of Elder was essential to support that defense. He gave testimony pertaining not only to the results but also to the accuracy and reliability of the test. His qualifications were extremely relevant to the weight and credibility to be given his testimony concerning the results obtained. It can only be concluded that his fabrications were calculated and intended to strengthen his credibility as a witness in the eyes of the jury. The statements were material and became proper basis for prejury charges. Their materiality was properly determined as a question of law by the trial court. (State v. Bingham, 124 Kan. 61, 257 Pac. 951.)
Elder also complains that the trial court erred in charging the jury that “corruptly” as used in K. S. A. 21-701 “means intentionally done with improper motives.” We find defendant’s argument on the point utterly devoid of merit.
The definition is supported by language in our decision in State v. Kennedy, 82 Kan. 373, 108 Pac. 837, and we decline to say that the false swearing must be done with the expectation of some pecuniary gain or advantage, as suggested by the defendant. The word “corruptly” has reference to the motive of the witness and the fact that the swearing was intentionally false, rather than to the means by which his testimony was obtained. (State v. Reed, 62 N. M. 147, 306 P. 2d 640; 70 C. J. S., Perjury §74; 3 Wharton’s Criminal Law and Procedure §1292.) Moreover, the definition as given substantially corresponds to that requested by the defendant himself, so he is not now in a position to claim error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an award determining the rating for permanent partial disability in a workmens compensation case.
It would appear that the claimant was an illiterate laborer 47 years of age. He was employed as a common laborer in construction work. He contends that on July 19, 1963, he was engaged in unloading a truck of sacks of cement weighing some 96 pounds. Sometime between 9 and 10 o’clock a. m. he picked up a sack to hand to a co-worker, Mr. E. L. Gray. As he turned, he stepped into a hole in the bed of the truck causing a catch in his back and a feeling of paralysis in his right leg. He dropped the sack of cement and stated to Mr. E. L. Gray that he had hurt his back. He later mentioned to the foreman that he had hurt his back but would finish the day if it did not get worse. He finished the workshift, went home and to bed. He was unable to arise the next morning. His sons took him to the Lutheran Hospital in Hoisington, Kansas, where he was treated by Dr. Robert Moore.
Claimant was awarded 22 weeks of temporary total disability and the balance of . the compensable weeks at 50 per cent permanent partial disability as compensation under the Workmens Compensation Act. The award was made by the examiner, approved by the director and adopted by the district court on appeal, except for an increase in the number of weeks of temporary total disability.
The respondent and his insurer have appealed to this court.
Appellants first contend that the evidence was insufficient to prove a compensable injury.
The contention has no merit. Both appellee and his co-worker testified that the injury occurred substantially in the manner we have heretofore stated. Appellants state:
“Conflicting with claimant’s testimony is the testimony of his supervisor, McEachern. He stated that claimant was not unloading cement sacks on July 18 or 19; that the only truck that had holes into which a man could step was not used for hauling cement, and that the truck used for hauling cement was used exclusively for the hauling of water on the 19th. . . .” (Emphasis supplied.)
Without delving into the evidence further on this point, it will suffice to say that this court does not concern itself with conflicting evidence in a workmen’s compensation case. We have so held in a long line of cases. In one of the more recent, Jones v. City of Dodge City, 194 Kan. 777, 778, 402 P. 2d 108, we stated:
“Under K. S. A. 44-556, the appellate jurisdiction of this court in workmen s compensation cases is limited to reviewing questions of law only. Whether the district court’s judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. (Holley v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846, 148 A. L. R., Anno., 1131; Coble v. Williams, 177 Kan. 743, 747, 282 P. 2d 425; Bowler v. Elmdale Developing Co., 185 Kan. 785, 347 P. 2d 391.) In reviewing the record to determine whether it contains substantial evidence to support the district court’s factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. . . .” (See, also, Lees, Administrator v. White, 197 Kan. 118, 415 P. 2d 272.)
The district court’s determination as to whether a claimant’s disability was due to an accident arising out of and in the course of his employment will not be disturbed on appellate review when there is substantial evidence to support it. (Callahan v. Eby Construction Co., 192 Kan. 814, 391 P. 2d 315.)
The appellants further contend that the court did not apply the rule of law applicable to disability rating under the facts in the case and erred in finding claimant suffered fifty per cent permanent partial disability.
The evidence covering the disability rating, other than claimant’s lay testimony of his inability to do heavy work, consisted of testimony of three medical experts.
Dr. Coffey’s testimony on behalf of claimant is narrated in part as follows:
“. . . It was my opinion that Mr. Gray had a 15 per cent permanent partial bodily disability as an impairment of function. This was based upon reasonable medical certainty and I believe the condition to be permanent. I do not believe that Mr. Gray could return to work in construction where he would be required to lift 90 to 100 lb. sacks of cement and move them from one place to another consistently enough to satisfy an employer, because he would have too much trouble with his back. If he tried to do this, he would aggravate his degenerative arthritis and his back would get gradually worse. I don’t believe I would pass Mr. Gray from the standpoint of physical examination for work in construction labor. I felt that Mr. Gray was trying to be honest with me in describing his complaints. The impairment of function rating is just Mr. Gray’s physical disability per se. It relates nothing to work. My rating of 15 per cent made no attempt to equate that impairment of function to Mr. Gray’s ability to work in construction work.”
Dr. Hensley’s testimony on behalf of appellants is narrated in part as follows:
“I felt at the time I saw him he had a disability of perhaps 15 to 20 per cent, but I am unable to determine how much of that results from lifting the cement and how much from lifting the hay. I think one would anticipate that he would improve to perhaps 5 to 10 per cent permanent rating.”
He also testified:
“A. I think that he will improve, yes.
“Q. To the same extent as the average figure which you have cited?
“A. Yes, I think so. Even if he does improve, if he were presented as a question as to whether he should go back to heavy manual labor, I would have some reservations about that.”
Dr. Brown testifying for appellants stated that he felt “he [claimant] had a low back instability secondary to degenerative disc disease and a 5 per cent permanent disability.” His testimony was further narrated:
“. . . I assume that Mr. Gray’s pain is coming from pain receptors in the soft tissues around this unstable joint. I think the injury caused a stretching or partial tearing of the ligaments that hold the joint together. Ligaments heal by the formation of scar tissue. If this man s sprain was severe enough it could increase his back instability. I wouldn’t recommend that Mr. Gray do heavy work and that he avoid heavy lifting. This man might do well lifting for instance a 100 lbs., if he had his mind directly to the task he was performing. On the other hand, he might lift less than 50 lbs. and while thinking about something else not having all of his muscles coordinated, he might not get by with that. I don’t feel like I can say he can lift 50 or 100 lbs. I think it depends on how he does it rather than the weight. I wouldn’t pass this man on an examination for construction labor.
“I believe this man would have a 15 per cent disability on the general labor market.
“If I were to rate him for construction labor the disability, I suppose, would be much greater than 15 per cent. The lifting of a heavy weight that is bulky such as cement and which moves within the bag would make guarding against another injury harder.”
The injury to claimant’s back is permanent in its nature- A consequent reduction to a lower economic status was fully disclosed by the evidence. There is direct proof that claimant can never retrieve his former capacity. It was the opinion of the experts that claimant could not return to his employment as a construction laborer or do similar work which required the lifting of heavy objects.
In the recent case of Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457, we held in the first paragraph of the syllabus:
“The correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured. (Following Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414.)”
From the evidence which we have highly summarized the district court found:
“The Claimant, as a result of said accident and injury, has been to a great extent eliminated from the labor market where manual labor is involved and this problem is accentuated by the Claimant’s illiteracy.”
The court concluded that the claimant suffered fifty per cent permanent general disability to the body as a whole.
This court is bound by the trial court’s findings under the evidence in this case. As has previously been stated, on appellate review of a workmen’s compensation case, this court does not weigh the evidence and in determining its sufficiency it must consider the evidence in the light most favorable to the prevailing party.
What has been said should dispose of this controversy. However, appellants seriously contend that this court has in effect held that a claimants disability is to be measured by his disability to obtain work in the open labor market and not by his disability for performing labor of the same type he was performing prior to his injury. They cite in support of their contention Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012; Smith v. Jones, 185 Kan. 505, 345 P. 2d 640; Cody v. Lewis & West Transit Mix, 186 Kan. 437, 351 P. 2d 4; Hallett v. McDowell & Sons, 186 Kan. 813, 352 P. 2d 946; Taber v. Tole Landscape Co., 188 Kan. 312, 362 P. 2d 17; Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P. 2d 278, and Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414. We do not find the cases to be contrary to the rule quoted above from the Mooney case just decided.
In support of their contention that the test for disability is limited to ability to obtain work in the open labor market regardless of the type of work, appellants quote from page 203 of the Daugherty case where we stated:
“. . . Permanent partial disability of an injured workman based upon substantial medical testimony is compensable notwithstanding he may earn as much or more after his injury in the same or other employment. The rule is based upon the fact that partial general body disability is a definite loss to the injured workman, and is a deterrent to his obtaining and retaining work in the open labor market (Beal v. El Dorado Refining Co., supra; McGhee v. Sinclair Refining Co., supra; Rupp v. Jacobs, supra; Davis v. Braun, supra).”
The quotation must be read in connection with a prior paragraph where we stated on page 202 of the Daugherty case:
“. . . ‘Disability’ as used in G. S. 1955 Supp. 44-510 (3) (c) (24) is the inability of the workman to perform work he was able to perform prior to his injury, and is the test by which compensation is measured for injury arising out of and in the course of his employment (Beal v. El Dorado Refining Co., 132 Kan. 666, 672, 296 Pac. 723; McGhee v. Sinclair Refining Co., 146 Kan. 653, 659, 73 P. 2d 39; Rupp v. Jacobs, 149 Kan. 712, 717, 88 P. 2d 1102; Davis v. Braun, 170 Kan. 177, 183, 223 P. 2d 958). . . .’’
The Smith, Code and Hallet cases, supra, cited by appellants, followed the ruling in the Daugherty case to the effect that the criterion for compensation is the inability of the workman to perform work he was able to perform prior to his injury.
It must be understood that in the four cases just mentioned the injured workman had returned to work at the same or greater compensation that he was receiving before his injury, and a ruling was being announced by which the claimant could be compensated for the disabling injuries preventing him from performing work he was able to perform prior thereto and which would handicap him in procuring employment in the open labor market in the future. Although the injured employee may presently be receiving equal or better compensation, it could not be assured that he would permanently retain such employment and would never again have to seek employment in the open labor market. In the case now before us for determination, and in the following cases which we considered, the injured employee could neither do the same or similar work that he could do prior to his injury nor earn the same amount of compensation.
In Taber v. Tole Landscape Co., supra, the court had under'consideration the disability rating where the claimant, due to his injury, was unable to do manual labor, but after his injury received a Bachelor’s degree from the Kansas State College at Pittsburg and obtained employment as a public school teacher. The district court allowed him 66% per cent disability. In disposing of the case we stated at page 316 of the opinion:
• • Our conclusion is that the court placed too much emphasis on the fact claimant had secured employment in another line of work and did not fully consider the evidence relating to his inability to perform work he was able to perform prior to his injury. . . .”
In the Gutierrez case, supra, we held in the third paragraph of the syllabus:
“Loss of earning power of a workman may result from his inability to obtain work as well as from inability to perform procurable work on the open labor market due to the impairment of his physical fitness, and the words ‘obtaining and retaining work on the open labor market’ mean the ability to obtain and retain work of the same kind and character that the workman was able to perform prior to his injury.”
Although the language used may not have always been of the same exactness, we find nothing in the cases considered which detract from the rule announced in the recent case of Puckett v. Minter Drilling Co., supra, and followed in Mooney v. Harrison, supra, to the effect that the disability rating of an injured employee is the extent to which his ability has been impaired to procure in the open labor market work of the same type and character he was able to perform before he was injured, and to perform such work and retain such employment.
The disability rating allowed met the test herein announced.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
This is a quo warranto action to oust the defendant Floyd Schroeder from the office of county commissioner of Sedgwick county, third district. It was instituted pursuant to K. S. A. 60-1205, et seq., which provide for the forfeiture of a public official’s office for willful misconduct in office, willful neglect to perform any duty imposed by law, or violation of any penal statute involving moral turpitude.
The petition, as amended, alleged six separate claims for relief as grounds for removal: (1) Conflict of interest sales of material to Sedgwick county under the name K & L Service & Supply Company; (2) conspiracy with certain vendors to defraud the county in connection with sales of merchandise; (3) false statement in reelection campaign; (4) fraudulent inventory concealing shortages of county property; (5) refusal to testify at an inquisition; and (6) conflict of interest sales of material to the county under the name L & S Equipment Company, together with short delivery of mer chandise and excessive prices charged. The defendant filed an answer denying the factual allegations of misconduct, whereupon this court appointed Honorable Perry Owsley, a qualified attorney and a former district judge of this state, as its commissioner to hear evidence, make findings of fact and conclusions of law, and report to the court.
After evidence had been heard by the commissioner but prior to the filing of his report, plaintiff moved to reopen the proceeding and present evidence in support of a seventh claim for relief based upon its allegation defendant had requested and accepted gratuities from certain vendors doing business with Sedgwick county and, during his second term, had testified falsely as to his connection with these vendors. This court referred the motion to the commissioner for disposition. The commissioner declined to reopen the case in view of his findings, conclusions and recommendation made with respect to two of the other grounds for relief.
The commissioner’s findings (omitting transcript and exhibit citations) and conclusions so far as necessary for decision here are as follows:
“Facts Pertaining to the Sixth Claim for Relief
“1. The findings will generally follow the chronology of events, which requires that the facts pertaining to the Sixth Claim for Relief be set out first. Otherwise, the claims for relief will be taken up in their numerical sequence, which conforms to the chronological sequence.
“2. The defendant was first elected County Commissioner of Sedgwick County, Kansas, in the general election of November, 1960. His first term in office commenced Monday, January 9, 1961. The defendant was re-elected to the same office in the general election of November, 1964. His first term in office expired and his second term in office commenced Monday, January 11, 1965. The defendant’s second term as commissioner will expire in January, 1969 (K.S.A. 19-202).
“3. For approximately two years prior to first taking office as County Commissioner, the defendant engaged in business as a merchandiser of fire fighting equipment and related devices. The majority of his business was conducted through a sole proprietorship named Wichita Fire Equipment Co. From time to time the defendant sold some items of equipment under the name L & S Equipment Co. This company was, in reality, nothing more than a trading name. It did not purchase or maintain any separate inventory, books of account, or bank account. The merchandise which L & S Equipment Co. sold was actually purchased by and was a part of the inventory of Wichita Fire Equipment Co., and its operating funds appear to have been the funds of Wichita Fire Equipment Co. All receipts of L & S Equipment Co. were deposited directly in the bank account of Wichita Fire Equipment Co.
“4. Wichita Fire Equipment Co. regularly sold items of equipment to various departments of Sedgwick County. It also sold merchandise or bid for sales to other political subdivisions and to industrial plants and other volume users of fire fighting equipment. L & S Equipment Co. sold some items of merchandise to Sedgwick County late in 1959 or early 1960, and again in late 1960 and early 1961.
“5. In the middle of December, 1960, the defendant became interested in acting as a distributor for the sale of mobil utility generators. This device was designed to replace the original equipment generator on trucks and automobiles and supplied direct current to operate the vehicle. It could also be used to generate electric current to operate electrically powered tools designed to operate on the conventional electrical supply ¡of 110 volts, alternating current.
“6. In the latter part of December, 1960, after his election and shortly before taking office on January 9, 1961, the defendant contacted officers or employees of Sedgwick County in an effort to sell utility generators and other items of equipment to the county. Records produced from the files of the County Auditor disclose that the defendant carried out the following transactions with Sedgwick County under the trade name L & S Equipment Co.:
“Four (4) generators were sold to the Sedgwick County Fire Department. The purchase requisition for this sale was dated December 30, 1960. The invoice was dated December 31, 1960. The purchase order claim voucher was dated January 9, 1961, and was signed and certified on behalf of the vendor under date of January 11, 1961. The merchandise was paid for by County Warrant issued February 1, 1961, in the amount of $1,078.20.
“One (1) generator was sold to the Lakes and Parks Department. The purchase requisition, written out by the department head requesting the purchase of the item of equipment by the County, was correctly dated January 9, 1961, but was backdated to December 31, 1960 by the County Auditor in order to charge the purchase to the previous year’s funds. The vendor’s invoice was also dated December 31, 1960. The purchase order claim voucher was dated January 11, 1961, and was signed and certified on behalf of the vendor under date of January 14, 1961. The merchandise was paid for by County Warrant dated February 1, 1961, in the amount of $269.55.
“Five (5) generators were sold to Sedgwick County Engineering Department. The original purchase requisition was dated January 4, 1961. The vendor’s invoice was dated February 6, 1961. The purchase order claim voucher was dated February 13, 1961, and was signed and certified on behalf of the vendor on February 17, 1961. Payment for these generators and other items of equipment sold by the defendant at the same time, was made by County Warrant dated March 1, 1961, in the amount of $1,871.67.
“7. Some time late in December, or early in January, 1961, the defendant came to the office of the County Purchasing Agent and instructed the purchasing agent to prepare the original purchase requisitions for the sale of four (4) generators to the County Fire Department and five (5) generators to the County Engineering Department. The purchasing agent prepared and signed the purchase requisitions. At the time he did so the purchasing agent had not received any request or instructions from the respective department heads to purchase the generators or issue requisitions. All of the information shown in tire requisitions was given to him by the defendant. The defendant took the requisitions prepared by the purchasing agent, presumably for the purpose of initiating the procedure necessary to authorize and carry out the sale of these items of merchandise to the County.
“8. That three of tire generators that were sold to the Sedgwick County Fire Department were not delivered.
“9. The manufacturer’s schedule of recommended prices for mobil utility generators was: Retad, $249.50; Commercial Net, $199.50; Dealer Cost (purchase of 5 or more), $149.50; Franchise Distributor Cost (purchase of 25 or more), $119.50. Buyers of this equipment such as counties, contractors, or industrial users, would normally purchase the equipment at the commercial net price of $199.50. That price would have been the appropriate price to be paid by Sedgwick County, according to the suggested schedule of prices by the manufacturer. The defendant sold each of the generators purchased by Sedgwick County at a price of $299.50 less 10% discount, resulting in a net price of $269.55, twenty dollars above the suggested retail price. The defendant knew or should have known the schedule of recommended prices by the manufacturer and the proper price for county purchases at the time he priced the generators sold by L & S Equipment Co. to the County. He did, in fact, know the manufacturer’s schedule of prices not later than February 22, 1961, when he discussed the schedule of prices with Herbert W. Bowles, the manufacturer’s sales representative from whom the defendant purchased a substantial quantity of these devices. Defendant appears to have paid the manufacturer’s sales organization various prices for these units ranging from $119.50 to $159.50. The usual price paid by tire defendant seems to have been $149.50. The defendant made a profit of $120.00 or more on each unit actually sold and delivered to the County. The normal installation cost for mobil utility generators is negligible.
“10. The sales by the defendant to the County of ten mobil utility generators and other merchandise reflected by plaintiff’s exhibits 13 through 37, totaled $3,381.42. All acts leading up to the sales were performed by the defendant after he had been elected County Commissioner. While negotiations for these sales may have taken place, and in some cases purchase requisitions may have issued prior to January 9, 1961, the date on which the defendant took office, the sales were not completed transactions at the time the defendant assumed the duties of the office of County Commissioner on January 9, 1961. The filing and approval of the final purchase order claim vouchers bearing the vendor’s certification as to the delivery of the merchandise and the correct and just amount of the claim all occurred after the defendant had taken office.
“11. In January, 1961, shortly after he took office, the defendant was advised by Howard Scott, another member of the County Commission, that he (Schroeder) could not sell merchandise to the County and that Commissioner Scott would refuse to approve any requisitions in which Wichita Fire Equipment Co. appeared as vendor. The purchase requisitions and claim vouchers for the mobil utility generators and other equipment sold to the County at about the same time, were made out in the name L & S Equipment Co., as vendor. The vendor’s certificate on the claim voucher was signed on behalf of L & S Equipment Co. by the defendant’s nephew, Daniel Lott, who was then a minor employed by Wichita Fire Equipment Co. Lott had no interest in L & S Equipment Co. and had taken no active part in the sale of the generators to the County. At the time of this conversation the defendant did not inform Scott of his ownership of L & S Equipment Co. or his business and family relationship with Daniel Lott. Commissioner Scott was not aware of these facts, nor was he aware, later in 1961, of the defendant’s connection with the K & L Service & Supply Co. transactions carried out by Lott with Sedgwick County.
“12. That the acts complained of in paragraph numbered 1 and 2 of the Sixth Claim for Relief all occurred during the defendant’s first term in office and prior to the date of his being sworn into office upon his second term commencing January 12, 1965. When defendant testified before the Grand Jury that he had not sold any items to Sedgwick County after he ‘was elected’, he meant after he was sworn in or took office.
“13. Defendant sold the same type mobil utility generators that he sold the County to other purchasers and industries such as Southwestern Bell Telephone Company for the same price that was paid by the County.
“14. In 1960 the County Department Heads in many instances were making their own purchases (purchase requisitions) and the Purchasing Agent was not required to make the purchase as it had already been made and delivery often made. The Purchase Order Voucher is subsequent to the Purchase Requisition in date and sequence.
“15. Ralph Gilchrist, County Counselor and Attorney at Law, advised defendant that he could be paid for any sales made before being sworn into office, but that he should not have any further contractual relationship with the County.
“16. Charles Schnug, Purchasing Agent, and Ralph Gilchrist, County Counselor, had knowledge in December of 1960 that Floyd Schroeder, the defendant, owned L & S Equipment Company.
“Facts Pertaining to the First Claim for Relief
“17. A short time after he took office as County Commissioner, the defendant sought the advice of the County Counselor on whether his proprietorship, Wichita Fire Equipment Co., could lawfully sell fire fighting equipment at wholesale to vendors who might thereafter resell some of the equipment to Sedgwick County. The defendant was advised in substance that Wichita Fire Equipment Co. could enter into such transactions if, in fact, it was acting as a bona fide wholesaler, without knowledge of the identity of the ultimate purchaser.
“18. Commencing in June, 1961, Daniel Lott, the defendant’s nephew and a former employee of Wichita Fire Equipment Co., commenced to sell and service fire fighting equipment under the name K & L Service and Supply Co. From June to December, 1961, Lott carried out several transactions with Sedgwick County for which he received payments totaling $1,442.59. At the time of these transactions, Lott was seventeen years of age and had other employment. Other than a few hand tools, Lott had no equipment with which to service fire fighting equipment. He maintained no stock-in-trade or in ventory, no regular place of business or business telephone, and no business bank account. It was Lott’s practice to fill orders for merchandise directly out of the inventory of Wichita Fire Equipment Co. and to recharge and service fire fighting equipment by use of the equipment and business premises of Wichita Fire Equipment Co.
“19. Lott paid Schroeder for items sold to Sedgwick County out of the inventory of Wichita Fire Equipment Co. on a basis of cost, plus 10%. Lott did not pay Schroeder until after he had received payment from Sedgwick County. Apparently all payments by Lott to Schroeder were made in cash and no written records or memoranda of tire amounts paid were kept or preserved. The defendant Schroeder was acquainted with Lott’s activities through K & L Service and Supply Co., and knew that some of the items which Lott withdrew from the inventory of Wichita Fire Equipment Co., were to be resold and delivered to Sedgwick County.
“20. The transfers of merchandise in the inventory of Wichita Fire Equipment Co. to Lott for sale to the County were not bona fide wholesale transactions made in the normal course of business.
“21. All of the transactions between K & L Service & Supply Company and Sedgwick County occurred during the year 1961 and during the defendant’s first term in office.
“Facts Pertaining to the Second Claim for Relief
[Here the commissioner found the evidence insufficient to support the charges.]
“Facts Pertaining to the Third Claim for Relief
“27. As to the alleged misconduct of the defendant with reference to statements contained in tire defendant’s campaign letter, your commissioner finds that the statement made by tire defendant that T do not own or at any time that I have been a commissioner have I ever owned any stock, shares or interest or any kind in any business whatsoever’ was false.
“Facts Pertaining to the Fourth Claim for Relief
[Here the commissioner founds the evidence insufficient to support tire charges.]
“Facts Pertaining to the Fifth Claim for Relief
[Here the commissioner found the defendant did, upon advice of counsel, at an inquisition convened pursuant to K. S. A. 62-301, on April 15, 1966, refuse to testify upon the ground his answer might tend to incriminate him, but that tire defendant did testify on three subsequent occasions and did not claim the privilege against self-incrimination.]
“Commissioner’s Conclusions of Law
“4. The transactions carried out by tire defendant with Sedgwick County under the name L & S Equipment Co. involving the sale of mobil utility generators and other equipment, were improper and unlawful transactions in which the defendant violated the law, both as a county commissioner and as a vendor to the county, by reason of the fact that tírese items of equipment were excessively priced and on one occasion a ‘short’ delivery made.
“5. The transactions carried out by Daniel Lott with Sedgwick County under the name K & L Service & Supply Co., were unlawful as to the defendant Schroeder because they represented conflict of interest transactions in violation of K. S. A. 21-1608. In addition, K & L Service & Supply Co. sold and received payment for a mobil utility generator which was priced in excess of the legal and ordinary price in violation of K. S. A. 19-242.
“6. While acts of misconduct and neglect of duty in a previous term ordinarily do not constitute grounds for removal from office in a subsequent term, the rule is otherwise where the misconduct or neglect of duty continues into the subsequent term. State, ex. rel. v. Harvey, 148 Kan. 166.
“7. The law imposed upon the defendant a continuing duty to refund to Sedgwick County the monies unlawfully obtained by him through the L & S Equipment Co. and K & L Service & Supply Co. transactions (K. S. A. 19-221, 232, 233, 242, 243). The' defendant’s failure to respond to that duty, and make restitution of the money wrongfully collected from the county, even to the present date, constituted willful misconduct and neglect of duty in office continuing to the defendant’s present term in office. State, ex. rel. v. Harvey, supra.
“8. In order to justify removal of the defendant from office in his present term for acts of misconduct and neglect of duty committed during his previous term, it is not essential that the evidence show concealment in the sense, or to the degree, that concealment of a crime must be established or shown by the evidence in order to toll the statute of limitation. State, ex rel. v. Harvey, supra.
“9. Your commissioner finds that the false statement made by the defendant as alleged in the Third Claim for Relief is not willful misconduct justifying ouster.
“12. Your commissioner finds that the state cannot oust a public official for taking the Fifth Amendment when the public official on three subsequent occasions testifies under oath without claiming the privilege.
“13. On February 20th, 1967, the plaintiff filed a motion requesting that the trial be reopened to receive further evidence in support of the six claims for relief now before the court and for leave to file a Second Amended Petition setting forth a Seventh Claim for Relief and that the State be permitted to introduce evidence in support of said claim and your commissioner, after considering said motion, finds that the same should be summarily denied in view of the recommendations made in the next paragraph hereof.
“14. It is the decision and recommendation of your commissioner that judgment be entered removing the defendant of the office of County Commissioner of Sedgwick County, Kansas, based on the Sixth and First Claims for Relief.”
After the filing of this report and upon plaintiff’s motion this court entered an order pursuant to K. S. A. 60-1207 suspending defendant from office pending final determination of the action.
The. contentions of the parties now are as follows: Plaintiff urges the commissioner correctly determined questions of fact and law as to the first and sixth claims for relief and that he properly recommended ouster as to them; plaintiff contends the commissioner should have made findings of fact and conclusions of law recom mending defendant’s ouster on the fifth claim for relief based on defendant’s action in claiming his privilege against self-incrimination at the April 15, 1966, inquisition; if ouster be not sustained as recommended on the first and sixth claims for relief, then plaintiff urges its motion to reopen the case to file a seventh claim for relief and present evidence thereon should be granted. Plaintiff does not contest the commissioner’s findings and conclusions with respect to the second, third and fourth claims for relief.
Defendant objects to the adverse findings of fact and conclusions of law and asks they be disapproved and that judgment be entered in his favor.
Defendant is charged with misconduct in office and willful neglect of duty in the office of county commissioner. We examine some of the duties and responsibilities of that office, briefly summarized, as follows:
The powers of a county as a body politic and corporate are exercised by its board of county commissioners (K. S. A. 19-103).
County commissioners are empowered to establish regulations and orders as to the use of county property; to examine and settle all accounts for receipts and expenses of the county and to allow and pay all accounts chargeable against the county; to represent the county and to have the care of its property and the management of its business and concerns in all cases where no other provision is made by law (K. S. A. 19-212).
No account is to be allowed by the board of county commissioners unless it separately states each item and is certified as being just, correct, due and unpaid. The board may, in its judgment, disallow a certified claim and demand further evidence in support of the claim (K. S. A. 19-221).
The board of county commissioners has exclusive control of all expenditures of the county (K. S. A. 19-229).
K. S. A. 19-242 makes it unlawful for the board of county commissioners to allow or pay any sum on an account, claim or demand against the county greater “than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for . . . materials furnished.”
K. S. A. 19-243 provides that a violation of 19-242 by any county commissioner is a misdemeanor punishable by a fine of not less than ten dollars nor more than ten thousand dollars and by removal from office.
K. S. A. 21-1608, our so-called conflict of interest statute, provides that all county and state officers are “prohibited from taking any contract, or performing or doing or having performed or done for their own profit, any work in and about the office holden by them, or in or about any work over which they have in whole or in part supervision, direction, or control, and from furnishing any materials used in any such work, and from furnishing for the use of any institution, public work, county . . . any . . . materials for building, or other thing required by such institution, public work, county, township, or other interest so in the keeping, in whole or in part, of such person.”
K. S. A. 21-1609 provides that violation of 21-1608 by a county officer is a misdemeanor.
K. S. A. 19-232 provides that all fees, costs or other allowances obtained from or allowed against the county when not authorized by law, and if not refunded upon demand, may be recovered in a civil action brought in any court of competent jurisdiction, and the court is required to add a 100% penalty in rendering judgment in favor of the county. The authority to commence and prosecute such actions rests exclusively with the board of county commissioners (Kerby v. Clay County, 71 Kan. 683, 81 Pac. 503).
K. S. A. 19-233 provides that any county commissioner “who shall willfully violate any provision of law, or fail to perform any duty required of him by law, shall be adjudged guilty of a misdemeanor.”
K. S. A. 10-802, insofar as applicable, provides no warrant shall be issued or authorized by any board of county commissioners except on an itemized statement certified by the claimant to be true, correct, due and unpaid, and that any claimant willfully making a false claim is guilty of larceny.
Both factual and legal questions are presented in determining whether the defendant should be ousted from office. As to the former, in State, ex. rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5, this court stated:
“In an action in quo warranto to oust defendant from the office of city commissioner where the court appoints a commissioner to hear evidence and make findings of fact and conclusions of law and the commissioner makes his report, the findings of the commissioner are advisory only and it is the duty of this court to examine the entire record and reach its own conclusions as to the facts.” (Syl. ¶1.)
Defendant urges this court to disapprove the findings of fact made by the commissioner with respect to the first and sixth claims for relief, as being unsupported by the evidence. We treat them chronologically as did the commissioner, dealing with the latter claim first wherein defendant was charged with improper sales of material to Sedgwick county under the name of L & S Equipment Company soon after taking office.
First, with respect to the conflict- of interest sales generally and without attempting to repeat the commissioner’s carefully prepared findings, it was undisputed that defendant while he was a county commissioner made certain sales to the county of utility generators and others items totaling $3,381.42 as revealed by documentary and other evidence. Defendant had taken office as county commissioner on January 9, 1961. Although there was some negotiation prior to this time leading up to the questioned transactions, as evidenced by invoices on behalf of defendant, and in some instances by purchase requisitions dated prior to January 9, 1961, in every instance the purchase order claim voucher was signed and certified by the vendor after January 9, 1961, was dated and signed on behalf of the county thereafter, and paid for by county warrant thereafter. It should be noted the vouchers for payment were signed and certified to by defendant’s seventeen-year-old nephew on behalf of the L & S Equipment Company, owned solely by defendant.
Defendants’ principal contention here is that the sales were actually completed prior to the time he took office and that “it merely took a while for the paper work to catch up.” The contention is incorrect. A purchase requisition is simply a request by the interested department that certain material be supplied. It does not constitute a contract. There was no contract binding upon the county shown here until the purchase order claim vouchers were completed (K.S.A. 10-802; 19-103, 19-212; 19-221; 19-222; 19-229; 19-242; 19-307). Moreover, duties of county commissioners do not end with mere completion of the paper work essential to a contract. When material is delivered the commissioners are charged with supervisory responsibility of determining whether the contractor has satisfied the contract terms and, if problems arise, of settling them satisfactorily to the county’s best interest.
Nondelivery of certain merchandise paid for by the county during this period was also found by the commissioner (finding 8). This consisted of three utility generators sold to the county fire department to be installed on its vehicles. Evidence on this was conflicting. The defendant testified he personally delivered four generators to the fire department maintenance shop. On behalf of plaintiff the mechanic in charge of that shop, as well as the captain in charge, testified only one generator was delivered there.
As to excessive prices charged for the generators, the distributor testified that according to the manufacturer’s schedule of recommended price, known to defendant, the appropriate price to Sedgwick county for the ten generators sold would have been $199.50 each instead of $269.55; such latter figure being twenty dollars more than the suggested retail price (finding 9).
The evidence as to the first claim for relief was likewise conflicting. In addition to the details recited in the commissioner’s report (findings 17-21) the record reveals that the defendant’s seventeen-year-old nephew ostensibly operating the K & L Service and Supply Company during the period from June to December, 1961, maintained no business records of any kind for this company and filed no income tax return reflecting any income on behalf of its activities. Also to be noted is the fact that when in December, 1961, the defendant sold his Wichita Fire Equipment Company to Lewis Bros. Hardware Company (vendors with whom defendant was charged with misconduct in the second and fourth claims for relief), at the same time defendant’s nephew and his K & L Company, for some unexplained reason, went out of business. The circumstances reveal more than just an elaborate coincidence — rather they reveal a wholly fabricated arrangement whereby defendant, after becoming county commissioner, continued to do business with the county under a sham company, the true nature of which he concealed.
Defendant presents no cogent or persuasive reasons to support his argument the commissioner’s findings should be disapproved. We think the findings are well substantiated by credible evidence and we are satisfied with their correctness.
Defendant’s chief defense is that which has become known as the present term rule, i. e., a public officer may not be removed from office' for misconduct occurring during a previous term of the office. The rule was applied by this court in State, ex rel., v. Henschel, 103 Kan. 511, 175 Pac. 393. There the accused was a police chief whose alleged misconduct was attempting to prevent a constable from arresting the chief’s chauffeur, a special police officer, on a misdemeanor charge.
It is true the alleged misconduct of which defendant has been found guilty occurred during his term which expired January 11, 1965, and the ouster action is directed toward his second successive term in office.
The present term rule is not followed in all jurisdictions; about as many reject as support it (see annotations at 17 A. L. R. 279 and 138 A. L. R. 753, together with A. L. R. Blue Book Service). Statutory provisions aside, the principal rationale of the rule is that reelection or reappointment of the officer amounts to condonation of his prior misconduct. Condonation of an offense implies knowledge of the offense, and, if the officer’s misconduct in the prior term was concealed or not known to the electorate or the appointing official at the time of reelection or reappointment, several courts have refused to apply the rule (see annotations, supra).
We would have difficulty supposing any electorate would knowingly reelect as guardian of the public funds one guilty of the deceitful dealings revealed here. Be that as it may, we are not confronted with deciding whether the present term rule should be applied here because of condonation by the electorate. The defendant throughout has stoutly denied any acts of wrongdoing, more specifically, in his reelection campaign he is shown to have categorically denied the factual basis upon which any wrong must rest (finding 27). The wrongdoing has been concealed from public view and there is nothing before us which may fairly be interpreted as condonation by the electorate.
The present term rule applied in Henschel, and referred to by way of dictum elsewhere, was considered most recently in State, ex rel., v. Harvey, 148 Kan. 166, 80 P. 2d 1095. This was an action to oust a district court clerk from her third consecutive two year term of office for shortages in her accounts occurring during her second term. In defense, cases applying the present term rule were cited. This court looked somewhat askance at that rule, saying:
“Perhaps at some time it will be necessary to review those cases and point out that the rule stated in them is not of universal application. But there is no necessity of doing that in this case.” (p. 172.)
This court thereupon pointed out there was a continuing duty on the part of the clerk to restore the money taken and this duty extended into the current term of office, and failure to discharge the duty constituted misconduct. The court noted also other instances of misconduct with respect to record-keeping, summarizing as follows:
“In short, her serious misconduct, of a character detrimental to the office and its proper functioning, is shown by this evidence to have extended over a period of approximately three years.” (p. 172.)
The findings here indict defendant on four separate charges: Conflict of interest sales through the L & S Equipment Company; nondelivery of merchandise paid for by the county; excessive prices charged the county; and conflict of interest sales through the dummy proprietorship.
Insofar as nondelivery of merchándise and excessive prices are concerned, we think, under the reasoning applied in Harvey, there remains a continuing duty on the part of the defendant to make restitution to the county for the wrongful depletion of its funds, this duty extends into the present term, and neglect to discharge it constitutes misconduct.
The same reasoning might be applied respecting the conflict of interest sales, particularly where there was concealment of the true facts, on the basis the sales in subversion of the law gave rise to continuing obligations on the part of the officer. Beyond that, however, we think there is a public interest in the fitness for public office of one engaging in such calculated trafficking, even though the transactions occurred in a term immediately prior to the present term of the officer.
The statute (K. S. A. 21-1608) denouncing such transactions has been part of our law since 1867. Its roots go back to the ancient injunction that no man can serve two masters. Official action is to be guided only by consideration of the public welfare. Violation of the statute is criminal (K. S. A. 21-1609). In 1889, in Weston v. Lane, 40 Kan. 479, 20 Pac. 260, this court held its violation to be ipso facto a disqualification to hold the office of clerk of a public school board.
Today our concern for honest and faithful public service is probably no where more evident than in the area of conflict of interest; no acts are more universally deemed inimical to the public welfare.
Vested as county commissioners are with the general control and supervision of the business affairs of the county, we can scarcely imagine a more serious disqualification for the particular office than conflict of interest transactions especially where, as here, the transactions are not of an illusive gray nature but are clearcut and direct. Nothing could be more intimately related to the duties of the office or affect those duties more directly. Such acts are moral delinquencies striking at the very heart of faithful performance required of the office and, whenever committed, they stamp the actor unworthy of the office.
The object of removal of a public officer for official misconduct is not to punish the offending incumbent, but to protect and preserve the office, and to free the public of an unfit officer (see State, ex rel., v. Showalter, 189 Kan. 562, 370 P. 2d 408).
We hold then that direct conflict of interest transactions by a county commissioner in his first term of office under the circumstances here shown are grounds for ouster from his second successive term of that office.
Finally, defendant argues the amounts involved are too trifling to invoke the drastic penalty of ouster. We need not labor the matter. The transactions amounted to approximately $4,800.00. This is not insubstantial nor is it de minimus from any standpoint. We believe ouster is warranted on the record of willful misconduct and neglect of duty. We approve and confirm the commissioners findings and conclusions as to plaintiff’s first and sixth claims for relief and we sustain the recommendation for defendant’s ouster based thereon. In view of this conclusion we need not consider other matters urged by plaintiff as additional grounds for ouster.
The judgment of this court is that defendant be ousted from the office of county commissioner of Sedgwick county, Kansas, third district.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the nature of the estate conveyed by a deed.
The undisputed facts may be briefly stated.
On March 7, 1945, the Federal Farm Mortgage Corporation conveyed title to 480 acres of land located in Sheridan County, Kansas, to W. S. Langmade and Margaret L. Langmade, his wife, by deed.
Subsequently, on October 27, 1947, W. S. Langmade died leaving as his heirs his widow, Margaret L. Langmade, and five children. There was no probate proceeding in the estate of W. S. Langmade.
On March 25,1963, the widow, Margaret L. Langmade, conveyed title to the real estate to plaintiffs.
This action was brought by plaintiffs to quiet their title to the land against the claims of the heirs of W. S. Langmade and others not material to this appeal. William Stephen Langmade, a grandson of W. S. Langmade, filed his answer alleging that W. S. Langmade and Margaret L. Langmade, his wife, acquired title to the land in question as tenants in common and not as joint tenants by the deed and that the subsequent conveyance to appellants by the surviving widow, Margaret L. Langmade, conveyed only an undivided 3/4ths interest in the property, leaving the remaining undivided l/4th interest vested in the heirs of W. S. Langmade, deceased, other than his widow. No other heirs of W. S. Langmade appeared but Henry L. Daniels, as guardian ad litem and military service attorney, filed a general denial of the allegations in the petition.
The trial court determined that the deed conveyed title to the Langmades as tenants in common and entered judgment confirming the title to an undivided M interest in the real estate in the heirs of W. S. Langmade, deceased, except for his widow.
The plaintiffs have appealed.
The sole issue involved is whether the deed conveyed the real estate to the grantees as “tenants in common” or “joint tenants.” We present the deed with the detailed description of property deleted with two other changes — where the words “parties of the second part” appear in the granting and habendum clauses we have indicated its deletion and included the antecedent words used in the identification or introductory clause.
“Corporation Special Warranty Deed
“This Indenture, Made this 7 day of March A. D. 1945, between the Federal Farm Mortgage Corporation, a corporation, organized and existing under the laws of the United States, whose principal office is located in the District of Columbia, and with a branch office in the City of Wichita, Kansas, party of the first part, and W. S. Langmade and Margaret L. Langmade, his wife, as joint tenants, with the right of survivorship, and not as tenants in common, of Oberlin in the State of Kansas, parties of the second part:
“Witnesseth: That the said party of the first part, for and in consideration of the sum of Five Thousand and no/100 ($5,000.00) Dollars, to it in hand paid by said parties of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed and by these presents does grant, bargain, sell and convey unto the said parties ike BGCOiad part [W. S. Langmade and Margaret L. Langmade, his wife, as joint tenants, with the right of survivorship, and not as tenants in common], their heirs, successors and assigns, forever, its title to and interest in the following described real estate situated in the County of Sheridan and State of Kansas, to-wit:
[Detailed description of 480 acres omitted]
“To Have and to Hold The same, together with all and' singular the title and interest of party of the first part in and to the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, forever and the said party of the first part hereby covenants and agrees that at the delivery hereof it is the lawful owner of the interest hereby conveyed in the above described premises; and that it will warrant and defend the same unto the parties ©f £be S-eceed: part [W. S. Langmade and Margaret L. Langmade, his wife, as joint tenants, with the right of survivorship, and not as tenants in common], their heirs, successors, and assigns, forever, against said party of the first part, its successors and assigns, and all and every person or persons whomsoever lawfully claiming through, by or under it, them, or either of them.
[Signature clause omitted]”
The trial court did not state a reason for its conclusion that the deed created a tenancy in common and the appellees have not appeared in support of the decision. However, we have no difficulty in concluding that the deed conveyed the real estate to the grantees as joint tenants.
The statute which guides us in our decision provides insofar as material:
“Real or personal property granted or devised to two or more persons including a grant or d’evise 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: . . .” (K. S.A. 58-501.)
In Riggs v. Snell, 186 Kan. 355, 350 P. 2d 54, rehearing denied 186 Kan. 725, 352 P. 2d 1056, we considered the above statute and stated:
“The provisions of this statute leave no doubt of the fact that presumptions are almost wholly in favor of tenancies in common, and that in order to overcome such presumption the language used in a grant or devise must make it clear that a joint tenancy was intended to be created. Its provisions have been constructed and applied in a number of cases.” (p. 358.)
In the Riggs case we considered the cases in which we have held that in order to create a joint tenancy with right of survivorship language must be used to make clear the intention to create such an estate and concluded that designating the grantees as “W. M. Snell and Georgia Elma Snell, his wife, or the survivor of either” did not make clear an intent to create joint tenancy with right of survivorship where the granting and habendum clauses contained the language “unto the said parties of the second part and their heirs and assigns forever.”
It would appear that one understanding the meaning of “joint tenants with the right of survivorship” would have no difficulty in incorporating the words “joint tenants” in the descriptive clause. It cannot be said that every use of the word “survivorship” implies a joint tenancy.
In this case, using the same rules of law as we applied in the Riggs case, it is clear that the language in the descriptive clause in the deed under consideration created a joint tenancy with the right of survivorship. The words “W. S. Langmade and Margaret L. Langmade, his wife, as joint tenants with the right of survivorship and not as tenants in common” is the clearest type of language to be used in creating a joint tenancy.
Neither can it be said that the same language is not used in both the granting clause and the warranty or habendum clauses. The use of the phrase “parties of the second part” in an instrument is simply a convenient or short term in lieu of the full designation of the grantees. If the meaning of the language used will be simplified then the antecedent description should be substituted for the convenient term “parties of the second part.” This we have done for clarifying purposes in the deed which we have quoted, leaving the intention of the parties without doubt.
We conclude that where, in the introductory clause of a deed made by a grantor in favor of a husband and wife, the grantees were described as “joint tenants with the right of survivorship and not as tenants in common” but in the granting and habendum clauses there were included the words “unto said parties of the second part, their heirs, successors and assigns, forever,” a joint tenancy was clearly created.
The judgment is reversed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, Kansas Public Service Company, Inc., has appealed from the judgment of the district court of Douglas County sustaining an order of the State Corporation Commission which certified territory immediately adjacent to the city of Lawrence, Kansas, to the appellee, Union Gas System, Inc., to transact the business of a gas public utility. The area certified was territory served in part by the appellant.
For the purpose of brevity, Kansas Public Service Company, Inc., is hereafter referred to as appellant or Public Service; Union Gas System, Inc., is hereafter referred to as appellee or Union Gas, and the State Corporation Commission is hereafter referred to as the Commission.
Public Service is a Kansas corporation with its offices located in the city of Lawrence, and operates as a one-city gas public utility pursuant to K. S. A. 66-104 and 12-2001, Fifth. It is engaged in the distribution of natural gas at retail within the city and the territory immediately adjoining such city pursuant to a franchise granted by the city on May 18, 1964, and an amended gas line extension policy approved by the city governing body on August 25, 1965.
Union Gas is a Kansas corporation with its offices located in the city of Independence, Kansas, and is engaged in the distribution of natural gas in the state of Kansas pursuant to certificates of convenience and necessity previously issued by the Commission. On March 23, 1965, Union Gas filed its application with the Commission for a certificate of convenience and necessity to transact business as a gas public utility in Leavenworth, Jefferson, Wyandotte, Johnson and Douglas Counties. The application was docketed No. 76,160-U, and notice of the hearing on the application was published in daily newspapers in Leavenworth, Douglas and Johnson Counties. None of the territory sought in the application had previously been certified by the Commission to Union Gas or to any public utility for natural gas service.
The territory covered by the application was primarily rural, but did include certain third class cities and unincorporated rural communities. It also included territories surrounding and in close proximity to the cities of Lawrence, Leavenworth and Tonganoxie. Other public utilities under the jurisdiction and regulation of the Commission, which operated in or adjoining or in close proximity to the territory for which Union Gas sought certificates of convenience and necessity, were alleged to be the Gas Service Company, Kansas City, Missouri; The Greeley Gas Company, Denver, Colorado, and the Kansas Power & Light Company, Topeka, Kansas.
On July 21, 1965, Gas Service Company (docket No. 76,951-U), and The Greeley Gas Company (docket No. 76,952-U), and on July 23, 1965, the Kansas Power & Light Company (docket No. 76,963-U), respectively, filed applications to intervene, and each filed an application for a certificate of convenience and authority to transact the business of a public utility in certain areas in the five Kansas counties.
On July 31, 1965, Public Service filed its petition with the Commission for leave to intervene in the hearing on the application of Union Gas. The petition did not seek affirmative relief, but alleged that Public Service was exempt from the jurisdiction of the Commission by virtue of K. S. A. 66-104 and was regulated by and was under the jurisdiction of the city of Lawrence and had filed rates and rules and regulations which had been approved by the governing body; that the areas for which Union Gas sought a certificate of convenience and authority surrounding the city of Lawrence encroached upon and overlapped areas in which it had provided service for many years in accordance with its franchise with the city of Lawrence; that the granting of the application of Union Gas would adversely affect its interest and deprive it of the benefits of investments theretofore made in the city and the territory immediately adjoining such city, and that it had at all times been willing to extend its distribution systems to provide service to additional customers in such territory, in accordance with rules and regulations on file with and approved by the governing body of the city. It was further alleged that the granting of the application of Union Gas would not be in the public interest in that the authorization to Union Gas to provide service within the areas adjoining the city could inevitably deprive future customers the opportunity of obtaining natural gas service from the most readily available source at the lowest cost; that the granting of the application of Union Gas would deprive it of valuable property rights without due process of law, and that the representation of its interest by existing parties was inadequate. The prayer was that it be permitted to intervene and become a party to the proceedings so as to protect its interests.
At the commencement of the hearing before the Commission on August 2, 1965, the petition of Public Service, together with the applications of the three named public utilities to intervene in the consolidated hearing, was granted by the Commission. Evidence was introduced in the consolidated record by all of the public utilities on August 2, and 3, 1965, and October 6, and 7, 1965, and the record was closed.
On October 20, 1965, the Commission issued separate orders on behalf of each public utility applicant. In docket No. 76,160-U it issued its order granting in part and denying in part the application and issued its certificate of convenience and authority certifying to Union Gas not only the territory covered by its application but also certified additional territory between that requested in the application and the city limits of Lawrence, which additional territory was immediately adjacent to the city limits. Omitting the caption and the lengthy meets and bounds description of the territory certified, the Certificate and Order reads:
“This matter is before the Commission on application of Union Gas System, Inc., filed on the 23rd day of March, 1965. Proper notice was given and the matter was set for hearing and partially heard on April 27, 1965, and continued. This matter was on motion by and agreement of counsel consolidated for hearing purposes and heard upon a common record with Docket No. 76,951-U, being the application of The Gas Service Company, filed July 21, 1965; Docket No. 76,952-U, being the application of Greeley Gas Company, filed July 21, 1965; and Docket No. 76,963-U, being the application of The Kansas Power and Light Company, filed July 23, 1965. All of said applications were for certificates of Convenience and Authority to transact the business of a public utility in certain areas of Wyandotte, Leavenworth, Jefferson, Douglas, and Johnson Counties, Kansas.
“The consolidated hearing was held in the hearing room of the Commission, State Office Building, Topeka, Kansas, on August 2 and 3, 1965, and October 6 and 7, 1965.
“At the beginning of the hearing on August 2, 1965, applications for intervention which had been filed were heard and action taken by the Commission as follows:
“Applications of Greeley Gas Company, Gas Service Company, Kansas Public Service Company, and The Kansas Power and Light Company, to intervene in the consolidated hearing were granted.
“Thereupon evidence was introduced in behalf of all applications into a consolidated record, and the record closed. The Commission, having carefully considered the record and being fully advised in the premises, finds that separate orders should be made by the Commission in each of the dockets which were consolidated for hearing purposes.
“And, the Commission finds in the instant captioned matter of the application of Union Gas System, Inc., as follows:
“1. That the application should be granted in part and denied in part and a certificate of Convenience and Authority issued to applicant to serve as a gas public utility in the following described territory:
(Description omitted.)
“2. That the corridors described in Finding No. 2 of the Certificate and Order being issued this date in Docket No. 76,951-U (Gas Service Company) are therein determined to be non-exclusive and this Applicant should be authorized to serve there as specified in Finding No. 3 of said Certificate and Order. The said Certificate and Order in Docket No. 76,951-U are incorporated herein and made a part hereof by reference.
“3. That at the present time there is a matter before the Commission, being Docket No. 76,757-U for interpretation and clarification of certificate authority relating to certain areas of Kansas. The instant certificate is not determinative in any regard to the issues involved in said docket.
“4. That Kansas Public Service Company, Inc., is a one-city utility and by statute K. S. A. 66-104 is exempt from the jurisdiction of this Commission and that the certificate herein granted to Union Gas System, Inc., is not in any manner a determination of the authority of Kansas Public Service Company, Inc., to serve as a utility in any given area.
“5. That the construction of the transmission and distribution systems required to serve the towns of Easton, Lowemont and Kickapoo and along said transmission lines will require an investment substantially in excess of the amount Applicant would ordinarily make under its rate schedules and rules and regulations and Applicant should be permitted to file and place in effect higher rates as an aid in construction in said areas, in accordance with established procedures for determination of rates.
“6. That public convenience will be promoted by permitting Applicant to transact the business of a gas public utility in the territory described in Finding No. 1 herein, and the application issued in accordance with the provisions of K. S. A. 1963, 66-131.
“It Is, Therefore, by the Commission Considered and Certified:
“That the application in the instant docket be, and it hereby is, granted in part and denied in part and Union Gas System, Inc., be, and it hereby is, permitted to transact the business of a gas public utility in the territory described in Finding No. 1 herein.
“It Is Further by the Commission Ordered:
“That Union Gas System, Inc., be, and it hereby is, permitted to operate as a gas public utility within the non-exclusive corridors described in Finding No. 2 in Docket No. 76,951-U, as specified in Finding No. 3 of said Certificate and Order.
“It Is Further by the Commission Ordered:
“That Union Gas System, Inc., be, and it hereby is, permitted to file and place in effect appropriate rates for service subject to provisions set forth in Finding No. 5 herein.
“The Commission retains jurisdiction of the subject matter and parties for the purpose of entering such further order or orders as it may deem necessary.”
On November 29, 1965, the appellant, Public Service, filed its application for rehearing pursuant to Rules of Practice and Procedure of the Commission. On December 1, 1965, the Commission granted a special rehearing, limited to the boundary lines of the certified area adjacent to and abutting the city limits of the city of Lawrence, and the rehearing was held on January 19, 1966.
On March 16, 1966, the Commission entered its order on rehearing. It eliminated the additional territory between that requested in the application and the city limits which was immediately adjacent and contiguous to the city, and established the final territorial boundary lines to cover the territory requested in Union Gas’ original application, which territory was from one-fourth to one-half mile beyond the city limits of the city of Lawrence. In all other respects, the Commission’s order of October 20, 1965, was affirmed.
On April 15, 1966, Public Service filed its application for judicial review in the district court of Douglas County and also filed its motion to stay the orders issued by the Commission on October 20, 1965, and March 16, 1966. Union Gas filed its motion to intervene as respondent in the district court and also filed motions to dismiss the motion for a stay order and to dismiss application for judicial review.
On June 2, 1966, the district court, in a memorandum opinion, found that the respective motions of Union Gas to dismiss the appeal and Public Service’s motion for a stay order should be overruled.
On July 15, 1966, the district court found the order of the Commission under review to be lawful and reasonable and entered judgment sustaining the order (K. S. A. 66-118j). Thereafter, the appellant timely perfected this appeal.
Public Service first contends the district court erred in sustaining the order of the Commission for the reason the order was unlawful because it failed to comply with law with respect to judicial review, and with the Commission’s own rules in that it (1) did not contain a summary of the allegations and contentions of the parties; (2) did not contain a summary of the evidence, and (3) did not contain basic “findings of fact” and “conclusions of law.” The point is well taken.
The Commission has adopted Rules of Practice and Procedure relating to all proceedings before the Commission and filed the same with the Revisor of Statutes pursuant to K. S. A. 1965 Supp. 77-415, et seq. The purpose of those rules was to assist the Commission as it defines the public interest and serves the citizens of the state. Rule No. 82-1-232 provides that formal decisions of the Commission shall be stated in written documents entitled “Orders,” and subsection (a) prescribes the form and content of such orders, and reads:
“Each order of the commission shall contain the caption and docket number of the proceeding in which the order is issued. The body of the order shall recite the appearances of attorneys of record for the parties, the date and place of the hearing or hearings, a summary of the allegations and contentions of the applicant (or the complainant or the petitioner), a summary of the evidence introduced by the applicant (or the complainant or the petitioner), a summary of all other evidence, a section entitled ‘findings of facts’ listing all facts found by the commission to be true, a section entitled ‘conclusions of law’ containing legal conclusions of the commission, and the directive or mandate of the commission, stated in concise and mandatory language. The order shall bear the signature of the secretary and the seal of the commission. The surnames of the commissioners who participated in the making of the order shall be typed at the end of the order. The date of mailing to the parties of the order shall be shown below the secretary’s signature.” (Emphasis supplied.)
In State, ex rel., v. Columbia Pictures Corporation, 197 Kan. 448, 417 P. 2d 255, it was held that rules and regulations adopted by an administrative board to carry out a policy declared by the Legislature, have the force and effect of law. (Syl. ¶3.) Rules adopted by the Commission to assist it to define the public interest and to serve the citizens of the state by prescribing orderly practice and procedure relating to all proceedings before the Commission, carry out the policy declared by the Legislature, and have the force and effect of law.
Did the Commission s order in the instant case comply with its own rules? It is obvious that, from a consideration of the order issued on October 20, 1965, as well as the order on rehearing, the Commission did not comply with Rule No. 82-1-232 (a). There is nothing in the challenged order of October 20, 1965, that purports to contain a summary of the contentions of the parties, neither does it contain a summary of the evidence introduced by the various public utilities, including the appellant, nor does it contain basic findings of fact or conclusions of law. On its face, the order is in violation of Rule No. 82-1-232 (a). At most, paragraph No. 6 of the order is a finding of ultimate fact expressed in the language of the statute (K. S. A. 66-131), that the public convenience will be promoted by permitting Union Gas to transact the business of a gas public utility in the territory described. An ultimate finding is a conclusion of law or at least a determination of a mixed question of law and fact. (Helvering v. Tex-Penn Co., 300 U. S. 481, 491, 81 L. Ed. 755, 57 S. Ct. 569.) Such an ultimate finding is not enough, in the absence of basic findings to support it. This court must first know what the basic findings are before it can give them conclusive weight. We have repeatedly emphasized the need for clarity and completeness in basic or essential findings on which the administrative orders rest, and findings based on substantial evidence must embrace the basic findings which are needed to sustain the order. (Central Kansas Power Co. v. State Corporation Commission, 181 Kan. 817, 316 P. 2d 277; Atchison, T. & S. F. Rly. Co. v. State Corporation Comm., 182 Kan. 603, 322 P. 2d 715; Class I Rail Carriers v. State Corporation Commission, 191 Kan. 201, 380 P. 2d 396; Darnell Truck Service v. State Corporation Commission, 194 Kan. 96, 397 P. 2d 385; Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P. 2d 515.) In the latter case it was said:
“The findings of tire Commission must be based upon facts. It must be possible for the reviewing court to measure the findings against the evidence from which they were educed. Findings not based on evidence, but on suspicion and conjecture, are arbitrary and baseless.” (1. c. 47.)
Moreover, it is equally well settled that the lack of express findings of fact by an administrative agency may not be supplied by implication (Atchison Ry. v. United States, 295 U. S. 193, 79 L. Ed. 1382, 55 S. Ct. 748; Burlington Truck Lines v. U. S., 371 U. S. 156, 9 L. Ed. 2d 207, 83 S. Ct. 239), and where express findings are required as a matter of procedural law in order to support an administrative determination, it may be stated as a general rule that courts will not search the record in order to ascertain whether there is evidence from which the ultimate finding could be made. (Wichita R. R. v. Public Util. Comm., 260 U. S. 48, 67 L. Ed. 124, 43 S. Ct. 51; Atchison Ry. v. United States, supra.) Under our Public Utility Act (K. S. A. Ch. 66) it is the function of the Commission, and not of the court, to find the facts.
The reasons for requiring the findings of basic facts by an administrative agency are so powerful that the requirement has been imposed with undeviating uniformity by this court. The rationale of the rule as gleaned from the foregoing cases and others, is to facilitate judicial review, avoid judicial usurpation of administrative functions, assure more careful administrative consideration to protect against careless and arbitrary action, assist the parties in planning their cases for rehearing and judicial review, and keep such agencies within their jurisdiction as prescribed by the Legislature. We do not mean to imply that the Commissions findings must be set forth with such minute particularity as to amount to a summation of all the evidence of record. We hold only that in a given case, and in this case particularly, the Commission must assume the responsibility of expressing the basic facts on which it relies with sufficient specificity to convey to the parties, as well as to the courts, an adequate statement of the facts which persuaded the Commission to arrive at its decision. There must be findings on all applicable standards which govern the Commission s determination, and the findings must be expressed in language sufficiently definite and certain to constitute a valid basis for the order, otherwise the order cannot stand. (Central Kansas Power Co. v. State Corporation Commission, supra; Burlington Truck Lines v. U. S., supra.)
In the instant case, what the Commission and apparently counsel for the Commission, and the district court, overlooked is this requirement of basic findings. What is here involved was spelled out in Saginaw Broadcasting Co. v. Federal C. Com'n, 96 F. 2d 554, cert. den. 305 U. S. 613, 83 L. Ed. 391, 59 S. Ct. 72, referred to as a leading case in a note in 146 A. L. R. 209, 220. Noting the necessity for findings of fact by administrative boards and commissions, the court said:
“. • • When a decision is accompanied by findings of fact, the reviewing court can decide whether the decision reached by the court or commission follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence. In the absence-of findings of fact the reviewing tribunal can determine neither of these things. The requirement of findings is thus far from a technicality. On the contrary, it is to insure against Star Chamber methods, to make certain that justice shall' be administered according to facts and law. This is fully as important in respect to commissions as it is in respect to courts.
“In discussing the necessary content of findings of fact, it will be helpful to spell out the process which a commission properly follows in reaching a decision. The process necessarily includes at least four parts: (1) evidence-must be taken and weighed, both as to its accuracy and credibility; (2) from attentive consideration of this evidence a determination of facts of a basic or underlying nature must be reached; (3) from these basic facts the ultimate facts, usually in the language of the statute, are to be inferred, or not, as the case may be; (4) from this finding the decision will follow by the application of the statutory criterion . . .” (p. 559.)
Not only does Rule No. 82-1-232 (a) require that the Commission make basic findings of fact to support its conclusions of law, but also that requirement has been imposed by this court to facilitate judicial review. As indicated, there is complete absence of any attempt to comply with that requirement in the challenged order, and, accordingly, it is unlawful and must be set aside.
Public . Service argues that it is regulated in all respects by the city of Lawrence and that, as a one-city gas public utility, it has the same standing before the law as any other public utility regulated and certified by the Commission.
Under the Utilities Act (Laws 1911, Ch. 238), the Commission was given full power, authority and jurisdiction to supervise and control all public utilities doing business in the state. (K. S. A. 66-101, 66-131.) While the Act was comprehensive in its scope, it specifically did not include within its provisions mutual telephone companies, public utilities owned and operated by municipalities and, subject to the right to apply to the Commission for relief as provided in 66-133, it vested the power to regulate privately owned public utilities as are situated and operated wholly or principally within any city for the benefit of such city or its people, exclusively in such city. (K. S. A. 66-104.)
Since the power to control and regulate “one-city” public utilities is vested exclusively in such city, except as provided in 66-133, such utility is exempt from applying to the Commission for a certificate of convenience and authority to do business in this state as provided in 66-131. While the specific question has not been previously decided by this court, our former decisions which bear upon the question, so far as they do relate to it, are regarded as being in harmony with the conclusion stated. (Humphrey v. City of Pratt, 93 Kan. 413, 144 Pac. 197; Street Lighting Co. v. Utilities Commission, 101 Kan. 438, 166 Pac. 514, 101 Kan. 774, 169 Pac. 205; City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 264 Pac. 68; Wichita Water Co. v. Public Service Commission, 126 Kan. 381, 268 Pac. 89; Board of Public Utilities v. Kansas City P. & L. Co., 139 Kan. 842, 33 P. 2d 320; Kansas Gas & Elec. Co. v. City of McPherson, 146 Kan. 614, 72 P. 2d 985.)
The crux of this litigation is the conflict between the jurisdiction of the Commission, as a regulatory body, to issue certificates of convenience to all public utilities doing business in this state, and the city of Lawrence, as a regulatory body, to control and regulate all public utilities, including Public Service, situated and operating wholly or principally within the city. The record manifests the Commission took the position that, since Public Service was a one-city gas public utility and exempt from its jurisdiction and was not certified as a regulated utility whereas Union Gas and the other public utility applicants were so certified, it need not afford Public Service the same consideration, with respect to territory immediately adjoining the limits of the city of Lawrence, as it was required to give to any other regulated public utility, or give consideration to regulations of the city governing Public Service’s operations. In sustaining the order, the district court took the same view.
The statute (66-104) relating to Public Service as a one-city utility reads, in part:
“. . . The power and authority to control and regulate all public utilities and common carriers situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, shall be vested exclusively in such city, subject only to the right to apply for relief to the corporation commission as hereinafter- provided in section 66-133 of the General Statutes of 1949. . . .” (Emphasis supplied.)
K. S. A. 66-133 referred to above authorizes the city to contract with a public utility situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people by ordinance or resolution. Such authority includes the right to contract as to the kind of service to be rendered by the utility, the maximum rates and charges to be paid therefor, provides for the extensions to its physical plant necessary for the benefit of the public, and provides for a reasonable and lawful penalty for noncompliance with the provisions of any such ordinance.
On May 19, 1964, the city of Lawrence enacted an ordinance pursuant to K. S. A. 66-104 and 12-2001 by which it granted to Public Service a franchise for the distribution of natural gas within the city of Lawrence, and the territory immediately adjoining said city, and not within the boundaries of any other incorporated city, subject, however, to all conditions, specifications and limitations therein contained.
The franchise required Public Service to furnish gas to such person or persons who may make application for the same within the territory covered by its mains in the city of Lawrence, and in the territory immediately adjoining the city, and to pay the city five percent per annum of the gross receipts for gas sold during the term of the franchise.
K. S. A. 12-2001 relates to the granting of a franchise by ordinance to any person, firm or corporation, to supply, among other things, natural gas, and prescribes conditions upon which the franchise may be granted. The Fifth subsection reads, in part:
“. . . Such fixed charge may consist of a percentage of the gross receipts derived from the service permitted by the grant, right, privilege or franchise from consumers or recipients of such service located within the corporate boundaries of such city, and, in case of public utilities or common carriers situated and operated wholly or principally within such city, or principally operated for the benefit of such city or its people, from consumers or recipients located in territory immediately adjoining such city and not within the boundaries of any other incorporated city . . .” (Emphasis supplied.)
It is clear from the foregoing that, under the franchise of the city and the applicable statutes, Public Service was legally entitled to serve the territory immediately adjoining the city of Lawrence. The evidence showed that Public Service had been serving the territory immediately adjoining the city and meeting the requirements of the growth of the city for as long as it had been franchised. The evidence further showed the city of Lawrence was making a steady growth and that the city governing body had approved the gas line extension policy of Public Service.
While 12-2001 may be regarded in part as a revenue statute, nonetheless the Fifth subsection contains identical language as that in 66-104 with respect to one-city public utilities, and requires the utility to pay to the city, revenue derived from service to consumers or recipients “located in territory immediately adjoining such city and not within the boundaries of any other incorporated city.” The corollary of the foregoing would seem to be that if the city may receive revenue from patrons of the utility located in territory immediately adjoining the city, there exists legislative intent, at least by implication, that the utility be permitted to extend its lines into such territory. Let it be understood that it is not necessary in this opinion nor do we intend or attempt to define what is “territory immediately adjoining such city.”
As indicated, the Legislature has placed the power and authority to control and regulate all privately owned public utilities in two different regulatory bodies: one, the Commission, and the other, the city, in which a public utility serves wholly or principally therein and territory immediately adjoining such city, with a limited review vested in the Commission. With respect to the former, the Legislature empowered the Commission to supervise and control all public utilities and to issue certificates of convenience to transact their business in the state. In the same Act, however, the Legislature placed the control and regulation of all public utilities situated and operated wholly or principally within any city, exclusively in such city, subject to limited review by the Commission.
In Street Lighting Co. v. Utilities Commission, supra, a similar question was presented, and it was said:
“The cities of this state have always had the power to regulate and control their local public service corporations . . . Cities still have that power except where they have been stripped of it by the public utilities act. (Laws 1911, ch. 238, §40, Gen. Stat. 1915, §8368; Humphrey v. City of Pratt, 93 Kan. 413, 418, 144 Pac. 197.) And where the utility service is furnished wholly or principally within one city, the power of control is expressly reserved to the city. (§§3 and 33, public utilities act.) If the local utility company and the city come to loggerheads, then the public utilities commission may take jurisdiction by a proceeding somewhat in the nature of an appeal or right of review. (Laws. 1911, ch. 238, §33, Gen. Stat. 1915, §8361.)” (L. c. 778.)
It was further said:
“. . . This.court will always extend a very liberal interpretation of the public utilities act so as to give the public utilities commission effective use of its lawful powers over the utilities companies lawfully subject to its control. Even where it is strongly debatable whether the utility’s business is or is not confined principally to one town or city, this court is inclined to resolve the doubt in favor of the commission’s authority. (The State, ex rel., v. Water Co., 92 Kan. 227, 231, 104 Pac. 103.) This is wisely so, because wherever the business of a public utility company extends outside the limits of one city, even in a relatively small degree, complications as to the control of that service are likely to arise, or such outside service may go unregulated altogether unless the supervision of the state commission is recognized. But where the utility is subject to city control, and not to the state commissions control, the court’s support of the city’s powers must be just as liberal, so that the city may effectually exercise its governmental powers and discharge the duties entrusted to it by the legislature.” (Emphasis supplied.) (l. c. 777.)
In the instant case, both regulatory bodies have issued authorization to different public utilities to serve the same territory. A city is a creature of the Legislature, the same as the Commission, which may exercise only such powers, as the Legislature confers. The state gives, and the state can take away, but until the Legislature changes the policy of the regulation of “one-city” public utilities as are situated and operated wholly or principally within any city, the city’s regulation of the utility is as lawful and exclusive as is the Commission’s regulations of other public utilities doing business in the state.
Giving the Utilities Act a liberal interpretation with respect to the powers to be exercised by the city of Lawrence, its ordinance and extension policies may not be ignored by the Commission in the final determination of this controversy. (Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 466, 251 Pac. 1097.) Public Service is a public utility chartered under the laws of this state, and pursuant to valid regulation is performing the public service of supplying natural gas within the city of Lawrence and in territory immediately adjoining the city. Where it is meeting the public needs in such territory, it has the right to insist that its rights be protected the same as any other public utility.
Other points have been raised, one of which needs to be discussed since it deals with procedure and practice before the Commission.
At the commencement of the presentation of evidence by Public Service before the Commission, Union Gas moved to prevent any testimony that would be offered by Public Service, as intervenor. The chairman of the Commission stated the motion would be taken under advisement, with direction to Public Service to proceed with the introduction of its evidence, at the conclusion of which the Commission would rule upon the motion, and that Union Gas would have the privilege of making a motion to strike all of such testimony, which, too, would be ruled upon.
During the presentation of its evidence, Public Service was permitted to offer evidence relating to the following exhibits, and Union Gas cross-examined in regard to them: Exhibit No. 11 (the city ordinance of May 19, 1964, granting Public Service its franchise), Exhibit No. 12 (Public Service’s extension line policy, approved by the city when the franchise was granted), Exhibit No. 13 (the amendment to the extension line policy approved by the city), Exhibit No. 15 (a map showing the area within three miles of the city limits of Lawrence which Public Service was serving), and Exhibit No. 16 (a comparison of Public Service’s rates in the territory immediately adjoining the city with the proposed rates of Union Gas). The exhibits were admitted over objection of Union Gas, with the chairman stating, “And you are preserving your motion to strike.”
At the conclusion of the presentation of evidence by Public Service, Union Gas moved to strike all testimony of appellant. The following is the record of counsel’s motion, and the Commission’s action thereon.
“Mr. Hults: For the record, at the close of the testimony of Kansas Public Service Company, I would like to strike all of the testimony on the basis that they have no right here to present any affirmative testimony in regard to being certified or keep from having the area surrounding the City of Lawrence served.
“Chairman Mitchell: It will be taken under advisement. Gentlemen, is there any more testimony to come into this record? Do you have some rebuttal testimony?”
Likewise, at the conclusion of Union Gas’ evidence, a motion was made by The Greeley Gas Company, the Kansas Power & Light Company, and Public Service to dismiss all of Union Gas’ application which was not supported by evidence of public need. The chairman stated the motion would be taken under advisement, and ruled upon by the Commission. Thereafter, staff counsel for the commission moved that all portions of all applications by the parties for which no testimony was offered indicating a presently existing need for service in the area sought by the applicants, be denied. Again the chairman stated the motion would be taken under advisement, and ruled upon by the Commission.
The record discloses that at no time during the hearing or afterward, or at the rehearing, or thereafter, did the Commission make any ruling on any of the motions. Manifestly, this was error. We are not advised whether the Commission did or did not consider the evidence offered by Public Service, or whether, in chambers, it considered Union Gas’ motion to strike all the testimony of Public Service.
In the proceedings for judicial review of the challenged order, the district court had before it all of the evidence presented before the Commission, except the exhibits above referred to, which were not included in the transcript. We can be sympathetic with the district court in that it did not realize it had not been provided a full and complete record of the hearing. Like this court on appellate review, the district court could not be sure whether the Commission did or did not consider Public Service’s evidence, and it is evident it did not consider the exhibits since they were not included in the transcript. . The omission of these exhibits was not discovered until counsel for Public Service prepared its Designation of Contents of the Record on appeal.
Proper procedure requires the Commission to rule on all motions and objections to evidence so the record clearly reflects what evidence and exhibits the Commission took into consideration in arriving at its final decision.
Our consideration of the record requires us to reverse the judgment of the district court. The case is remanded to the district court with instructions to issue an order setting aside the order of the State Corporation Commission issued October 20, 1965, and its order on rehearing, and remand the case to the Commission for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Kaul, J.:
This is an action brought by the plaintiff, Donald L. Schroder, on behalf of Loretta Schroder, his incompetent wife, who suffered injuries allegedly caused by a defect in a state highway. The jury returned a verdict for plaintiff in the trial below and defendant has appealed from orders of the trial court overruling motions for a directed verdict at the close of plaintiff’s evidence, at the close of all the evidence, to set aside the verdict and judgment and for a new trial. Defendant also claims error with respect to three instructions submitted by the trial court.
On June 8, 1960, the State Highway Commission, hereafter referred to as defendant or commission, adopted a resolution relocating, changing and redesignating a segment of U. S. Highway 54 in Greenwood County, Kansas. The resolution described the new highway relocation and designated a described segment of the old highway and provided that such segment be maintained “as a detour highway until such time as the herein designated route shall be completed and open to traffic.” The resolution also provided for the withdrawal of the replaced highway from the state system. The segment of the old road to be withdrawn from the highway system amounted to about seven and one-half miles and the length of the new road was about six and two-tenths miles. Old U. S. Highway 54 entered the City of Eureka from the west on River Street and proceeded east to Main Street then turned north on Main Street and proceeded to Seventh Street where it turned to the east and proceeded in an easterly direction to the east city limits. From this point old U. S. Highway 54 proceeded in an easterly direction, it was crossed diagonally by the new location at a point about three and one-half miles east of the City of Eureka. The new location of U. S. Highway 54, instead of turning north at the junction of River and Main Streets in Eureka, proceeded east paralleling the old U. S. 54 for a distance of about three miles and then took a diagonal course to the northeast and crossed the old U. S. 54. As we have indicated, this junction is the scene of the accident in question.
There was a fill on the new U. S. Highway 54 at this point and a shoofly detour was constructed permitting traffic to cross the new highway during the construction period. The shoofly detour was surfaced with blacktop. Prior to November 3, 1961, there was a large barricade from six to eight feet high at a point where the shoofly detour connected with old U. S. Highway 54, which directed traffic to the northward up and over the shoofly. There were other signs warning the public concerning' the detour and road construction. The road was labeled U. S. Highway 54 and all signs were in existence prior to November 3, 1961.
On November 3, 1961, at 10:30 a. m. the new U. S. Highway 54 was opened to traffic. On the same day, or prior thereto, the State Highway Maintenance Department removed all U. S. 54 signs from the old route and replaced U. S. 54 signs on the new route. Several witnesses for the defendant testified that included in these signs was a conventional U. S. 54 route marker with a directional straight ahead arrow placed on the south side of the highway on River Street and west of the intersection of River and Main Streets in the City of Eureka, and also a conventional size confirmation route marker east of the intersection. Two of defendant’s witnesses testified the conventional route marker was replaced by an oversized sign on November 1, 1961. The time of placing the signs is in dispute. Defendant’s employee Eddie Brothers erected the directional signs in question but could not remember when he did it. The plaintiff testified he saw no signs as he drove through the intersection the night of the accident. He testified he went back three days later to see if he had missed a sign. On this point the plaintiff’s testimony is narrated as follows:
“Three days after the accident when he was coming through Eureka on his way back to Rozel he went to tire intersection of Main street and Highway 54 on the south end of Main street. Pie went there to find out if he had missed a sign when he came through there the night of the accident. There were no signs indicating U. S. Highway 54 went straight ahead. There were no signs at all.”
Shortly after November 3, 1961, the defendant through its contractor, Midwest Precote Company, a Corporation, and its subcontractor, Braden Construction Company, began removal of the surface of the shoofly, the “tin whistle” underneath it and a culvert under the old U. S. Highway 54. In the process a large mound of dirt, about four and one-half feet high, was placed across old U. S. Highway 54 west of the culvert excavation. On the night of November 22, 1961, at about 9 p. m. the plaintiff drove his automobile into this mound of dirt and as a result Loretta Schroder suffered the injuries complained of.
Plaintiff brought an action against Braden, doing business as Braden Construction Company, and the Midwest Precote Company, which resulted in a verdict and judgment for defendant Braden, Midwest having been discharged from the action by a demurrer. The judgment and verdict were reviewed by this court on appeal in Schroder v. Braden, 193 Kan. 85, 391 P. 2d 1005. We held that plaintiff’s evidence showed no duty on the part of Braden or Midwest to construct signs or barricades at the point in question, either under the statute or common law. In this connection it was stated in the opinion:
“. . . Appellees (Braden and Midwest) had no power or authority to abate the conditions which it is alleged made the old highway dangerous. They had no duty or power to control the state or county highway departments with reference to the standards of markings on the old highway.” (p. 91.)
We further stated the plaintiff was in no position to complain because the trial court permitted the case to go to the jury, since the jury made a determination of no liability. Under the circumstances pointed out later in this opinion the findings and holding in the Braden case are not determinative of the issues presented here. The effect of a defendant’s verdict in Braden and a plaintiff’s verdict in the case at bar accounts for some discrepancy between the two cases as to a few of the facts.
The mound of dirt in question had been piled up by Braden as a result of removing a culvert located at about the junction of the old U. S. Highway 54 and the shoofly detour. On old Highway 54 there was a crest of a hill about 765 feet west of the dirt pile, proceeding east about 100 feet the next landmark is a north-south access road connecting with the new highway and intersecting the old. The center line of the north-south access road was 575 feet west of the dirt pile. East of the north-south access road, a distance of about 500 feet, is a county road which turns north. The culvert removed was about 85 feet east of the center line of this county road and the dirt removed by Braden was piled to the west on the old highway roadbed, just east of the county road.
The pile of dirt in question was to be used as a refill for the excavation left by the removal of the culvert. There was evidence that the work in eradicating the shoofly and removal of the culvert was interrupted by wet weather.
On the evening of November 22, 1961, at about 9 p. m., the plaintiff was driving east on U. S. Highway 54 with his wife as a passenger. He followed the old route through the City of Eureka and proceeded east on the old road until he saw something in the road and realized it was a pile of dirt. He testified he was unable to avoid the collision with the dirt. His wife was seriously injured and taken to a hospital in Eureka.
Charles B. Williams, a state highway patrolman, arrived at the scene shortly after the accident. He testified he found plaintiffs automobile imbedded in a pile of dirt approximately thirty-five feet east of the county road which turned north. He further testified the only sign going east from Eureka on old U. S. Highway 54 was at the east edge of Eureka indicating the turnpike was so many miles. He did not find any signs, barricades or warning signs of any nature or the roadway. He found one A-frame and a 2x6 about eight to ten feet long in the north ditch, about 550 to 600 feet west of the accident scene, and an A-frame lying in the north ditch near the scene, but he did not find any sign or arrow on it. He did not find any glass or debris indicating a barricade had been struck by an automobile. While he was investigating the accident other cars came over the hill traveling rapidly and one car almost didn’t get stopped in time. He called the police station to have the police check with Mr. Sturdevant (the resident highway engineer) because he knew he needed signs or barricades at the location and he knew the engineer had them.
The first amended petition alleged the formal requisites, including service of notice of claim on the Director of Highways. It was further alleged that the complete blocking of traffic on the highway without any warning signs and without any access route being provided to circumvent the blocking, was a defect in said highway under the provisions of G. S. 1951 Supp. 68-419 (now K. S. A. 68-419), and that the State Highway Engineer and the Director of Highways had more than five days notice of the existence of such defect.
The trial court overruled a demurrer to the first amended petition and thereafter defendant filed its answer. In its answer defendant alleges that the relocated highway was completed and open to traffic on November 3, 1961, and was at all times thereafter duly marked as U. S. Highway 54; that between November 3 and November 10, 1961, all signs and markings on the detour highway were removed and at the time of the accident, on November 22, 1961, the area and place of accident was not a part of the state highway system and, therefore, defendant has no liability for the injuries and damages complained of. In its answer defendant further alleges that plaintiff and his wife were engaged in a joint enterprise and that the injuries of plaintiff’s wife were sustained by reason of the negligence of plaintiff in the operation of his vehicle.
In his reply to defendant’s answer plaintiff alleges that the part of old U. S. Highway 54 in question remained a part of the state highway system until the completion of the relocated highway and that even though the new highway had been opened to traffic it was not completed within the purview of defendant’s resolution and that, therefore, the segment of the old highway upon which the accident occurred had not been removed or withdrawn from the state highway system.
Defendant demurred to plaintiff’s reply. The demurrer was overruled by the trial court essentially on the ground that a question of fact existed as to whether the state highway commission had actually turned back the old highway to the county.
A pretrial conference was had and a pertinent portion of the pretrial order, which we believe fairly states the issues developed, reads as follows:
“Part of the issue to be resolved is whether or not a defect in the road existed by reason of the lack of warning of the discontinuance of the road, and whether or not the state highway commission was responsible for that lack of warning. The responsibility of the State Highway Commission is a mixed question of fact and law under the provision of G. S. 1961 Supplement, 68-406. Also, whether or not signs, barricades and warnings, if there were such, were sufficient to indicate what was State Highway 54, and as to the sufficiency of other barricades or warning signs as to tire particular defect which is alleged to have been a cause of the accident, and whether or not tire State Highway Commission had any liability or responsibility with reference thereto.”
On January 5, 1965, the action proceeded to trial which terminated in a verdict for plaintiff in the amount of $15,000. Post trial motions were heard and overruled by the trial court and this appeal was duly perfected by defendant.
Essentially, defendant contends on appeal that the defect in question was not on a state highway within the purview of K. S. A. 68-419; that the accident was directly caused by plaintiff under circumstances for which defendant was not responsible; and that the trial court submitted three erroneous instructions.
At the outset we should point out that from our examination of the evidence and instructions the issues as to contributory negligence of the plaintiff and whether or not the pile of dirt, and alleged absence of warning signs or barricades, amounted to a defect have been resolved in favor of the plaintiff by the jury’s verdict.
There remains then the controlling issue as to whether the defect was in a state highway at the time of the accident within the meaning of the statute. The questions raised by defendant with respect to the trial court’s instructions are contained within this issue because defendant’s objection to the court’s instructions is primarily based on the premise that the issue is one of law rather than fact and should not have been submitted to the juiy.
By way of preliminary framework it must first be pointed out that the liability of the commission is limited only to that which has been legislatively imposed by statute. The liability is predicated only on the existence of a defect and is not based on the law of negligence. (Cronin v. State Highway Commission, 182 Kan. 42, 318 P. 2d 1066; Lungstrum v. State Highway Commission, 177 Kan. 57, 276 P. 2d 346; Blessman v. State Highway Comm., 154 Kan. 704, 121 P. 2d 267; Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834.) These principles are so well-settled and firmly imbedded in our decisions that we believe further discussion unnecessary.
We turn then to consideration of the statutory liability imposed upon the commission with respect to the facts and circumstances reflected by tire record in this case. Omitting prerequisites as to notice and other matters about which there is no issue here, the liability of the commission is declared in K. S. A. 68-419 as follows:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state; . . .”
The pertinent provisions of K. S. A. 68-406, the interpretation of which we are primarily concerned with here, are as follows:
“. . . Highways designated under this act shall be state highways, and all other highways shall be either county roads or township roads as provided for elsewhere in the Kansas statutes. . . .
“. . . [A]nd the state highway commission may mark and maintain existing roads used by it or which may be used by it as detours but which shall not be a part of the state highway system: Provided, That such roads shall be marked and maintained by the state highway commission only until that portion of the state highway system for which such road is substituted is completed and open for travel.”
The difficult question of whether or not an alleged defect comes within the purview of the terms of 68-419, supra, was discussed in depth in the Cronin case. The question was said to be ordinarily a question of law and in summation it was stated:
“. . . In many of our reported decisions the conditions prevailing have been held to be defects in the highway within the meaning of such statutes — in many others not. However, it may be said that throughout all of these cases we have steadfastly adhered to the proposition there is no legal footrule by which to measure conditions generally and determine with exact precision whether a condition constitutes a defect and that in the final analysis it is the fixed policy of this court to handle each case separately and to either include it in or exclude it from the operation of the statute. . . .” (p. 45.)
We agree with the principles announced in Cronin and find no reason to change or alter them. However, we do not hesitate to say that if the defect described here, i. e., the pile of dirt completely obstructing the traveled portion of the highway allegedly without any warning signs or a barricade, if any, blocking only one traffic lane, was established by the evidence and the jury so found in this case; then the defect was clearly within the contemplation of the statute, as a matter of law. We have remaining then only the further question of whether or not such defect was on a state highway.
On this issue the commission bases its principal contention. The issue may be reduced to the question of when and by what cause did old U. S. Highway 54 cease to be a state highway. It should be kept in mind the defect complained of was on the roadbed of old U. S. Highway 54 or in line with it and not on the shoofly detour which was new construction.
The commission advances two arguments to support its contention the accident did not occur on a state highway. It is first argued that the portion of 68-406, supra, which reads:
“. . . [T]he state highway commission may mark and maintain existing roads used by it or which may be used by it as detours but which shall not be a part of the state highway system: . . .”
should be construed to mean the commission may designate any part of an existing highway as a detour and upon such designation immediately escape liability for any defects thereon. In other words, under the construction advanced as applied to this case the commission would have been immediately relieved of any liability for defects in old U. S. Highway 54 upon the adoption of the resolution of June 8, 1960.
Recognizing the principle that we have no right to enlarge the scope of the statute nor to amend it by judicial interpretation, we are nevertheless unable to apply the interpretation urged by the commission in this regard.
We find a more plausible and logical construction of the pertinent part of 68-406, supra, to be that the reference to “existing roads” was intended to indicate existing roads outside the state highway system. This construction we believe to be more in harmony with the further provisions of 68-406, supra, which read:
“. . . Highways designated under this act shall be state highways, and all other highways shall be either county roads or township roads as provided for elsewhere in the Kansas statutes . . .”
The commission attempts to support its position on this point by the cases of Lungstrum v. State Highway Commission, supra, and Summerville v. State Highway Comm., 139 Kan. 530, 32 P. 2d 224. In both cases the commission was held not to be liable for the reason that the defects complained of were on existing roads marked and maintained by the commission as detours. In Summerville, where a county road was taken over for use as a detour, it was stated:
“Whether the legislature has power to make the state liable for accidents due to defects on these temporary detours needs no present determination, but it has not done so, and has specifically limited liability to defects in roads that constitute a part of the state highway system. . . .” (p.532.)
In Lungstrum, the same principle was applied where the existing road taken over for use as a detour was a township road.
These cases support the established law that the state has no liability for defects on detours. The principle annunciated therein, however, is not applicable to the case at bar because, even though old U. S. Highway 54 was designated as a detour in the resolution, it was a state highway at the time and remained so until it was replaced by new U. S. Highway 54 on the completion and opening for travel thereof.
A logical reason for exempting the state from liability where it becomes necessary to reroute traffic on temporary detours during construction and to use county and township roads or to construct entirely new temporary roadways for such purposes is to protect the state from exposure to liability for defects when the use of such inferior roads, as detours, becomes necessary to implement the improvement and construction of highways in the state highway system. In Summerville v. State Highway Comm., supra, the reasoning was expressed as follows:
“. . . The state has given its consent to be sued for defects causing injury on the state highway system, but not on those happening on county and township roads. When repairs on the state system are necessary and the road is temporarily closed for that purpose, travelers are remitted to nearby county or township roads which are under the control of the county or township officers, and for defects on these units they are made hable by appropriate statutes. (Citing cases.)
“. . . The limits of recovery are that the accident must have happened on a road which was a state highway, and this one happened on a county road. The fact that it was a detour over a county road was for the mere convenience of the public, but no authority was given to the state to pay damages arising from defects therein.” (pp. 531, 532, 533.)
In the case at bar the road in question was not a county or township road or a road constructed by the state for temporary use as a detour. It was a state highway even though designated as a detour by resolution.
We shall next consider the all-important question, when did old U. S. Highway 54 cease to be a state highway and revert to Greenwood County? It is the commission s contention that such event took place at the precise time new U. S. Highway 54 was opened to the public at 10:30 a. m. on November 3, 1961. The plaintiff asserts, however, that the opening of a new highway to travel in and of itself is not enough to transfer the state’s liability from the old to the new. In support of this position plaintiff points out that both the statute (68-406) and the resolution of June 8, 1960, require not only the new road to be opened for travel but that it shall be completed.
The evidence is undisputed that considerable work remained on new U. S. Highway 54 after November 3, 1961, such as installing guardrail cable, guard fence, painting of guideposts, installing entrance pipes, and various other incidental work. According to the testimony of Harold Sturdevant, the resident engineer in charge of the project, this work was not completed until April 18, 1962. Sturdevant testified that within a few days after November 3, 1961, all of the warning signs on the old highway were removed. His testimony in part, as narrated in the record, is as follows:
“The State Highway Commission did not put any signs on the road to the west of the construction work to indicate that the road was no longer in existence other than a single barricade (referred to as a sawhorse barricade) in the north lane of traffic. It was the intention of the State Highway Commission to allow traffic to continue beyond the point of this barricade for those persons who may wish to turn north at the point of the construction work. The road was never closed. The road has subsequently been rebuilt in the approximate location of the old shoefly detour. The sawhorse barricade erected by the maintenance department was not designed to block the whole road and the south lane of traffic was left open for people who lived in that area. It was never the intention of the highway commission to stop traffic on the road.
“To the knowledge of the witness there was never any kind of barricade or sign blocking the south lane of traffic on old U. S. 54. To his knowledge there was never any sign from the edge of Eureka to the end of the blacktop on old 54 from the opening of the new road to the time of the accident, with the possible exception of the sawhorse barricade, which would have warned people that the road did not continue. . . .
“The Topeka office or the main office of the State Highway Commission was not informed that the project was completed until this engineer sent in his reports after April 18, 1962, at which time this engineer communicated with the division engineer with regard to the completion of the project on April 18, 1962.
“. . . The witness did not know whether or not the Chanute office of the State Highway Commission had communicated with the Greenwood County Commissioners and told them that this highway was turned back to the county on April 25, 1962.”
We cannot agree with the assertion of plaintiff that old U. S. Highway 54 remained a state highway until April 18, 1962. We are inclined to believe the critical time factors to be the time at which the new road actually became open to travel by the public as a state highway and the time at which old U. S. Highway 54 was actually withdrawn from public use as a part of the state highway system and the traveling public directed accordingly. As indicated in the pretrial order, the trial court adopted the theory that the question involved was one of mixed law and fact to be determined by the jury within the framework of the principles of law involved. The commission contends tie question to be purely a matter of law. Neither party cites controlling cases. Resort to several decisions sheds considerable light on the issue.
In Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509, a new highway was designated by the commission and, in an action alleging a defect therein, the question came before the court as to when the highway became open to public use and liability of the commission attached. In the Payne opinion the following statement appears:
“There may be a defect in. a state highway before it is improved or constructed, but liability under the statute does not arise until such highway is open for travel. This is the fundamental basis of liability. Designation is the first step in the establishment of a state highway, but does not necessarily open it for travel. It is not open for travel until there has been extended to the public an invitation, expressed or implied, to use such highway. When a highway is open for travel may, under certain circumstances, be a question of law for the court. On the other hand, cases may arise where it would be a question of fact for the jury to determine under all of the circumstances of the particular case. It is clear to us that the legislature did not intend liability should arise against the state for defects on the mere designation of a strip of land as a highway. The construction of the highway must have reached a point where the ordinary prudent person would be warranted in believing that it was open to public use and a safe place to travel. . . .” (p. 565.)
In Thummele v. State Highway Comm., 160 Kan. 532, 164 P. 2d 72, a resolution very similar to that herein was adopted by the commission pursuant to which a segment of U. S. Highway 50S near Kinsley was designated as a detour highway until a designated new route was completed and open for traffic. The accident in question occurred on the new project, prior to the time the new project was officially opened for public travel and when the old highway was still identified as U. S. Highway 50S. In adopting plaintiff’s theory that the question of whether or not the new project was open to travel by implication was a question for the jury, it was stated in the opinion:
“. . . Consequently, it is the opinion of the court that the statement hereinbefore quoted from the case of Payne v. State Highway Comm., supra, is controlling and that the trial court was justified in submitting to the jury the question, among others, whether the project had been opened for public travel by implication. In such connection it should be noted that under the evidence submitted it cannot be said, as a matter of law, that the condition of the project at the point of its intersection with the township road was such that it did not invite public traffic or that an ordinarily prudent person would not have been warranted in believing that the project was open and a safe place to travel. Such a question was for the jury. So far as the traveling public is concerned, a highway is open if by its condition it presents, in the mind of an ordinarily prudent person, an invitation to travel thereon. . . .” (p. 538.)
Applying what was said in Thummel and Payne to the case at bar we believe the evidence here to to be sufficient to raise real questions of fact as to whether or not the new highway was actually open, with adequate signs directing its use by the public, and whether or not the absence of adequate directional signs left an invitation to the public traveling U. S. Highway 54 to continue the use of the old highway.
In other words we do not believe, that under the evidence in this case, it can be said, as a matter of law, that as to the traveling public the segment of old U. S. Highway 54 in question had been withdrawn from the state highway system. Certainly, as was stated in Payne, the mere designation of a new location does not give rise to liability for defects thereon. Applying this principle to the instant case, the mere designation of a relocation does not relieve liability for defects in the existing highway until the traveling public has been adequately informed that the relocation has become the state highway and the existing highway has been withdrawn from the system.
The record reveals a sharp dispute as to the existence of the directional signs at the beginning of the new location on the date in question. Roth the resident highway engineer and the highway commission maintenance supervisor testified that adequate directional signs were in place on November 3, 1961, and at all times thereafter. The maintenance supervisor further testified that on November 16, 1961, the conventional size confirmation U. S. route marker 54 and arrow thereunder were replaced with an oversized confirmation U. S. marker and arrow; that he made a personal inspection on said date and that the oversize signs were in place. As we have indicated, plaintiff testified to the contrary that there were no such signs in place on November 25, 1961, three days after the accident. The highway employee who erected the signs, Eddie Brothers, as we have previously indicated, testified he did not know when he erected the signs.
A photograph of the intersection of Main and River Streets was received in evidence and identified as defendant’s Exhibit 2. The date on which the photograph was taken is not shown in the record. When questioned concerning the photograph Brothers testified that a Skelly Oil Company service station shown to be on the southeast corner, adjacent to the directional sign, was not there when he erected the sign. He testified that at that time the lot was occupied by an old creamery building that was empty at the time with a large opening in the side. Paul Parks, called as a rebuttal witness for plaintiff, testified that he was the lessee of the Skelly Oil Company service station, that the location was occupied by an old creamery building until construction started on the Skelly station on February 14, 1962, at which time the creamery building was demolished. Parks further testified that the old creamery building was leased to one M. C. Wallace who used it for storage up until the time construction of the station started. From this testimony it appears the photograph was not taken until after the construction of the service station, which was not commenced until February 14, 1962. Some inference might be drawn, as plaintiff claims, that the sign was not erected until on or near that date since Brothers testified the building was empty when he erected the sign and Parks testified that Wallace had things stored in the building up until the time construction started.
Even though the weight of the evidence might appear to favor the defendant on this point, the jury has resolved the question in favor of plaintiff and we are bound thereby since we are compelled to view the evidence in the light most favorable to sustaining the verdict. (Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670.)
Furthermore, since the plaintiff prevailed in this trial, the general verdict of the jury has resolved all issues of fact supported by the evidence in his favor. (Blakey v. Zirkle, 187 Kan. 562, 358 P. 2d 758; Grisby v. Jenkins, 183 Kan. 594, 331 P. 2d 284; Dinsmoor v. Hill, 164 Kan. 12, 187 P. 2d 338.)
The effect of the jury’s verdict in the case at bar, under the instructions submitted, is not to be construed that the lack of adequate directional signs at the junction of the old and new highways was a defect within the terms of the statute but that by way of absence of such signs an invitation was left with the traveling public to con tinue using old U. S. Highway 54 upon which the defect existed for which liability attached. In this connection instruction 12A defined the liability of defendant as follows:
“You are instructed that if the defendant is liable to the plaintiff in this action it is by reason of a defective condition of the highway under the provisions of the state quoted and not by reason of negligence on the part of the defendant or its employees.”
We have considered the instructions in their entirety and, with reference to instructions 13A, 17 and 18, to which defendant objected, we find the issues involved in those instructions to have been fairly submitted to the jury. Those issues were whether or not proper and adequate signs were sufficient to indicate to the traveling public that the new road was U. S. Highway 54 and that the old road was no longer U. S. Highway 54 and whether or not a dangerous condition existed at the place of the accident and if so had adequate warning signs been erected.
Instruction 18 properly informed the jury as to the defendant’s duty concerning barricades with reference to a defect if one existed.
Lastly, defendant contends the accident was directly caused by plaintiff and under circumstances for which defendant was not responsible. The jury was properly instructed as to negligence, as to contributory negligence on the part of Loretta Schroder, as a passenger and as to causation. Pursuant to the instructions submitted and under the evidence adduced the general verdict of the jury resolved the issue of causation.
The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from a denial of a motion filed under the provisions of K. S. A. 60-1507 in the district court of Jewell county.
On December 10, 1962, the petitioner, Wilbur Edward Allen, was charged in the county court of Jewell county with the crime, of murder in the first degree (G. S. 1949 [now K. S. A.] 21-401) for the death of one, John Maxwell. Upon being brought before the court on December 17, Allen, without counsel, waived a preliminary examination and was bound over to the district court for trial. On January 2, 1963, an information was filed, and the following day Allen appeared before the district court and requested that counsel be appointed. Subsequently, the court appointed Harry Gantenbein and Arno Windscheffel. On March 18, Allen was arraigned on the charge contained in the information and entered a plea of guilty. His plea was accepted, and the court proceeded, in accordance with G. S. 1949 [now K. S. A.] 21-403, to hear evidence for the purpose of determining punishment.
The state introduced, without objection, Allen’s written statement given at Ocala, Florida, on December 10, 1962, to two agents of the Kansas Bureau of Investigation. Allen, after being fully advised of his rights by the agents, related in the statement that one evening in the forepart of August 1962 he pulled into a service station just south of Superior, Nebraska, and after the attendant filled the car with gas at Allen’s direction, Allen told the attendant that he [Allen] would have to go to town and get money to pay for the gas, whereupon the attendant said Allen could not move the car until the gas was paid for; that Allen pulled a gun from his pocket, pointed it at the attendant, and the gun went off twice; that the attendant fell to the floor and Allen removed a billfold from the attendant’s pocket and took $105 from it; that Allen was driving a 1960 Chevrolet automobile in which he was later stopped by an officer in Plainville, Kansas; that he left the gun in the automobile and that he planned only to rob the attendant, rather than to shoot him, and that “it just happened.” Other evidence was adduced showing that a .22 caliber Beretta was found in the front seat of the 1960 Chevrolet described as the one driven by Allen at the time of the killing. Ballistics tests revealed the bullets removed from the body of the victim were fired by the gun, and Allen orally admitted to the officers that the gun found in the car was the one he had used at the time Maxwell was killed. The filling station was located in Jewell county, fifty or seventy-five feet south of the Kansas-Nebraska state line. Allen offered no evidence, and the court thereupon sentenced him to life imprisonment in the state penitentiary.
On April 4, 1966, Allen, pro se, filed his 60-1507 motion on the prescribed form (Rule No. 121, 194 Kan. xxvrr), along with a brief in support thereof. The-grounds for relief were substantially those now raised on appeal, and no witnesses or evidence were listed in support of any of the allegations. The motion was presented to the district court on June 6 for the purpose of determining if any "substantial grounds for relief” were contained therein. Harold N. Jordan, privately retained counsel, appeared and argued the matter for the petitioner. The court determined the files and records of the case conclusively showed petitioner was entitled to no relief, and the motion was denied. From this order Allen has appealed, and Mr. Jordan has been appointed counsel.
Petitioner urges that the allegations of his motion required that the court grant him a full evidentiary hearing. In deciding this overall question, we shall examine the four points assigned as error on appeal.
First, petitioner contends that he was not fully and adequately advised of his constitutional rights at the time of his arraignment and plea in the district court. To what rights he refers is not entirely clear. Nevertheless, we believe the record shows the contention is patently unfounded. On February 7, 1963, petitioner appeared before the court with his court-appointed attorneys, and upon his attorney’s request arraignment was postponed so that they could confer further with their client. Arraignment took place more than a month later on March 18. After the information was read, the following proceedings transpired:
“The Court: You are now required to plead to the Information. You may stand mute and not answer anything; in which event the Court will order a trial by jury. You may enter a plea of not guilty. If so, the court will order a trial by jury. Or, you may enter a plea of guilty. A plea of guilty to the Information charging you [with] First Degree Murder means that you may be imprisoned for life or suffer the death penalty. Having been informed by the Court, and I take it informed by your attorneys, how do you plead to the Information read to you?
“Mr. Windscheffel: If it please the Court; as one of the co-counsel for the defendant; I have conversed with the defendant on various and several occasions, and as the Court has asked the defendant, again this morning. We have read to him the statute pertaining to the penalty on the charge as filed herein. And, after having informed the defendant, and visited with him on the several occasions that we have talked with him, we now enter a plea of guilty as charged.
"The Court: Now, to the defendant, what do you have to say?
"The Defendant: I plead guilty, sir.
“The Court: You plead guilty. Do you understand what the plea may mean?
"The Defendant: Yes, sir.
“The Court: Have any promises been made to you?
“The Defendant: No, sir.
“The Court: You may be seated. Well, I accept your plea, but that doesn’t end the matter in a First Degree Murder charge. We will have to hear evidence on the question of punishment, . . . When do you want to present the case? If you are ready to proceed now, I am ready.
“Mr.. Windscheffel: We are ready to proceed, your honor.”
Petitioner specifically complains he was not advised that he had a right to appeal. In his motion the petitioner lists no witnesses or evidence to support his assertion. Hence, it must be assumed that counsel fairly and fully advised the petitioner of his rights, including the right to appeal. (Ware v. State, 198 Kan. 523, 426 P. 2d 78; State v. Robertson, 193 Kan. 668, 396 P. 2d 323.) The record is silent about whether or not the district court so advised him, but assuming the district court failed in this respect, it does not follow that petitioner was denied any constitutional right. An appeal to this court by one convicted of a crime is not a right guaranteed by the constitution of this state (Constitution of Kansas, Art. 3, § 3); neither is it a fundamental right guaranteed by the Constitution of the United Sates or a requisite of due process of law guaranteed by the fourteenth amendment. Thus, failure to advise the petitioner of his right to appeal in no way deprived him of any constitutional right. (Ware v. State, supra, and cases cited therein.)
Petitioner next asserts the information failed to allege that the offense was committed during the commission of a felony, and therefore, under the facts, it could not form the basis for a judgment and sentence for murder in the first degree. We note the form or sufficiency of the information was never challenged in any way throughout the proceedings. The pertinent part of the information is as follows:
“. . . one Wilbur Edward Allen did then and there unlawfully, feloniously and wilfully, intentionally, deliberately and premeditatedly, on purpose, and with malice aforethought, kill and murder one John Maxwell, a human being, by shooting him, the said John Maxwell, with a certain loaded .22 calibre automatic pistol thereby mortally wounding said John Maxwell and then and there and in said manner causing the death of him, the said John Maxwell,
From the evidence adduced at the hearing to determine punishment, it appears without question the victim was killed by the petitioner during the perpetration of a robbery. It is well established in this state that an information in the ordinary form, charging that a killing was done with malice aforethought, deliberation and premeditation, is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a robbery under K. S. A. 21-401. (State v. Turner, 193 Kan. 189, 392 P. 2d 863 [information with nearly identical language to that of the instant case]; State v. Roselli, 109 Kan. 33, 198 Pac. 195.) As part of his argument, petitioner further contends his confession shows he could only have been convicted of robbery in the first degree. A short answer to this is that he pleaded guilty to the information which clearly charged him with the crime of murder in the first degree in the language of the statute. This court has repeatedly held that an accused’s voluntary plea of guilty in a criminal case is a confession of guilt of the crime charged and every fact alleged therein, and that legally it is the most formal and binding confession possible for him to make (Wagner v. State, 199 Kan. 154, 427 P. 2d 495; McCall v. State, 196 Kan. 411, 411 P. 2d 647; State v. Dexter, 191 Kan. 577, 382 P. 2d 462, cert. denied 375 U. S. 948 11 L. Ed. 278, 84 S. Ct. 359; State v. Downs, 185 Kan. 168, 341 P. 2d 957), and once a plea of guilty has been voluntarily entered by an accused, there is absolutely no necessity to introduce any evidence to maintain the conviction. (McCall v. State, supra.)
Petitioner next contends he pleaded guilty because of his confession which was obtained during undue delay in “arraignment” without counsel. The contention is untenable for several reasons. In the first place, if petitioner is complaining that the confession was inadmissible at trial, he overlooks the significance of his plea of guilty. The confession was admitted without objection and was used only for the purpose of determining the punishment to be assessed after his plea of guilty; so whether or not it would have been admissible at a trial where the issue of guilt or innocence was to be determined is entirely irrelevant. (Baier v. State, 197 Kan. 602, 419 P. 2d 865, and cases therein cited.) In the second place, if petitioner is attempting to say his plea was not freely and volun tarily made, he sets forth nothing other than his uncorroborated statement that he did so because of his confession, which, presumably, he now contends was involuntary. On the same day the petitioner was charged with the crime, he gave his confession in Florida. Seven days later, upon being returned to Kansas, he appeared before a magistrate. Under such circumstances, the confession could not be said to be the product of detention. (See State v. Stubbs, 195 Kan. 396, 407 P. 2d 215.) Furthermore, an accused’s confession made during a pretrial interrogation is not rendered inadmissible solely because it was made at a time when the accused did not have counsel. (State v. Brown, 198 Kan. 473, 426 P. 2d 129, and cases cited therein.) From what has been said, petitioner’s allegation, in face of the record on the point, raised no substantial issue of fact.
Finally, petitioner contends he waived preliminary hearing without advice of counsel, that such waiver was not in writing, and that this was a critical stage of the proceedings. There is no requirement under our law that a waiver of preliminary examination must be in writing. (Palmer v. State, 199 Kan. 73, 427 P. 2d 492.) Ordinarily, a preliminary examination is not deemed a critical stage of the proceedings in this jurisdiction. (State v. Richardson, 194 Kan. 471, 399 P. 2d 799.) Inasmuch as an indigent accused has no constitutional right to appointed counsel at a preliminary examination, failure to provide counsel at such time does not constitute reversible error, absent a showing of prejudice to his substantial rights. A number of our recent decisions to this effect are found in Brown v. State, 198 Kan. 345, 424 P. 2d 576. Nor is a waiver of such examination rendered ineffective because the accused was without counsel at the time. (Powers v. State, 194 Kan. 820, 402 P. 2d 328; State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743.) In addition, petitioner’s voluntary plea of guilty to the charge against him constituted a waiver of any alleged irregularities occurring at the preliminary examination stage. (Witt v. State, 197 Kan. 363, 416 P. 2d 717; Coats v. State, 196 Kan. 607, 413 P. 2d 81; Byrd v. State, 196 Kan. 466, 413 P. 2d 61; Smith v. State, 196 Kan. 438, 411 P. 2d 663; State v. Bethea, 196 Kan. 188, 410 P. 2d 272.)
From an examination of the record we find that the judge of the county court fully advised the petitioner of the purpose of a preliminary examination, including his right to counsel, and that peti tíoner consented to being bound over to the district court. We find nothing to indicate that petitioner’s substantial rights were prejudiced in any way by the lack of counsel at the time he waived preliminary examination.
Although not stated as a separate point on appeal, petitioner, in his brief, asserts that at the time of the alleged offense he was of unsound mind, and that all parties concerned were aware of his mental condition. There is no indication in the record that the matter was ever raised throughout the entire proceedings. The question of mental responsibility must be presented and determined during trial, and is not properly justiciable in a subsequent 60-1507 proceeding. (Kiser v. State, 196 Kan. 736, 413 P. 2d 1002.)
We are of the opinion the district court correctly concluded that no plenary hearing was required on the grounds asserted in petitioner’s motion. The issues raised were determinable from the files and records, and the court’s denial of relief was fully warranted. (Peterson v. State, 198 Kan. 26, 422 P. 2d 567; Kenreck v. State, 198 Kan. 21, 422 P. 2d 894; Smith v. State, supra.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from landowners’ dissatisfac tion with an award in a condemnation proceeding. The landowners appealed from the appraisers’ award and have now appealed to this court from the verdict of the jury in the district court.
The foundation facts may be briefly stated.
On April 1, 1964, the City of Wichita condemned certain land owned by appellants for the construction of Interstate Highway 35. The original land consisted of approximately 2.8 acres located on the east side of K-15, a four lane highway, and south of Wassal Street. The landowners had developed a substantial residential area and retained the tract in question for commercial development. The taking involved 2.46 acres, leaving a .34 acre triangular tract.
On appeal to the district court the jury returned a verdict for the landowners in the amount of $34,500. This was $6,000 less than the award of the court appointed appraisers. The landowners on appeal to this court allege numerous trial errors which they contend require the granting of a new trial.
We will first review the alleged errors which we consider to be the most prejudicial.
Appellants complain that the trial court erred in allowing an expert witness to use the sale price in an option contract as evidence of the value of comparable land. We are forced to conclude that the complaint is well founded. This court has not heretofore passed on the question and the courts of other states are divided on the propriety of such testimony.
We are inclined toward the rule that an option to purchase can be of no help to a jury in determining market value because of the opportunity for collusion and bad faith where the optionee has no obligation to buy and other possible contingencies exist.
Appellants further suggest that a witness for the appellee was permitted to refuse to testify on the basis of claimed privilege when in fact no privilege existed.
The witness testified as to his opinion of the present market value of the property which was based on the sale price of comparable properties in the community. The appellants attempted to test the witness’ credibility by questioning him as to his appraisal of property in the community for mortgage loan purposes. The record discloses the following:
“Q. Would you tell the Jury the total value you put on the land under the South City Center there?
“Me. Farmer: Now if the Court please, I want to object to this as getting away off into things that have no consideration—
“The Court: Overruled. I am going to permit him to answer.
“The Witness: May I ask you a question, Your Honor, about this, in answering this? This appraisal was made recently for, as Mr. Harris said, for mortgage purposes. The mortgage transaction is not complete.
“The Court: All right. I will not require you to answer under those conditions.
“The Witness: I don’t think in fairness to my client that I should.”
The trial court later stated that he would not require the witness to testify without permission of his client. The court also stated on motion for a new trial:
“There are certain things in the business world that you can not divulge without sacrificing your reputation and also the betrayal of confidences; and at the time I ruled I thought that existed with reference to this witness on the questions you were asking on cross-examination.”
Again the court stated:
“. . . True, in the business world today they are not exempt by statute, but this Court is not going to-order the disclosure of negotiations, just the same as this Court will not order trade secrets or other matters with reference to businesses disclosed. And that was the basis upon which Court ruled at the time.”
K. S. A. 60-407 abolishes generally privileges of witnesses and exclusionary rules. It provides in part:
“Except as otherwise provided by statute . . . (b) no person has a privilege to refuse to be a witness, . . . and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, . . .”
It would appear that there are no privileges or immunities from testifying unless they are specifically set out in the Rules of Evidence as found in Article 4 of the new Code of Civil Procedure. We find no privilege not to testify in connection with an ordinary business transaction. The appellee relies on K. S. A. 60-432 which provides:
“The owner of a trade secret has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose the secret and to prevent other persons from disclosing it if the judge finds that the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.”
An appraisal of property for a loan company, which anticipates loaning money on the property, is not encompassed within the term trade-secret. Black’s Law Dictionary, Fourth Edition, defines trade-secret as follows:
“A plan or process, tool, mechanism, or compound known only to its owner and those of his employees, to whom- it is necessary to confide it, [Citations omitted.] A secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value. [Citations omitted.]”
An appraisal of real estate by one hired to perform such task is not a trade-secret within the meaning of K. S. A. 60-432, and the witness was not privileged to refuse to testify. Whether the evidence was relevant was not considered by the trial court and is not considered here.
Appellants contend that the trial court improperly limited the landowners as to the number of witnesses. Under the circumstances in this case we are inclined to agree.
At the pretrial conference the opponents in the litigation were directed to exchange with each other the names and addresses of the witnesses they planned to call at the trial of the case. The appellants advised the appellee that they intended to call five experts and so advised the jury in the opening statement. No suggestion was made as to limiting the number. At the trial, after three of appellants’ expert witnesses had testified, the trial court announced that the litigants would be limited to three expert witnesses on a side.
Generally speaking the court has wide discretion in limiting the number of expert witnesses and three would not be considered unreasonable. However, one of the witnesses testified only to the most advantageous use and the landowners were limited to two experts as to actual value. It is also quite possible that appellants had reserved their two best witnesses to conclude their case.
If the trial court desired to exercise its discretion to limit the number of expert witnesses it should have given the parties warning before the presentation of the evidence was commenced. We are impressed with the statement in 5 Nichols on Eminent Domain, 3d Ed., §18.44 [2], p. 264. as follows:
. . But even when the evidence of all the witnesses is directed to the same point, the limitation should be imposed before any of the expert testimony has been offered; for if the court, after a certain number of experts have testified on one side, refuses to allow any more to be put on the stand by the same party, it may do that party an injustice, since counsel may have reserved his best witnesses to conclude his case; . . .”
For the reasons heretofore stated the judgment must be reversed and a new trial granted.
There are, however, other disputed trial issues which should be decided for the benefit of the litigants before the case again goes to trial.
The appellants contend that it was error for the trial court to permit expert witnesses for the condemning authority to testify on direct examination as to the purchase price of specific tracts of neighboring land. This was definitely prohibited prior to the new Code of Civil Procedure. This court had stated that in condemnation proceedings opinions as to the value of property should be confined to the property in question, unless on cross-examination, for the purpose of testing the knowledge and competency of the witness the value of adjoining land is inquired into. (See Luecke v. State Highway Commission, 186 Kan. 584, 352 P. 2d 454, and cases cited therein.)
Appellants contend that the rule should still be followed. We are of the opinion that such exclusionary rules were specifically abolished by the rules of evidence included in the new code.
The Advisory Committee in submitting the rules of evidence for the consideration of the legislature noted:
“The purpose of the rules is to make admissible evidence which logically tends to establish a fact. All evidence is to be admissible unless specifically restricted.” (Kansas Code of Civil Procedure, Gard, p. 362.)
Relevant evidence is defined:
“ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” (K. S. A. 60-401 [&].)
Exclusionary rules are abolished by K. S. A. 60-407 which provides in part:
“Except as otherwise provided by statute . . . (/) all relevant evidence is admissible.”
It was noted by the Advisory Committee:
“This rule wipes out all existing restrictions and privileges and limitations on the admissibility of relevant evidence. They are then reinstated by subsequent sections insofar as desirable. . . .” (Kansas Code of Civil Procedure, Gard, p. 370.)
As all exclusionary rules were wiped out and none were reinstated as to the use of the purchase price of a specific tract of neighboring land to prove value, we are forced to conclude that the legislature intended to do away with the exclusion.
It must be understood, however, that such evidence must present the purchase price of a sale of comparable land which was not so remote as to time and distance as to be irrelevant. The determination of this fact is to be left to the sound discretion of the trial court. Most of such factors go more to the weight to be given the testimony than its admissibility.
Appellants complain of the trial court’s ruling on the admissibility of certain plats and photographs. These were submitted for the purpose of showing the most advantageous use to which the property may have been put. Without discussing each of the eight exhibits separately it may be stated as a general rule that photographs and drawings are admissible to show a possible scheme of development for the purpose for which the land is most available. In 5 Nichols on Eminent Domain, 3d Ed., §18.11 [2], at page 157, it is stated:
“. . . Thus, evidence of the market value of the property for the best and most profitable use to which it may be devoted in the reasonably near future is admissible.
“As bearing upon these issues the owner may offer a plan showing a possible scheme of development for the purpose for which it is most available, provided it appears that the likelihood of demand for the property for that purpose is such as to aifect market value. . . .”
The rule was applied in C. K. & N. Rly. Co. v. Davidson, 49 Kan. 589, 31 Pac. 131 and Van Welden v. Ramsays Inc., 199 Kan. 417, 430 P. 2d 298.
It will also be understood that distorted photographs or drawings so colorful as to distract the attention of the jury should not be admitted. This is a matter that must be left to the discretion of the trial court.
The appellants contend the trial court erred in instructing the jury that: “The burden of proof is upon the landowners to establish the amount of compensation to be paid.” They suggest that K. S. A. 26-513 provides:
“Private property shall not be taken or damaged for public use without just compensation.”
and the trial of a condemnation action violates the statute and constitutional prohibitions unless just compensation is awarded regardless of the burden of proof.
There is much merit to appellants’ suggestion.
The instruction as given above is the same as that placed in the Pattern Instructions for Kansas. (P. I. K. 11.02.) However, the committee drafting such instructions expressed the belief “that because of the special nature of the land condemnation case a burden of proof instruction is not practical or helpful.”
There is no uniformity among the authorities as to the necessity of giving such an instruction or the nature of the instruction that should be given.
If the appraisers’ award were disclosed to the jury, the burden of proof could well be placed on the landowner to prove a higher value and on the condemner to prove a lesser value. However, since the appraisers’ award is not so disclosed and in view of the fact that in condemnation proceedings there is no formal joinder of issues, we conclude that the general doctrine of burden of proof is inapplicable. A general discussion of the question, with annotations, will be found in 5 Nichols on Eminent Domain, 3d Ed., §18.5, p. 300. It should be understood we do not find such an instruction standing alone to be sufficiently prejudicial to justify a reversal.
What has been said as to the burden of proof in no way reflects on thé rule requiring the landowner to go forward with the evidence. Orderly and consistent procedure requires that one of the litigants be required to so proceed in all cases.
For the reasons hereto given the judgment is reversed with instructions to grant a new trial.
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The opinion of the court was delivered by
Fontron, J.:
This action was instituted by the plaintiff, Marvin H. Talley, to recover damages for personal injuries suffered when an overhead heater slipped from its moorings and fell, striking him in the back. A substantial judgment was recovered against all three defendants and they in unison have appealed.
At the time of the accident plaintiff operated the Skelly service station at the intersection of Topeka Avenue and Fourth Street in the city of Topeka, having subleased the station from the defendant, Skelly Oil Company which, in turn, had leased the property from its owner, Harold E. Doherty. The defendant, Dennis Dressier, d/b/a Dressier and Company, is the general contractor who constructed the building while the defendant, Avalon Heating and Air Conditioning, Inc., installed the offending heater under a subcontract with Dressier. For convenience, as well as for clarity, the plaintiff and appellee, Talley, will be referred to herein as plaintiff, while the defendants and appellants will be designated as Skelly, Dressier and Avalon, respectively.
On June 1, 1961, Doherty and Skelly entered into a lease agreement under the terms of which Doherty was to construct a special type filling station in accordance with plans and specifications furnished by Skelly. On completion of the building, Skelly was to have ten days for inspection and if the building was found to comply with Skelly’s plans and specifications which were to be furnished to Doherty, Skelly was to take possession for a primary term expiring May 31, 1971, at a specified monthly rental plus a percentage on gallonage above a specified base figure.
In due course Doherty let a contract to Dressier for erecting the station and Skelly thereupon provided the plans and specifications to be followed. The plans called for two overhead heaters, but contained no directions or specifications for attaching the same to the building. Dressier, the general contractor, in his turn, subcontracted the heating work, including installation of the heaters, to Avalon.
During the period of construction Skelly furnished one of its own employees to- inspect and supervise the job, who from time to time would advise Doherty whether the work was being performed properly and whether bills submitted by Dressier should be paid. Before final payment for the job was made to Dressier, Skelly’s inspector undertook a final inspection, in company with Dressier, after which he approved the job for final payment and accepted the building as meeting Skelly’s specifications. In this inspection a printed checklist was used and completed.
Skelly took possession of the filling station on approximately November 1, 1961, after its inspector had given it his final approval. On November 17, 1961, Skelly subleased the station to plaintiff on a Skelly Oil Company printed lease form which contained an exculpatory clause which will later be referred to in detail.
Plaintiff took immediate possession of the station under his lease and was operating the same when the accident occurred on October 28, 1963. The heater which fell from the ceiling and struck the plaintiff was located in the lube room. Plaintiff testified that before the accident he did not know the heater was suspended from the ceiling by nails; that the building was fully painted before he moved in, and there was nothing to call his attention to the nails which were in the two-by-four.
The heater was installed by Avalon, the subcontractor, in this manner: first it was attached to a short piece of two-by-four by means of two flanged pipes, which extended through the two-by-four, and this board, with the heater hanging therefrom, was then nailed to two ceiling joists. There was a wealth of testimony that this was not a proper or acceptable method of installing or suspending this 265 pound heating device.
As we have previously stated, plaintiff joined all three defendants in this lawsuit, alleging negligence on the part of all. Separate answers were filed by the defendants each of whom denied liability and set forth his respective defenses.
After Skelly s motion for summary judgment had been overruled, the case proceeded to a jury trial against all three defendants. Each defendant filed a motion for directed verdict at the close of plaintiff’s evidence, and each was overruled. At the conclusion of all the evidence each defendant again filed a motion for directed verdict and again their motions were denied. At this juncture, the defendants requested certain instructions, which were refused, and the three defendants then objected to the court’s instructions as given. After a verdict was returned against all defendants, Skelly and Dressier each moved for judgment notwithstanding the verdict, or in the alternative for a new trial, while Avalon moved to set the verdict aside or, in the alternative, for a new trial. These final motions being overruled, all defendants appealed. From this recitation it will be observed that the defendants have not slept on their appellate rights.
Since each defendant disclaims liability on a different ground, it is essential that we discuss their appeals separately, even though this method of treatment may add to the length of this opinion.
We turn first to Skelly, whose sole contention on appeal is that the exculptaory clause in its lease with the plaintiff is a valid defense to plaintiff’s claim. This clause reads as follows:
“Lessee, for himself, his heirs, personal representatives and assigns, hereby covenants and agrees to indemnify, protect and save harmless Lessor, its successors and assigns, of and from any and all claims, demands and liability for any loss, damage, injury or other casualty to property (whether it belong to either of the parties hereto or third persons) and to persons (whether third persons, Lessee or employees of Lessee), caused by, growing out of, or happening in connection with Lessee’s conduct of said business or use and occupancy of said premises or buildings, improvements, equipment, or appliances located or to be located thereon, whether due to negligence of Lessee, Lessor, or otherwise.”
The plaintiff does not deny that this clause is contained in his lease with Skelly, but he maintains that it is void as against public policy. Thus the issue is joined between plaintiff and Skelly: Is the exculpatory clause valid, and does it constitute a defense to plaintiff’s cause of action under the facts of this case?
Exculpatory or exemption clauses are not strangers to the law of this state. In Grain Co. v. Railway Co., 94 Kan. 590, 146 Pac. 1134, the railway company leased a strip of right-of-way to plaintiff for erecting a grain elevator. The lease provided that the lessee should assume all risk of loss or damage to its elevator and contents arising from the movement of lessor’s locomotives and the operation of the railroad whether or not the loss resulted from the lessor s negligence. In an action filed against the railway company for damages resulting when one of its freight cars ran into the elevator, this court ruled that the exempting clause was- not invalid as contravening public policy and that it precluded plaintiff’s recovery.
That ruling was followed in Thirlwell v. Railway Co., 108 Kan. 700, 196 Pac. 1068, where the defendant, pursuant to a written agreement, built a spur track for plaintiff’s use. The agreement contained a provision relieving the railroad company from liability for fire loss caused by defendant’s locomotives. This provision was held to be valid and to bar plaintiff’s right of recovery.
In a later case, Riddle Quarries, Inc. v. Thompson, 177 Kan. 307, 279 P. 2d 266, this court considered a temporary license granted plaintiff by the defendant, acting as trustee of the Missouri Pacific Railroad Company, to store limestone on a portion of the railroad right-of-way. The licensee covenanted to indemnify the licensor from all damage caused licensee, whether or not due to licensor’s negligence, and to assume all risk of loss by fire however caused, whether by licensor’s negligence or otherwise. In upholding the validity of the provisions protecting the railroad company, the court said:
“Such provisions in a license such as is here considered, are valid. As between individuals in which the public is in no way concerned, railroads may make such contracts for storage’ on right of way, for the erection of buddings such as elevators, warehouses, lumber yards, and construction of spur tracks and buildings used in connection therewith. . . .” (p. 312.)
The plaintiff argues however that the exculpatory clause in the Skelly lease is void under the authority of Hunter v. American Rentals, 189 Kan. 615, 371 P. 2d 131. We believe plaintiff misapprehends the reach of the Hunter decision. In that case Hunter leased a car trailer from American Rentals under a contract in which he absolved the rental company of responsibility and indemnified it against liability in case of accident and, further, waived all claims against American Rentals, including those resulting from either latent or apparent defects.
An agent of the rental company attached the trailer to the bumper of Hunter’s car by means of a ball hitch and attached a chain from the trailer to the car but failed to provide an adequate safety hitch as required by statute. On the way to Oklahoma the hitch broke and the trailer began to sway from side to side overturning the car and injuring Hunter. Hunter sued to recover for his injuries and American Rentals pleaded the rental agreement in defense. This court held, however, that the exculpatory provision of the contract “contravened the statute and the public policy of this state” and that the contract was unenforceable.
Although certain language in Hunter, taken out of context, might at first blush appear to support the plaintiff’s position, we think it clear that the decision itself is bottomed on the proposition that one who is charged with a public duty may not, by contract, escape liability for his negligent performance of that duty. That this is a correct interpretation of our decision in Hunter is forcefully shown by the following language:
“Under the statute the defendant, being engaged in the business of renting trailers to the general public, including trailer hitches and other attendant equipment necessary to connect the rented trailers to the automobiles, owed a duty, not only to the plaintiff but also to the general public, to see that the trailer was properly installed and the trailer properly attached thereto in order that the same might be safely driven on the highway for the purpose and use for which it was intended; and defendant, by contract, could not relieve itself from its negligent acts of failing to make those safe connections and installations. The contract on the part of the defendant to relieve itself from such negligent liability is against the public policy of this state and void. (Nashua &c. Paper Co. v. Noyes Co., 93 N. H. 348, 41 A. 2d 920.)
“It is apparent that the mentioned statute was passed for the protection of the public; that the business in which the defendant is engaged, i. e., that of renting trailers to the public, is one where the interest and safety of the public must be kept in view; and, where one violates a duty owed to the public, he may not come into a court of law and ask to have his illegal contract, exempting him from liability to comply with such duty, carried out. . . .
“. . . To allow defendant to escape liability by reason of its alleged contract would be defeating the purpose and intention of the legislature as provided in the mentioned statute.
“In the instant case the public was concerned with the security of its citizens as to use of the trailer on the highway. The public had a right to expect and demand that defendant, being engaged in a public service, would comply with the statute and see that the trailer hitch waToFsufficient strength and the trailer properly attached so as to be safe for its use. (Otis Co. v. Maryland Co., 95 Colo. 99, 33 P. 2d 974.)” (pp. 618, 619.)
The rule pronounced in Hunter recognizes a well defined exception to the general principle that exculpatory agreements voluntarily entered into by parties standing on an equal footing are enforceable as between the contracting parties themselves. (See 17 Am. Jur. 2d, Contracts, §188, pp. 556, 557.) This exception finds expression in Restatement, Contracts, ch. 18, §575, pp. 1080, 1081:
“(1) A bargain for exemption from liability for the consequences of a wilful breach of duty is illegal, and a bargain for exemption from liability for the consequences of negligence is illegal if
“(b) one of .the parties is charged with a duty of public service, and the . bargain relates to negligence in the performance of any part of its duty to the | public, for which it has received or been promised compensation.”
No contention has been advanced in this case that the exonerating clause in the Skelly lease contravenes any Kansas statute, nor has our attention been called to any such enactment. In the ab-. sence of legislative expression on the subject we discern no public' policy which is violated by the clause in question.
The prevailing rule so far as leases are concerned is stated in 6 Williston on Contracts, (Rev. ed.) §1751C, pp. 4968, 4969:
“Though the relationship of 'landlord and tenant is such that its incidents have been regulated by statute to some extent, it is clear that apart from statute a landlord may at common law exempt himself from negligence. . . .”
This remains the rule generally throughout this country. In Eastern Ave. Corp. v. Hughes, 228 Md. 477, 180 A. 2d 486, the Maryland Court of Appeals, in upholding a clause exempting a landlord from liability to a tenant for injuries incurred on premises pertaining to the apartment house, stated:
“. . . Almost all of the courts that have passed on the question have held exculpatory clauses valid. . . . The only state in which an exculpatory clause has been held invalid as against public policy appears to be New Hampshire. . . .” (p. 480.)
A great many authorities support the proposition that an exculpatory clause similar to the one here under consideration is not, as a rule, invalid as contravening public policy when it is included in a lease between private parties. A few of the decisions will suffice to illustrate the point.
A case quite like the one at bar is Govero v. Standard Oil Co., 192 F. 2d 962. In that case Govero had leased a filling station from Standard Oil under a lease containing a clause releasing Standard from any damages sustained by Govero from his use or operation of the premises whether such damages were due in whole or in part to -his landlord’s negligence. An explosion occurred in the basement of the station, allegedly due to Standard’s negligence, and Govero sued for personal injuries sustained.
The federal Court of Appeals held that the exculpatory clause was valid under Missouri law, where the accident occurred, and that it precluded plaintiff’s recovery. In its opinion the court said:
“We know of no public policy which would prevent a landlord and a tenant from agreeing that the tenant should assume, and agree to identify the landlord against, the risk of loss, damage and injuries occurring on the premises during the term of the lease, whether due to the negligence of the landlord or not. As the Supreme Court of the United States said in Santa Fe, Prescott & Phoenix Railway Co. v. Grant Brothers Construction Co., supra, page 188 of 228 U. S., page 478 of 33 S. Ct. 57 L. Ed. 787: . . There is no rule of public policy which denies effect to their [the contracting parties’] expressed intention, but, on the contrary, as the matter lies within the range of permissible agreement, the highest public policy is found in the enforcement of the contract which was actually made.’” (pp. 964, 965.)
In Bogutz, Appellant v. Margolin, 392 Pa. 151, 139 A. 2d 649, the plaintiffs, a husband and wife, had leased an apartment from the defendant. The written lease provided that lessor should not be responsible for any injury or damage that might happen to the person or goods of lessee in or about the premises. In an action to recover damages for injuries sustained by the wife when she slipped and fell in the apartment house basement, the Pennsylvania court held that under the terms of the lease the tenants had waived their rights to recover damages, and were precluded from maintaining the action.
Pecararo v. Grover, 5 La. App. 676, was a case in which a tenant sued to recover damages resulting when a large piece of plaster fell from the ceilling over her bed and struck her while she was asleep. Her lease with the defendant contained a stipulation that lessor should not be responsible for damages caused by any vice or defect in the leased premises. The court held that while such a provision could not affect the rights of others, it was not against public policy, and that the lessee was bound thereby.
See, also, Kansas City Stock Yards Co. v. A. Reich & Sons (Mo. 1952), 250 S. W. 2d 692 and Foland v. St. Louis-San Francisco Railway Company, 208 F. Supp. 295, in which Hunter v. American Rentals, supra, is cited and distinguished.
It must be conceded that exculpatory contracts are not favored in law and are to be strictly construed. (17 Am. Jur. 2d, Contracts, §188, pp. 556, 557.) It is likewise true that various exceptions, in addition to these already mentioned, have been carved out of the general rule that exemption clauses are valid. Annotations cover-ling the general rule, the way it is construed and the several exceptions thereto, are found in 84 A. L. R. 654 and 175 A. L. R. 8.
We do not propose at this sitting to prepare a treatise on the exceptions to the general rule. It is sufficient here to say that under the evidence shown by this record, which, at most, shows Skelly was negligent in making its inspection, none of the recognized exceptions would appear to be applicable.
Cases from other jurisdictions cited by plaintiff have not beén overlooked. Those from New Hampshire are lonely exceptions to the general rule while others are scarcely in point. In McCarthy v. National Association of Stockcar Auto Racing, 90 N. J. Super. 574, 218 A. 2d 871, the violation of a statute enacted in the interest of public safety was involved. The exculpatory clause in Murray v. The Texas Co., 172 S. Ct. 399, 174 S. E. 231, did not clearly cover damages resulting from the lessor’s own negligence, and accordingly it was strictly construed against the lessor. In the Otis Elevator case, 95 Colo. 99, 33 P. 2d 974 which involved a public elevator, the court equated the duty owed the general public by an elevator company with that owned by a common carrier; hence it declared the exculpatory clause void as against public policy.
Counsel advances an ■ ingenious argument that the scope of the exculpatory clause is so restricted that it is inapplicable to the! facts of this case, even though the clause itself be valid. We cannot' agree. While the injuries sustained by plaintiff may not have been caused by his conduct of the business, they at least grew out of or happened in connection with his use and occupancy of the premises.
As to Skelly, we conclude that the exculpatory clause in its with the plaintiff was not void as against public policy, but valid as to the lessee; that plaintiff’s right to recover damages against Skelly is barred, under the circumstances of this case, by the plain and explicit language of the exculpatory clause; and that Skelly’s motions for directed verdict should have been sustained. In deciding we do not, of course, imply that the rights of third parties against Skelly would be controlled by the provisions of its lease with plaintiff.
The conclusion we have reached as to Skelly, makes it unnecessary for us to consider Skelly’s objections to the instructions given by the trial court.
We next consider the contentions made by Avalon in this appeal. Its argument, essentially, is that the work done under its subcontract was not only completed more than a year prior to the accident but that it had been accepted both by the general contractor and by Skelly, acting on behalf of Doherty, the owner. Thus Avalon contends that even though it may have been negligent in installing the overhead heater (which it denies) the acceptance of the heater as installed relieves it of liability.
Avalon’s contention is predicated on a rule of non-liability long applied to building and construction contractors where their work has been completed and has been accepted by the owner. We find the rule succinctly expressed in 65 C. J. S. Negligence, §95, p. 1060:
“As a general rule, after the work has been completed and turned over to, and accepted by, the owner, the contractor is not liable to third persons for injuries suffered by reason of the condition of the work.”
Cases from many jurisdictions are listed as being in support of the text.
Kansas has given lip support, at least, to the principle of non-liability as applied to a contractor. In Engler v. Aldridge, 147 Kan. 43, 75 P. 2d 290, the defendant, an independent contractor, constructed highway improvements under a contract with the state highway commission in accordance with plans and specifications furnished by the commission. After the work had been completed and accepted by the commission, plaintiff sued the contractor for damages resulting to his abutting land, alleging that the plans were so obviously defective that the defendant knew or should have known that plaintiff would be damaged. In holding that the contractor was not hable, this court, on page 47, quoted from 14 R. C. L. 107:
“The general rule is well established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury results from the contractor’s failure to properly carry out his contract.”
The court observed in this connection that plaintiff’s petition did not charge the defendant with having performed the work in a negligent manner.
The rationale of the rule of non-liability after a contractor’s work has been completed and accepted by the owner, is most often expressed in terms of lack of privity, which is to say that since no privity of contract exists between a contractor and third persons, the only duty owed by the contractor in the proper performance of his contract is to the contractee.
In applying the rule of non-liability pertaining to building and construction contractors courts have not distinguished between prime contractors and subcontractors, but have applied the rule in case of the latter as well as the former. (See annotation: 13 A. L. R. 2d 201, 213.) The converse should be true also; where under the circumstances a contractor would be liable, so also should be a subcontractor.
The harshness of the doctrine of non-liability has often been tempered by the formulation of divers limitations and exceptions, the most prevalent being that which would impose liability on a negligent contractor (or subcontractor) where the conditions produced by the construction, or the articles fashioned or installed in connection with the construction work, are inherently or imminently dangerous and where the contractor (or subcontractor as the case might be) had actual or constructive notice of the dangerous situation. (Roush v. Johnson, 139 W. Va. 607, 80 S. E. 2d 857; Reynolds v. Manley, 223 Ark. 314, 265 S. W. 2d 714; Hand v. Harrison, 99 Ga. App. 429, 108 S. E. 2d 814; Del Gaudio v. Ingerson, 142 Conn. 564, 115 A. 2d 665; Annotation: Contractor—Liability To Third Persons, 58 A. L. R. 2d 881, et seq.; 27 Am. Jur., Independent Contractors, §56, p. 536.) The rationale of this exception was expressly recognized by this court in Robinson v. Nightingale, 188 Kan. 377, 383, 362 P. 2d 432.
The foregoing exception encompasses not only things which are inherently dangerous in kind, but also things not imminently dangerous per se but which are rendered imminently hazardous through defect. (13 Am. Jur. 2d, Building, Etc. Contracts, §139, p. 131, and cases cited therein.) It will be noted that the courts which now apply this exception recognize, at least by implication, the general doctrine of non-liability.
Of recent date, courts in an increasing number of jurisdictions have discarded the old and somewhat discredited rule of non-liability, as it concerns negligent building and construction contractors, and have evolved what may be termed the modern view, which, simply stated, imposes liability upon a contractor for injuries to a third person occurring after the completion of his work and its acceptance by the contractee, where the work is reasonably certain to endanger third persons if the work, has been negligently performed. (See annotations: Contractor—Liability To Third Person, 13 A. L. R. 2d 201; 58 A. L. R. 2d 891; and cases cited therein.)
The authorities supporting the modern doctrine, in effect, apply to building and construction contractors what has become known as the MacPherson rule, under which a negligent manufacturer of a defective article is held to be liable for injuries occasioned thereby to a third party, where he reasonably could have foreseen that injury might result to persons other than the purchaser. This legal concept is discussed in Dow v. Holly Manufacturing Company, 49 C. 2d 720, 321 P. 2d 736, where the court said:
“It should first be observed that the owner for whom the house was built by defendant general contractor had accepted the house and it had been transferred by him, with title finally vesting in the Dows. At one time this was an obstacle to recovery from the general contractor on the theory that there was no privity of contract between the contractor and the person injured, but it is no longer the law, as obviously, the problem presented is the same as where a manufacturer negligently manufactures an article which subsequently injures someone other than the purchaser of the article. See famous case of MacPherson v. Buick Motor Co., 217 N. Y. 382 [111 N. E. 1050, Ann. Cas. 1916C 440, L. R. A. 1916F, 969] . . .” (p. 724.)
In similar vein, the Delaware court in Hunter v. Quality Homes, Inc., 45 Del. 100, 106, 68 A. 2d 620, commented:
“. . . Indeed, it is hard to perceive why the duty imposed by law for defective manufacture should differ from that for defective installation, when a product is thereby rendered imminently dangerous. It is the probability of injury which gives rise to the duty and, in the case of an oil burner, careless workmanship in either respect may create the danger. . . .”
The New Hampshire Supreme Court expressed the same view in Russell v. Whitcomb, 100 N. H. 171, 121 A. 2d 781, where it said, on page 173:
“We adopt tire view outlined by Prosser that independent building and .construction contractors should be held to a general standard of reasonable care for the protection of third parties who may be foreseeably endangered by the contractor’s negligence even after acceptance of the work. . . .”
Failure of the property owner to discover the dangerous condition, even though his failure may have been due to negligence on his part, is still said to be insufficient to relieve the contractor from liability to a third party. (Russell v. Whitcomb, supra; Prosser on Torts, 3d Ed., ch. 19, §99, p. 696.)
We believe the modern view presents a rational, practical and equitable rule which should be followed in this jurisdiction. Nor do we think its adoption in this case necessarily conflicts with our holding in Engler v. Aldridge, supra, for it will be remembered that the court in that case pointed out that the plaintiff did not •allege the defendant contractor had performed the work in a negligent manner. To the extent, however, that the Engler decision may be said to conflict with our present holding, the same is disapproved.
In a very recent case, Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P. 2d 783, we had occasion to speak concerning the question of a contractor’s liability. This was an action to recover damages for injuries occurring when plaintiff fell on steps leading to the hospital parking lot, it being alleged that the hospital association and the religious order which operated it were negligent in the construction, operation and maintenance of the stairway.
The defendant association filed a third party petition, alleging that if there was negligence, as plaintiff claimed, it was properly the negligence of the architects who designed the hospital and the contractor who constructed it. A motion was filed to dismiss the third party petition and this motion was sustained. This court on appeal reversed the trial court and held that both the architects and the contractor were proper third party defendants, on the theory their negligence might prove to be the primary or active cause of plaintiff’s injuries, entitling the defendants to indemnity. In the course of the opinion we said:
“If there is fault in the construction and particular design of the hospital structure, the architect or the contractor is primarily at fault, assuming the appellants [defendants] relied upon the skill of these people in the development of the premises. Furthermore, if the appellants are responsible to the plaintiff for allowing these faults to exist in the few months following completion of the project, the appellants’ fault would be passive or subordinate to the fault of the architect or contractor.” (p. 255.)
Measured by the modern rule of liability, as we have discussed above, we have no difficulty in concluding that the evidence was amply sufficient both to submit the question of Avalon’s liability to a jury and to support the jury’s verdict against Avalon. While Mr. Sebring, president of Avalon, testified his company had hung three other heaters in the same manner that Skelly’s was hung, he further said [the installation] always spanned three ceiling joists (while the instant heater spanned but two). In addition, there was ample competent evidence tending to show the heater was installed in such a defective manner as to create a risk. The suspicion might also occur, even to a layman possessing the sketchiest acquaintance with the law of gravity, that to suspend a 265 pound heater to a couple of ceiling joists with nails alone might well entail some hazard.
We hold that the trial court did not err in overruling either Avalon’s motions for directed verdict or its motion to set aside the verdict or in the alternative to grant a new trial. We have also ex amined the trial court’s instructions bearing on Avalon’s liability and conclude that Avalon was in nowise prejudiced thereby.
The remaining question in this appeal relates to the liability of the general contractor, Dressier. His position appears to be that he is not liable for the torts of his subcontractor and he cites the rule that one who employs another to do a piece of work is not liable for the other’s negligence in doing the work, unless the relationship of master and servant exists between them. (Railroad Co. v. Madden, 77 Kan. 80, 93 Pac. 586.) This rule, he suggests, protects a principal contractor where the cause of the injury complained of was the negligent or wrongful act of a subcontractor, citing an annotation in 18 A. L. R. 801, 810. The statement in A. L. R. to which Dressier alludes was specifically tied to the general rule of non-liability relating to contractors, which was in vogue at that time. Since then, as we have seen, exceptions have been engrafted on that rule, and the modern rule, qualifying the old, has been formulated.
The several authorities cited by Dressier involve injuries occasioned by the negligence of an independent contractor during the performance of the work called for by his contract, and hence are not decisive of the question presented here. The negligence asserted against Dressier was in turning over the station in such a defective condition that he knew or should have known of the dangerous situation which was likely to result in injury to someone. As plaintiff points out, he does not seek to hold Dressier liable for Avalon’s negligence but for his own negligence in failing properly to inspect the work and discover the negligent manner in which the heater was installed.
Such was the theory on which the plaintiff presented his case against Dressier, and such, in effect, was the theory on which the case was given to the jury. In its instructions, the trial court advised the jury, in substance, that if they found Avalon’s work so negligently defective as to result in an imminently dangerous condition, which probably would injure a person likely to come in contact therewith, and if they found Dressier turned the work over when he knew or should have known, of such defective and dangerous situation, and if they further found that plaintiff’s injuries proximately resulted from the defective work, then they should find in plaintiff’s favor as against Dressier.
We believe the facts shown here, as they relate to Dressier, bring the case clearly within the ambit of the decision in Pastorelli v. Associated Engineers, Inc., 176 F. Supp. 159, a case whose facts are strikingly similar to those in the instant action. There, the plaintiff was injured when a heating duct, suspended by nails from the ceiling of the Narragansett Racing Association, fell and struck him. Suit was brought against three defendants: Associated Engineers who prepared the plans and agreed to “supervise” the contractor’s work, the general contractor for the job, designated as “P & M”, and the subcontractor Randall, who defectively installed the heating duct.
Judgment was entered in favor of the plaintiff against all three defendants: architect and inspector, the general contractor and the subcontractor. In imposing liability against “P & M”, the general contractor, the court had this to say:
“I am also satisfied that P. & M. did not exercise ordinary care in superintending the installation of said duct or in inspecting the manner and means of its installation. Had such care been exercised, the defective and inadequate means of attachment would and should have been discovered and corrected. P. & M.’s authority to have ordered such corrections is undisputed.” (p. 165.)
In our opinion there was ample evidence, as shown by the record, not only to justify submitting the case to the jury but also to justify the jury in finding, by its verdict, that Dressier had not exercised reasonable care in superintending and inspecting the installation of the heater. One of Topeka’s experienced heating contractors testified that it is normal in the construction business for the general contractor to inspect the work of a subcontractor after it is completed and to notify the subcontractor if there is something wrong which should be corrected; that a subcontractor has two people to satisfy, the general contractor and the owner; that there was nothing hidden about the way this heater was put up and that anyone inspecting the same could see that it was nailed.
Dressier, himself, testified he was at the building site about once every day and supervised the construction; that at the final inspection he and Skelly’s inspector were together and he undoubtedly looked at the heater, but not close enough to see that it was held to the ceiling by nails; that if he saw something on a job which was not right or didn’t suit him, he would probably call it to the owner’s attention or would go to the owner; that he felt no responsibility to make reasonably certain the subcontract work met the requirements but left that to the inspector; that where there are no plans covering certain installations (as was the case with this heater) he would consult the inspector if it came to his attention but he did not do it here.
The law, as expounded in the Pastorelli case, does not absolve a general contractor from the duty of exercising reasonable care in supervising and inspecting the work called for in his contract; he has some responsibility to see that the entire work he contracted to perform is properly done. He may not evade all responsibility by blind reliance on a subcontractor or on the owner’s inspector. The real question is whether, in turning work to the owner, the contractor knew or in the exercise of reasonable care should have known of a dangerous condition created by the work. In the present case we believe that the evidence, with the inferences which reasonably might be drawn therefrom, was sufficient to support the finding against Dressier on that issue.
We hold that the trial court did not err in overruling either the motions for directed verdict filed by Dressier; or his motion for judgment notwithstanding the verdict, or in the alternative for a new trial, nor did it err in its instructions to the jury concerning Dressler’s liability.
For reasons set out in the course of this opinion, we reverse the judgment against the Skelly Oil Company and direct the trial court to enter judgment in its favor. We affirm the judgments against Dennis Dressier, d/b/a Dressier and Company and against Avalon Heating and Air Conditioning, Inc. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal arises out of a proceeding to determine the ownership of a savings account in The First National Bank of Hutchinson.
The over-all question is whether or not the appellant, Floyd M. Smith, is entitled to the balance of the account as a surviving joint tenant.
Rachel J. Smith died intestate on August 13, 1963, at the age of eighty-nine years, and Floyd, her son, was appointed administrator of her estate. The balance of tire savings account was not included as part of the assets of the estate. The appellees, children of two of Rachel’s predeceased daughters, filed written defenses to Floyd’s petition for final settlement, alleging that (1) Rachel was incompetent at the time of her death, and several years prior thereto, and (2) the savings account was Rachel’s sole and separate property, and Floyd, as administrator, should be required to include the balance of the account as a part of the estate. After a full hearing, the probate court found in Floyd’s favor, holding the evidence was insufficient to show Rachel was incompetent, but that the evidence was sufficient to establish the account was owned by Rachel and Floyd in joint tenancy. The grandchildren appealed to the district court, and by agreement the case was submitted for trial upon a transcript of the proceedings in probate court. In a lengthy memorandum opinion the district court concluded that Rachel was mentally competent, and found:
“. . . that the evidence is insufficient to establish a ‘clear’ intent on decedent’s part to create a joint tenancy with right of survivorship in the savings account in The First National Bank. To the contrary, the court feels the signature card was given for convenience so that Floyd M. Smith could pay decedent’s bills and handle her business.
“Accordingly, it is the decision of this court that the savings account in The First National Bank of Hutchinson, Kansas, in question herein, is a part of estate assets and an accounting of same should be made by the administrator.”
From the judgment subsequently rendered, Floyd has appealed.
The appellees challenge Floyd’s right to be heard on portions of his brief, claiming that certain points raised therein are clearly outside the scope of the formal statement of points filed in accordance with Rule No. 6 (d) of this court (194 Kan. xiv). We have thoroughly examined appellant’s brief and are of the opinion that the points complained of by the appellees are reasonably encom passed within those enumerated in appellant’s formal statement, all of which may be resolved into the sole contention that the district court erred in finding that a joint tenancy with right of survivorship in the savings account was not created, and that the balance of said account was a part of Rachel’s estate. Since there has been no cross-appeal on the issue of Rachel’s competency, we shall confine our attention to the single point raised.
A brief résumé of the evidence will focus the over-all question. On April 5, 1960, Rachel opened an individual savings account in The First National Bank of Hutchinson. Rachel signed a signature card, and the bank set up a ledger sheet and issued a passbook— all in her name. Thereafter, Anna Woddell, an employee of the bank, knowing that Rachel lived alone and was getting old, had several conversations with her about doing something with her account so she could have someone “take care of her in case she broke her arm or something happened to her.” Mrs. Woddell also had a conversation with Floyd at a time when she thought Rachel “was needing some help to pay bills and things like that.” On or about March 2, 1962, Floyd had a conversation with Mrs. Woddell in which he told her his mother needed care but he couldn’t afford to pay her bills and “things like that,” and if his mother had money, it should be used. At about that time Floyd’s wife took Rachel to town, at her request, and left her at the bank. When Floyd’s wife returned for Rachel, Mrs. Woddell accompanied Rachel to the car and told Floyd’s wife that Rachel had signed a new signature card, and when Floyd came to town the next time, he was to sign it. At a later date Floyd signed the card. The pertinent portion of the signature card signed by Rachel and Floyd is as follows:
“joint accounts
“We agree and declare that all funds now or hereafter in our name in The First National Bank, Hutchinson, Kansas, are and shall be our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common; and shall become the absolute property of the survivor. Each of the parties hereto authorizes the Bank to deposit to this account, any check or item made payable to either of us without our personal endorsement. Funds may be withdrawn by either of us, or the survivor, at any time. This contract shall be binding upon our heirs, administrators and executors.”
Mrs. Woddell testified that it was the custom of the bank when signature cards were set up in “joint accounts” to explain to the people the effect of such an account, and that she was quite sure she explained to Rachel what “a joint account consisted of.” When Floyd signed the card he didn’t read it, and knew only that it gave him the right to withdraw funds. Rachel and Floyd had never at any time discussed with each other the changing of the account, Floyd’s name was not added to the bank ledger sheet or passbook, and the passbook remained in Rachel’s possession until she became ill shortly before her death.
When the account was changed, it reflected a balance in excess of $12,000, all of the money having been contributed by Rachel. Thereafter, no deposits, except credits of interest, were made to the account. Beginning in February 1963, Floyd made six withdrawals before Rachel’s death. The withdrawal slips, at the bank’s direction, were signed “Rachel J. Smith, by Floyd M. Smith” or “Rachel J. Smith, Floyd M. Smith.” The funds withdrawn were used to pay Rachel’s medical expenses. At the time of Rachel’s death $7,154.61 remained in the account.
According to Mr. Nation Meyer, president of the bank, the manner in which the account was handled was consistent with normal banking practices for a “joint account,” and on March 2, 1962, when the account was changed, the signature card controlled the account, notwithstanding that only Rachel’s name was on the ledger sheet and passbook, and withdrawals were made in the manner heretofore related.
Floyd urges that there was a contract entered into between Rachel and the bank which created a joint tenancy with right of survivorship wherein Floyd was a third party donee beneficiary, and that the court should have enforced the contract according to its terms rather than relying on parol evidence to infer an intent contrary to that expressed by the contract. The argument of the appellees, on the other hand, may be summed up in the words of the district court in its memorandum opinion, quoting from Miller v. Higgins, 188 Kan. 736, 366 P. 2d 257, in which it is stated:
“ ‘Regardless of the theory upon which the joint tenancy is sought to be established it ultimately will be resolved on the clarity with which the intent of the grantor is expressed. The intent of the grantor is basic and is derived clearly from the facts and circumstances of each case. In the instant case there does not seem to be any one thing other than the naked words which would import the creation of joint tenancy, and the meaning of those words is completely rebutted by the facts and circumstances evidencing intent, both at the inception of the account and at such times subsequent thereto as are pertinent. . . .’ ” (p. 740.)
While the presumption of joint tenancy with the right of survivor-ship as it existed at common law was abolished by statute in this state (see K. S. A. 58-501, comment of Judicial Council, 1939), this does not render ineffective or unlawful a contractual arrangement which confers equivalent legal rights and obligations upon the parties concerned. (Malone v. Sullivan, 136 Kan. 193, 14 P. 2d 647.)
Under G. S. 1961 Supp. [now K. S. A.] 58-501, a grant of personal property to two or more persons creates in them a tenancy in common with respect to such property, unless the language used in such grant makes it clear that a joint tenancy is intended; and under subsection (a) of the statute, where joint tenancy is intended, it may be created by transfer from an owner to himself and another person as joint tenants.
The signature card constituted a contract in writing between Rachel and the bank. No serious contention is made by the appellees that the language used was insufficient to create a joint tenancy with right of survivorship. The intention of the grantor (Rachel) is clearly indicated by the use of the “magic" words commonly regarded by our decisions as creating a joint tenancy. (Spresser v. Langmade, 199 Kan. 96, 427 P. 2d 478; Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139; In re Estate of Fast, 169 Kan. 238, 218 P. 2d 184.) The fact that Floyd had no agreement with Rachel, and did not appear with her when the account was established, is of no real consequence. The legal significance of the contract entered into by Rachel and the bank was the creation of a joint tenancy bank savings account with the right of survivorship wherein Floyd was a third party donee beneficiary. In Goeken v. Bank, 104 Kan. 370, 179 Pac. 321, it was held:
“A person may avail himself of a promise made by a second party to a third for the benefit of the first, although the latter was not a party to it and had no knowledge of it when made.” (Syl. ¶ 2.)
This principle of contract law has threaded its way throughout many of our decisions (e. g., Weld v. Carey, 122 Kan. 666, 253 Pac. 235; Derby Oil Co. v. McPherson Gas Co., 142 Kan. 373, 46 P. 2d 872; West v. Sims, 153 Kan. 248, 109 P. 2d 479; Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan. 356, 133 P. 2d 574; Holmes v. Kalbach, 173 Kan. 736, 252 P. 2d 603). The contract being beneficial to Floyd, his acceptance thereof may be presumed. (Wellman v. Knapp, 126 Kan. 473, 268 Pac. 817.) Floyd’s subse quent signing of the signature card, while perhaps required by the bank for its protection in the event of withdrawals by him from the account, added nothing to the validity or enforceability of the contract. (Kelberger v. First Federal S. & L. Asso., 270 Wis. 434, 71 N. W. 2d 257.)
The appellees base their claim upon parol or extrinsic evidence from which they attempt to infer that Rachel intended only that the joint account be for convenience purposes rather than a true joint-tenancy account. Specifically, the appellees rely upon evidence that the change in the account was initiated by the bank, there was no discussion or agreement between Rachel and Floyd to create a joint tenancy account, Floyd was not present at the time Rachel established the account and did not understand the legal significance of the change in the account when he signed the signature card, Rachel kept possession of the passbook until shortly before her death, Floyd did not make any claim of ownership to the account until after Rachel’s death and he had talked to his lawyer, and the bank did not add Floyd’s name to the ledger or passbook.
The disposition of this case is controlled by our recent holding in Simonich, Executrix v. Wilt, supra, on analogous facts where similar contentions to those of the appellees were advanced and rejected. There, a father and his daughter, at the father’s request, signed a signature card establishing a joint tenancy bank savings account with the right of survivorship. We held that such an account was created by the contract of the parties evidenced in writing after both the father and his daughter appeared before the vice president of the bank and fully discussed the matter, and that the intention of the grantor to create such an account was indicated by the contract which each of the parties thereto understood. The main factual distinction between that case and here is that the daughter accompanied her father to the bank at the time the account was created, was present throughout the discussion and was thoroughly familiar with the entire transaction; but as we have pointed out, this distinction does not affect the result here, since the grantor’s intention, as evidenced by the terms of the contract, is the crucial factor. Like the instant case, the appellees in Simonich based their claim to the account upon parol evidence, collateral to the contract establishing the account, from which they sought to infer an intent on the part of the grantor contrary to that expressed in the contract. We held that such evidence, which had been admitted by the trial court over objection, was inadmissible under the parol evidence rule to vary the plain and unambiguous terms of the written contract creating the joint tenancy account, and stated:
. in the absence of pleading and proof of some species of fraud or mutual mistake in the procuring of a party’s signature to a plain and' unambiguous written contract, it must be enforced according to its terms, and neither pleading nor proof of a parol understanding at variance with such terms can be considered. (Colt Co. v. Kocher, 123 Kan. 286, 255 Pac. 48; and Hazelton v. Chaffin, 109 Kan. 175, 197 Pac. 870.)” (p. 424.)
Here, there is nothing to indicate from the record that Floyd objected to the introduction of any of the parol or extrinsic evidence. The parol evidence rule is one of substantive law and not merely a rule of evidence, and therefore, it must be adhered to, irrespective of whether or not proper objection is interposed at trial. (Thompson Co. v. Foster, 101 Kan. 14, 165 Pac. 841. Also, see Brenn v. Insurance Co., 103 Kan. 517, 175 Pac. 383.)
The appellees make some argument in their brief of mutual mistake as between Rachel and Floyd, but on oral argument they candidly admit they are not claiming mutual mistake or fraud in the creation of the account as between Rachel and the bank.
Our decision in Miller v. Higgins, supra, on which the district court relied heavily in reaching its conclusion, was distinguished in Simonich, and the distinguishing facts therein noted are equally applicable to this case. Likewise, in Simonich, cases were cited and reviewed from other jurisdictions in which joint tenancy accounts were created in clear and unambiguous language, thus prohibiting the use of parol or extrinsic evidence to contradict or vary the terms of the contract creating the account. (Also, see Annos. 149 A. L. R. 862 and 33 A. L. R. 2d 569.)
We hold that under the facts, a valid joint tenancy bank savings account was created by the clear and unambiguous terms of a written contract, and that the parol evidence rule precluded consideration of evidence relied on by the appellees that the account was created only for convenience purposes.
The judgment is reversed with directions to enter judgment for the appellant. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal in a workmen’s compensation case from the decision of the district court determining the injured workman was temporarily totally disabled and entitled to compensation benefits and further medical treatment.
The appeal arises from an order of the district court overruling an award of the workmen’s compensation director ordering the workman to submit to back surgery within thirty days and upon the workman’s failure to submit to the operation an alternative award for 10% permanent partial disability should be in effect.
The appellee, Jim Morgan, will be referred to as the workman. The appellants, Sholom Drilling Company and Travelers Insurance Company, will be referred to as the respondents.
The workman was injured while working as a “roughneck” in the oil fields. He has not been able to engage in any work since his injury on March 6, 1964. The work of a “roughneck” involves considerable pushing and lifting of weights of over a hundred pounds. The workman injured his back while rolling pipe up on a catwalk, at which time he felt a “knife or burning in his back,” and was thereafter unable to walk without help. He was taken to a doctor. The doctor x-rayed and then taped him. After five or six days the workman attempted to retrun to work but suffered pain and had to quit. He returned to the doctor and was placed in a hospital in traction and received other treatments. Six days later he was referred to Dr. Coffey, orthopedist, in Salina, Kansas. After examination Dr. Coffey returned him to the hospital at Great Bend for physical therapy and traction. Hospitalization lasted two weeks. His condition did not improve and he was hospitalized by Dr. Coffey in Salina. In July, 1964, he received electrical treatments and traction. On release he was fitted with a back brace. Further treatment consisted of exercise and rest. The workman was examined by Dr. Holderman, orthopedist, in Hutchinson, Kansas, at the request of respondents. More recently he has been examined and treated by Dr. Brown, orthopedist in Great Bend. This treatment consisted of traction, ultrasonic treatments and a fitted back brace. The workman continues to have pain in his back and hip. His left heel is partially numb and he has some difficulty sleeping. On April 21, 1965, the workman testified he was getting along a little better but still had the pain and was unable to work. The three doctors recommended an operation on his back. The workman testified he was afraid of the operation and he did not want to undergo surgery at this time. He wanted to wait until the operation appeared to be absolutely necessary.
The three doctors agreed that the workman was 100% temporarily disabled and could not expect to improve in the future to more than 40% or 50% permanent partial disability without an operation. With a successful operation the workman would have a residual permanent partial disability of around 10%. The doctors testified that the percentage of successful operations such as the one the workman needed was from 85% to 90%. One doctor diagnosed the injury as requiring an operation for spinal fusion and said no herniated disc was indicated. The second doctor diagnosed the injury as requiring an operation for spinal fusion and probable disc excision. The third doctor diagnosed the injury as requiring only a disc excision, in the latter case there was 85% to 90% chance for success, and the residual disability would be from five to six percent. He testified an operation to excise an intervertebral disc is an easier operation with less blood loss and less surgical exposure and results in a more rapid convalescence. However, this doctor said it was possible that a spinal fusion might have to be undertaken later.
All doctors agreed that the operation was considered major surgery requiring anesthesia and the attendant risks. The chance of death resulting from risks such as postoperative heart condition and anesthetic accident was considerably less than one percent. They agreed the workman was a good operative risk at this time. Other factors noted as contributing to the 10% to 15% of unsuccessful operations were pulmonary embolus, infection, allergy, pseudoarthrosis and neurological deficit.
During negotiations between the respondents and the workman prior to the hearing before the director, counsel for respondents repeatedly advised the workman; through his counsel, that they would recommend to the insurance company the furnishing of the expense of surgery to correct the workmans back condition. In each instance counsel on behalf of the workman replied that the workman desired to continue conservative treatment and he was not ready for surgical intervention because of the danger to life and limb.
Upon the director’s review of the award by the workmen’s compensation examiner the director made the following order:
“It is therefore ordered, decreed and adjudged that the award entered herein by Examiner Frank C. Sabatini on December 20, 1965, is hereby generally affirmed but modified as follows: The claimant is awarded temporary total disability until April 1, 1966. If claimant submits himself to- a back fusion operation as recommended by Dr. Reiff Brown prior to April 1, 1966, he shall continue to draw temporary total disability until such time as the surgeon who performs the operation releases claimant from further treatment and indicates he is able to return to work. At -that time the question of the claimant’s permanent partial disability shall be reconsidered by the examiner. In the event the claimant fails or refuses to undergo said surgery by April 1, 1966, the award of temporary total disability shall end as of -that date and thereafter claimant shall be awarded permanent partial disability at the rate of 10% until the award is paid in full or until further order of the director.”
On appeal to the district court a decree was entered awarding temporary total disability to the workman and overruling the award of the director ordering the workman to submit to the operation.
The district court made findings which are generally as follows. The spinal fusion recommended by the doctors is successful in 85 to 90 percent of the instances it is performed. The workman has had a complete course of conservative treatment and is not materially improved. It is not reasonable to expect further conservative treatment to attain significant results. The workman has not abandoned hope and is afraid of an operation. He is 34 years old and physically is a good operative risk. While all three of the doctors make a judgment that the workman should submit to the offered operation, at least two of them do not believe this should be done until he reconciles himself to accept it. Prevailing medical authority recommends the workman accept the surgery. The operation involves danger to life from the administration of anesthesia and from the surgery. Significant pain will follow the surgery. The workman’s refusal to submit to surgery is reasonable. The decision of the director was intended to be coercive and should be overruled. The workman is temporarily totally disabled.
Two questions are focal points in this appeal. First, is the order of the district court supported by substantial competent evidence? Second, is the workmans refusal to undergo surgery reasonable under the circumstances?
On appeal this court’s function is to review the record to determine whether it contains substantial evidence to support the district court’s judgment. This court is required to review all the evidence in the light most favorable to the party prevailing below. If there is any evidence to support the judgment it must be affirmed even though the record may contain evidence upon which the district court might have reached a different decision. (Alexander v. Chrysler Motor Parts Corp., 167 Kan. 711, 207 P. 2d 1179; Thillips v. Shelly Oil Co., 189 Kan. 491, 370 P. 2d 65.)
The respondents argue the director has authority to reduce compensation benefits to a workman who unreasonably refuses medical treatment tendered by his employer. They say the doctrine of avoidable consequences has been extended to workmen’s compensation cases in order to rehabilitate an injured workman in the public interest. Respondents insist the evidence establishes the necessity of the operation, the risk to life is minimal and the probabilities of success are great. They say in fairness to them the law should require the workman to submit or have his benefits reduced.
The prime difficulty in accepting this argument arises from a definite finding by the trial court that the workmans refusal to submit to surgery was reasonable.
When we review the evidence summarized in this opinion we find adequate support for the trial court’s decision. The operation would not effect a cure, if successful, for it would leave the workman with a 10 percent residual permanent partial disability. The chance of a successful operation was not more than 90 percent. The risks attendant to such an operation were major and even though the risk of death was less than one percent this factor cannot be overlooked as supporting the trial court’s finding.
K. S. A. 44-518 provides for suspension of the right of an employee to benefits during the period of time that he refuses to submit himself for examination by a physician. There has been no refusal to submit to examination in the present case.
The following cases were cited by the respondents as authority for the director to reduce benefits whén a workman unreasonably refuses medical treatment. Strong v. Iron & Metal Co., 109 Kan. 177, 198 Pac. 182; Gilbert v. Independent Construction Co., 121 Kan. 841, 250 Pac. 261; Gentry v. Williams Brothers, 135 Kan. 408, 10 P. 2d 856; Alexander v. Chrysler Motor Parts Co., supra.
In the Strong, Gilbert and Gentry cases, a refusal to undergo hernia operation was involved. In Strong the district court found that the refusal to submit to surgery for the repair of a hernia was unreasonable. This court noted that the question of reasonableness was a question of fact, and when the trial court has determined this question of fact, and the conclusion is supported by evidence, it is binding.
In Gilbert the district court found that the refusal was reasonable, and this finding was upheld on appeal. The district court stated the workman’s refusal to accept the operation tendered by respondents was not unreasonable on the part of the workman and that the workman should not be compelled to submit to an operation to secure compensation for the injuries received.
In Gentry (pp. 409, 410) this court observed:
“. . . Many of the states that have adopted a workmen’s compensation act similar to ours have a statutory provision regulating surgical operations. In other states we find no such express provision and there is none in our statute . . . If he is not subject to unusual risk and danger from the anesthetic to be employed, or from the nature of the proposed operation, it is his duty to submit to it if it fairly and reasonably appears that such operation will effect a cure.”
In 1949 this court delivered its decision in Alexander affirming die district court in holding that a refusal to undergo a myelographic examination with possible subsequent back operation for a herniated disc was not unreasonable. Following these decisions, the Kansas legislature amended K. S. A. 44-510 (22) to provide that the unreasonable refusal of a workman to submit to a surgical repair of a hernia may limit his benefits. (ch. 250, sec. 4, L. 1955.) Even under this statute it should be noted not every refusal to submit to hernia operation is considered “unreasonable,” but a finding of unreasonableness must be made before there can be a limitation of benefits.
The case of Evans v. Cook & Galloway Drilling Co., 191 Kan. 439, 381 P. 2d 341, does not involve treatment by surgery. In Evans we held the burden is on the employer and its insurer to establish refusal to submit to reasonable medical treatment when the issue is raised.
In Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P. 2d 278, we considered the effect of the workmens compensation director’s rule 51-9-5. This rule states that an unreasonable refusal of the workman to submit to surgical treatment, where the danger to life would be small and the probabilities of a permanent cure great, ordinarily justifies refusal of compensation beyond the period of time the injured would have been disabled had he submitted to an operation.
In Gutierrez we said before a refusal can be unreasonable under the director’s rule the probabilities of a permanent cure must be great.
The medical testimony of all three orthopedists in the present case established that in event the operation was successful the workman would still have a residual permanent partial disability of ten percent. Under the evidence no permanent cure was possible and the director’s rule does not apply.
In view of the foregoing the judgment of the district court is supported by substantial competent evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Robert L. Palmer is now in custody of the warden at the state penitentiary at Lansing, Kansas. He was tried and convicted of the crime of burglary in the second degree and received a sentence under the Habitual Criminal Act. (G. S. 1949, 21-107a, now K. S. A. 21-107a.)
Mr. Palmer now appeals from a judgment of the District Court of Reno County summarily denying his motion to vacate filed pursuant to K. S. A. 60-1507.
Appellant contends that his sentence under the Habitual Criminal Act was improper in three particulars, (1) the prior convictions upon which the increased sentence was based were too remote, (2) no notice was given of an intention to impose the increased sentence and (3) he should have been notified prior to entry of his plea to the charges. We will examine these three contentions.
Both prior convictions used to increase the sentence occurred in 1947.
G. S. 1949, 21-107a provides:
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”
There is nothing in the statute to require that prior convictions be within a specified period of time. Even though the two convictions did occur in 1947 this would not change the requirement of mandatory imposition of increased sentence. When prior felony convictions against the defendant are established by competent evidence after such notice as required by due process, imposition of sentence under this statute is mandatory upon the court. (State v. Tague, 188 Kan. 462, 466, 363 P. 2d 454.)
The original journal entry of sentence recites that the records of prior convictions were offered in evidence on October 21, 1961, at which time the defendant objected “. . . on the grounds that said convictions are of such a remote nature that this court may ignore said convictions.” (Emphasis added.) On October 23, 1961, the motion on this objection was denied and defendant was sentenced. Thereafter the record shows at least two days elapsed after prior convictions were shown and before sentence was pronounced.
It is noted that appellant did not object because of insufficient notice. Neither did he deny his prior convictions.
In his motion to vacate he states:
“Also I wasn’t informed nor given notice, that the habitual criminal act (G. S. 21-107a) was going to be imposed if the jury found me guilty, denying me due process of law as guaranteed by the 14th Amendment. (I might have plead guilty if knew [sic] they were going to give me more time for my past sentences) . . .”
A person charged with a felony should be advised that an increased sentence will be demanded upon conviction. However, an increased sentence will not be vacated for lack of notice where the person admitted the former felony convictions and did not object to the increased sentence on the ground of lack of notice at the time of sentence. (Robertson v. State, 198 Kan. 543, 426 P. 2d 52; Chance v. State, 195 Kan. 711, 408 P. 2d 677; Goodwin v. State, 195 Kan. 414, 407 P. 2d 528.)
Appellant contends he should have been notified of an intention to impose the Act prior to arraignment. Then, he alleges, he could have made a more intelligent decision on whether to plead guilty to the charges. The position he takes is different from the usual contention made by a prisoner who is notified prior to arraignment. When a prisoner is notified prior to arraignment and pleads guilty to the charges he contends later that his plea of guilty was involuntary because it was coerced on threat of imposing the Act.
This court has repeatedly held a defendant may properly be notified of an intention to impose the Habitual Criminal Act after he is convicted on the pending charge. (State v. Messmore, 175 Kan. 354, 264 P. 2d 911; Sanders v. Hand, 190 Kan. 457, 375 P. 2d 785.)
Appellant next questions the sufficiency of his preliminary hearing.
In his motion to vacate judgment and sentence he states that he “. . . didn’t waive preliminary in writing . . .” (Emphasis added.) Appellant does not cite any statute or decision which requires waiver of preliminary hearing to be in writing and we know of no such requirement.
The record of proceedings before the judge of the City Court of Hutchinson appears in the abstract. The defendant appeared in that court on May 24, 1961, with his attorney, Don Wyman. The county attorney was present. The charge was read to the defendant and he waived preliminary hearing. All of this is set forth in the order binding defendant over for trial in the district court.
When a defendant pleads guilty or goes to trial and is convicted of a charge he waives any claim of irregularity in the preliminary hearing by failing to object prior to plea or trial. (Williams v. State, 197 Kan. 708, 710, 421 P. 2d 194; State v. McCarther, 196 Kan. 665, 671, 414 P. 2d 59; Smith v. State, 196 Kan. 438, 411 P. 2d 663.)
The present record discloses no objection was made by defendant to the sufficiency of the preliminary hearing during the trial proceedings. The records in the city court refute the uncorroborated statement of the appellant Palmer that he did not waive preliminary hearing. This contention of appellant is without merit.
Appellant’s motion to vacate contained a request that he be present at the hearing and be represented by counsel. On appeal he specifies no error thereon and no argument is presented in the appeal brief. Therefore these matters are abandoned by the appellant and need not be considered on appeal. (Tate v. State, 196 Kan. 435, 411 P. 2d 661.)
The remaining matters urged upon this court are not set forth in the motion to vacate or presented to the trial court. They will not be considered for the first time on appeal. (Tate v. State, supra.)
The motion to vacate was properly denied and the judgment is affirmed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
This is a proceeding for post conviction relief under K. S. A. 60-1507.
Appellant Charles E. Burnett was found guilty by a jury of the offense of second degree burglary. Upon a showing of two prior convictions of felony, he was on September 2, 1960, sentenced pursuant to the habitual criminal act (now K. S. A. 21-107a) to confinement in the penitentiary for life. Thereafter he appealed pro se from this sentence. Despite procedural deficiencies limiting the scope of appellate review, this court examined the record presented and concluded appellant suffered no prejudice to his substantial rights (State v. Burnett, 189 Kan. 31, 367 P. 2d 67).
On September 8, 1964, appellant filed the first of three separate motions to vacate his sentence. The ground for relief alleged therein was that the journal entry of judgment failed to reflect he had been given proper notice of intention to invoke the habitual criminal law. On October 27, 1964, the sentencing court denied this motion, stating appellant had been given such notice and that he had opportunity to prepare defenses to prior convictions, if any he had. No appeal was taken from this ruling.
On January 4, 1965, appellant filed his second motion to vacate, alleging as grounds therefor (1) he had no attorney present at his arraignment, (2) he was not notified in written form of the state’s intention to invoke the habitual criminal act, (3) he was compelled to establish his identity as a second offender, and (4) he was not advised of his right to appeal and his right to counsel in connection therewith.
The trial court not having acted upon this motion, on February 21, 1966, appellant filed a third motion to vacate, denominating it as supplemental to the second, alleging as grounds (1) character evidence which influenced the jury was improperly admitted into evidence, (2) he was not given timely notice of the intention to impose sentence under the habitual criminal act and (3) the prosecution misdescribed the statute number of the habitual criminal act. Additionally, in his handwritten brief attached to this motion appellant complains of the admission into evidence at the time of his sentencing of his conviction of a felony (interstate transportation of a stolen motor vehicle) for which he was committed to the federal reformatory' at El Reno, Oklahoma.
On March 3, 1966, the trial court entered an order denying, without appointment of counsel or evidentiary hearing, the last two motions, and on February 9, .1967, entered a supplementary order of denial, specifying in more detail the basis of the ruling. Appellant brings both orders here for review, counsel having been appointed for him for the appeal.
Appellant’s complaints upon appeal rest upon two propositions, first, lack of timely notice prior to imposition of sentence as an habitual criminal, and, second, that the evidence relating to the conviction of transportation of a stolen vehicle was not the best evidence and was improperly considered by the sentencing court.
As stated, the trial court in ruling upon appellant’s first motion held that appellant had had notice of intention to invoke the habitual criminal act, and there was no appeal taken from that ruling. In its last ruling of February 9, 1967, the trial court stated any record of notice prior to the time of sentencing in 1960 was no longer available to the court.
Assuming arguendo that appellant had no notice of the state’s intention to invoke the habitual criminal act prior to the time of actual .sentencing, his contentions of prejudicial error may not be sustained. At the time of sentencing he made no objection to the sentencing procedure on the ground of lack of prior notice, although he did object upon another ground to be presently discussed, and there was no request for recess or continuance. After the evidence of the two prior convictions was received appellant was afforded the right of allocution; again, no complaint was made of lack of prior notice. The matter was not mentioned in the motion for new trial. It is clear appellant had ample opportunity to object to the notice given, or lack thereof, to attack the records of prior convictions and to state why an enhanced sentence should not be imposed. He has never intimated he was not in fact twice previously convicted of felony as indicated or that he has been prejudiced by application of the habitual criminal act. This court has held many times under such circumstances any objection to lack of notice is waived (see e. g. State v. Fountaine, 196 Kan. 638, 414 P. 2d 75; Brown v. State, 198 Kan. 345, 424 P. 2d 576; Robertson v. State, 198 Kan. 662, 426 P. 2d 52. See, also, Lieser v. State, 199 Kan. 503, 430 P. 2d 243.)
As indicated, when appellant was sentenced the state offered evidence of two previous convictions. The first was a burglary conviction in the district court of Sedgwick County, Kansas, evidence of which had already been introduced by the prosecution as a part of its case in chief. No objection was or is now made concerning it. The second was for the offense of transporting a stolen motor vehicle in interstate commerce knowing same to have been stolen, such conviction being in the district court of the United States for the district of Kansas. This conviction was evidenced by copies of certain records of the federal reformatory at El Reno, Oklahoma, certified by the warden as official custodian thereof to be true and correct copies of records on file at that institution. In addition to the warden s certificate this evidence consisted of copies of the federal district court’s judgment and commitment, a fingerprint record and a photograph.
Appellant objected to the introduction of these records on the ground they were not the best evidence. He in effect argues now that a conviction may not be evidenced in such manner but may be shown only by a record duly authenticated by the clerk of the sentencing court. This court rejected the identical contention upon the same facts as here in State v. Hall, 187 Kan. 323, 356 P. 2d 678, and State v. Loyd, 187 Kan. 325, 356 P. 2d 825. In those cases records of penal institutions, federal and state as well as sister state, were used over objection to enhance sentences under the habitual criminal act. This court pointed to G. S. 1949, 60-2854 which provided that copies of all papers authorized or required by law to be filed or recorded in any public office or of any record required by law to be made or kept in any such office duly certified by the officer having the legal custody of such paper or record under his official seal could be received in evidence with the same effect as the original. This court referred also to G. S. 1961 Supp., 60-2854a, our uniform photographic, copies of business and public records as evidence act, and held that under those two provisions the trial court did not err in the admission of certified photocopies of the records kept by penal institutions as authorized or required by law for the purpose of applying the habitual criminal act.
There was no denial of due process of law in the sentencing procedure; therefore the trial court properly concluded the files and records conclusively showed appellant was not entitled to relief and that the appointment of counsel and an evidentiary hearing were unnecessary. The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, Larry D. Davis, was tried by a jury and found guilty of the charge alleged in the amended information that he did attempt to escape from the Kansas State Industrial Reformatory while confined at hard labor for concurrent terms of imprisonment, without being guilty of breaking such prison, contrary to K. S. A. 21-101 and 21-734. He has appealed from the judgment and sentence of fifteen years confinement in the Kansas State Penitentiary imposed pursuant to the Habitual Criminal Act (K. S. A. 21-107a), and the order overruling his motion for a new trial.
It is first contended the state’s evidence was insufficient to sustain the verdict finding the defendant guilty of an attempt to escape, and that the district court erred in overruling his motion for a directed verdict.
The evidence showed that on November 10, 1965, the appellant was confined in the Kansas State Industrial Reformatory at Hutchinson. He was serving two sentences from Graham County and was also serving a sentence from Russell County. On the same day, Davis and his cell mate, Joe Barnett, were present and accounted for at the 8:00 o’clock a. m. head count in cell house No. 2 in the reformatory. Three and a half hours later, at 11:30 a. m., the two boys failed to appear for the head count and were unaccounted for by the correction officer. An immediate search of the reformatory followed but the two boys could not be found. The search continued into the afternoon, through the night, and into the early part of the next day, November 11, 1965. Between 1:00 and 1:30 p. m. on November 11, 1965, over 24 hours after the boys were first reported missing, the recreational director was checking the reformatory softball diamond to see if it was too wet to have some of the inmates out on the yard — it had rained the day before. As he walked by the officers’ guard stand located near the batter’s box on the baseball diamond, he heard mumbling noises and water sloshing, and he knew someone was below the floor. The guard stand was approximately 4x4 feet with approximately 2% feet between the floor and the ground level inside the stand so there was space for at least two men to hide under the floor. The floor was constructed of grooved or tongue-lapped flooring with the boards interlocking each other, which were solidly nailed down. The entire basefall field, including the guard stand, is within the confines of the walls of the reformatory.
The recreational officer noted the flooring appeared to be lightly nailed down and he tried to raise it with his hands, but it had been sawed closely along the edge and he could not raise it. He called for his assistant to bring a crowbar to lift the flooring. When the floor was pried up, Davis and Barnett were hiding in the space below and they were asked to come out, which they did. Both boys were wet and hungry and the recreational director took them into cell house No. 1, gave them a bath, clean clothes and a hot meal, and had them ready to be interviewed by the superintendent. In “shaking down” the clothing of Davis and Barnett, a case knife and a file were found in one of the wet jackets. Later that afternoon an officer of the reformatory searched the space below the floor of the stand. He found two belts; two files, a long thin one about one inch wide and a long round one; a box of matches, and a pair of gloves.
As indicated, the charge was that the defendant attempted to escape lawful confinement from the reformatory. The charge was based upon the assumption our statutes make an actual escape from the Industrial Reformatory a crime (Henderson v. State, 198 Kan. 655, 426 P. 2d 92); and that an attempt to commit the offense was made unlawful by K. S. A. 21-101. Our statutes relating to the administration of justice do not define the term “escape.” It has been held that statutes enacted covering escape have been considered declaratory of, and supplementary to, the common law. (30A C. J. S. Escape, § 2, p. 875.) At the common law, the crime of “escape” was committed by a prisoner when he voluntarily departed from lawful custody without breach of prison. (30A C. J. S. Escape, § 2, p. 876.) To constitute an escape on the part of the prisoner there must be lawful custody and an actual departure from the place of confinement whereby he unlawfully gains his liberty. (State v. Beebe, 13 Kan. *589, 19 Am. Rep. 93; 27 Am. Jur. 2d, Escape, Prison Breaking and Rescue, § 1, p. 848; 30A C. J. S. Escape, §§ 2-6, pp. 875-886.) The use of force or violence is not a necessary element of an escape (30A C. J. S. Escape, § 2b, p. 877), and an escape is distinguished from prison break by this circumstance. (State v. Clark, 121 Kan. 817, 250 Pac. 300, 50 A. L. R. 986; State v. McGrew, 190 Kan. 834, 378 P. 2d 94, 96 A. L. R. 2d 517.)
An attempt to escape is a substantive crime and is such effort on the part of the prisoner to depart from lawful custody before discharge by due process of law as would, if not extraneously interrupted, end in the consummation of an escape. (27 Am. Jur. 2d, Escape, Prison Breaking and Rescue, § 4, p. 851; 30A C. J. S. Escape, §§ 8-12, pp. 886-888.) An attempt to commit a crime is an act done with intent to commit that crime, and forming a part of a series of acts which would constitute its actual commission if it were not interrupted. All acts done in preparation are, in a sense, acts done toward the accomplishment of the thing contemplated. K. S. A. 21-101 was construed and applied in State v. Bereman, 177 Kan. 141, 276 P. 2d 364 (then G. S. 1949, 21-101), where it was said:
“It may be generally stated that an attempt to commit a crime consists of three elements: (1) the intent to commit the crime; (2) performance of some act toward the commission of the crime, and (3) the failure to consummate its commission.
“In order that there may be an attempt to commit a crime, whether statutory or at common law, there must be some overt act in part execution of the intent to commit the crime. The act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory, and it need not be the last proximate act to the consummation of the offense attempted to be perpetrated. However, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement toward the commission of the offense after the preparation or solicitation is made. Slight acts done in furtherance of that design will constitute an attempt. No< definite rule can be laid down by which an act might be characterized as overt in any particular case. The general principle of law concerning attempts must be applied in each case as nearly as it can with a view to substantial justice. (22 C. J. S. 139, 140, § 75; 14 Am. Jur. 816, §68.)” (l. c. 142, 143.)
See, also, State v. Frazier, 53 Kan. 87, 90, 36 Pac. 58; State v. Bowles, 70 Kan. 821, 79 Pac. 726, and State v. Custer, 85 Kan. 445, 446, 116 Pac. 507; 1 Whartons Criminal Law and Procedure, Ch. 6, § § 21-74.
The evidence introduced by the state has been narrated. It showed that the defendant was lawfully confined in the reformatory pursuant to concurrent terms of confinement imposed by courts of competent jurisdiction, which had not expired; that the defendant and his cell mate were present at the head count at 8:00 a. m. on November 10, 1965, but were not present at the 11:30 a. m. head count; that a search for their whereabouts ensued and continued for more than 24 hours throughout the reformatory and grounds; that the defendant was found hiding underneath the wooden floor of the guard stand inside the reformatory, which flooring had been replaced to avoid detection by the officials and to conceal the defendant while awaiting an opportunity to complete his escape. We think there was a basis in the evidence for a reasonable inference of guilt and was sufficient to warrant a conviction for an attempt to commit an escape. In State v. Scoggins, 199 Kan. 108, 427 P. 2d 603, it was said:
“In a criminal prosecution it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before a verdict of a jury which has been approved by the trial court may be set aside on appeal on the ground of insufficiency of evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court. (State v. Walker, 198 Kan. 14, 422 P. 2d 565, Syl. ¶ 1; State v. Shaw, 195 Kan. 677, 408 P. 2d 650; State v. Gregory, 191 Kan. 687, 383 P. 2d 965; and State v. Ledbetter, 183 Kan. 302, 327 P. 2d 1039.)” (l. c. 111.)
See, also, State v. Crosby, 182 Kan. 677, 342 P. 2d 197, 76 A. L. R. 2d 514, and authorities cited therein at page 685.
The defendant argues the district court erred in admitting into evidence improperly authenticated copies of his prior convictions and commitments to establish his lawful confinement in the reformatory. It is urged that the authentication by the clerk of the district 'court of the journal entry of the defendant’s conviction in the district court of Graham County and his commitment to the reformatory did not meet the requirements of K. S. A. 60-465. The point is not well taken. This court has held that certified copies of the records of commitment of a prisoner kept by state penal institutions as authorized or required by law are admissible in evidence to prove lawful confinement. (State v. Hall, 187 Kan. 323, 356 P. 2d 678; State v. Loyd, 187 Kan. 325, 356 P. 2d 825.) Furthermore, the authentication of the records of confinement introduced in evidence fully complied with K.S.A. 60-465 (2) and (3).
The defendant contends he was denied a fair trial because the state placed a witness on the stand without having endorsed his name in the information. The county attorney acted in violation of K. S. A. 62-802 and was guilty of official neglect of duty in calling the witness Hurst without having endorsed his name on the information. Such conduct is inexcusable and is in complete disregard of our established rules of procedure in criminal cases, but the question is whether the error was so prejudicial as to deny the defendant a fair trial. The state called the recreational director who testified at length of finding the defendant and his cell mate concealed beneath the floor of the guard stand. His name had been endorsed on the information. Later, the state called witness Hurst, the recreational director’s assistant, who testified briefly concerning the location of the guard stand; that he supervised the crew which took up the flooring and filled the space below with sand and concrete to make a solid floor, all of which was merely cumulative of the testimony previously given by the recreational director. At this point, counsel for the defendant discovered Hurst’s name was not endorsed on the information and moved that all his testimony be stricken. After conference at the bench between court and counsel, the following occurred:
“The Court: Any testimony introduced through the assistance of Mr. Hurst will be stricken from the record.”
We are of the opinion that, under the circumstances, any error which may have occurred did not prejudice the substantial rights of the defendant and did not deny him a fair trial.
It is next contended the defendant was deprived of a fair trial because of adverse and unfair publicity accorded him as a result of an alleged crime committed by him during the trial. The record indicates that counsel for the defendant made a statement to the court out of the presence and hearing of the jury to the effect that there was widespread newspaper and radio coverage concerning the defendant’s attempt to escape, from the county jail where he was confined while the trial was in progress. It is argued the publicity of the news media resulted in evidence being placed before the jury concerning a subsequent offense on his part which would have not been otherwise admissible, and deprived the defendant of a fair trial. Counsel stated to the district court he did not feel the defendant had grounds for mistrial at that time because he did not have any way of knowing how the publicity might affect the jury. He requested the court to admonish the jury, but stated, “I hate to have them admonished, because it brings it to their attention, but to protect our clients, I think it should be done.” In ruling upon the matter, the court stated:
“The very first thing to disabuse counsel’s mind is that the Court did not listen to the radio or read the newspaper accounts. At least on five occasions I admonished this jury not to listen to the radio accounts and not to read the newspaper accounts. Now, you have great faith in the jury system, and I think any statement by me would be a personal affront to this jury, and until such time as somebody brings some evidence in here to the contrary, I am going to assume that the jury system does work, that they obey the mandate of the Court, and that they will give these gentlemen a fair trial. I can understand counsel’s concern, and I am aware of some talking around about some of these reports. I have not listened to any of them and I have not read any newspaper acoounts. I am sure this jury is honest and I am sure they will follow the Court’s instructions.”
At the hearing on the motion for a new trial, counsel produced no evidence of misconduct on the part of any juror. We must assume no such evidence was available, and that the jurors heeded the admonitions of the district court. The defendant carries the burden of making it affirmatively appear that error was committed below, and on this point he has failed to sustain that burden. See, Kincaid v. Wade, 196 Kan. 174, 410 P. 2d 333.
Other matters have been raised, particularly that the district court erred in overruling the defendant’s motion for a new trial. The points urged have been fully discussed and decided adversely to the defendant. We have carefully reviewed the record and are of the opinion the district corn! did not err in overruling the defendant’s motion for a directed verdict; in approving the jury’s verdict, and in overruling the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, Robert M. Walker, was convicted by a jury on three counts charging him with driving a motor vehicle upon a highway (1) “without first obtaining a valid operator’s or chauffeur’s license,” as required by K. S. A. 8-235; (2) “in such a manner as to indicate a willful and wanton disregard for the safety of persons or property,” in violation of K. S. A. 8-531, and (3) “while under the influence of intoxicating liquor,” contrary to K. S. A. 8-530. The defendant’s motion for a new trial was overruled, and he has appealed.
The facts giving rise to the arrest and conviction of the defendant, follow: Officer Walter Wiltse, of the Kansas Highway Patrol, was regularly on duty, in a parked position four miles west of highway junction K-96 and K-39, in Wilson County. He received a radio report and proceeded eastbound on K-96 where he observed a green 1959 Mercury sedan, the defendant’s car. There were four or five cars between him and the defendant’s car, all traveling east. Officer Wiltse passed the four or five cars and caught up with the defendant and saw his car cross the center line of the highway several times. On one particular occasion, the defendant’s car crossed the center line on an incline or hill and in a “no passing” zone.
September 4, 1965, was Saturday of Labor Day weekend, and the traffic was fairly heavy; also, the surrounding terrain was “hilly.” The Mercury was occupied by the defendant and his wife; the defendant was driving and his wife was sitting in the front seat with the window down, her right arm resting on the door and she was holding a drinking glass in her right hand. As Officer Wiltse put the “red light” on, she immediately emptied the contents of the glass out the window. The defendant slowly brought his car to a stop.
After both cars came to a stop, the . defendant and Wiltse got out and approached one another behind the defendant’s car. Wiltse testified at the trial that, at that time, the defendant was very unsteady on his feet and had a very strong odor of alcohol on his breath. The following exchange of words took place.
The defendant first asked in a very belligerent manner, “[w]hat do you want?” Wiltse told him he would like to see his driver’s license and the defendant replied he had left the license at Fall River, Kansas. Wiltse then asked him whether he had any identification and the defendant arrogantly replied that he did not have to show him anything. Wiltse then advised the defendant he was under arrest for driving while under the influence of alcohol and advised him to stay put (to remain behind the defendant’s car).
As Wiltse stuck his head in the driver’s side of the defendant’s car to search for an open container of liquor, the defendant ran up and grabbed Wiltse by the shoulder, pulled him out of the car, and asked him if he had a search warrant. The defendant was then forcibly placed under arrest and put in the patrol car. Wiltse continued his search and asked the defendant’s wife if she had a driver’s license. She showed him her license and said she did not have any identification for her husband. Wiltse testified that although she had a strong odor of alcohol on her breath, she was not “out of the way” and he allowed her to drive the Mercury to Fredonia.
Wiltse drove the defendant to Fredonia in the highway patrol car, and Mrs. Walker followed. En route to the county jail at Fredonia, Wiltse asked the defendant for his name again and again, but he refused to answer. On one occasion the defendant said, “[w]ell, just say it’s John Doe.” Wiltse also asked whether he would take a blood alcohol test, and the defendant clearly stated, “[n]o, I won’t take a blood test.”
Both cars arrived at the county jail about the same time. As the defendant was being escorted from the patrol car to the county jail, he told his wife to get an attorney but to stay in the vicinity as he was going to need a witness. Mrs. Walker was advised she could not enter the jail with her husband since she was not under arrest. Because she attempted to block a jail doorway, Wiltse forcibly set Mrs. Walker aside and took the defendant inside the jail. The defendant was seated inside the jail and his wife remained at the entrance of the jail. The Walkers were “hollering” at one another and there was quite a bit of disturbance. On several occasions, the defendant jumped up and attempted to go to the jail door where his wife was. Wiltse told the defendant over and over to remain seated, and on one occasion, grabbed the defendant, tore his shirt, and forced him to sit down. Sheriff Hubert Harris, of Wilson County, was present during the latter part of the ruckus.
After having brought the defendant inside the jail, and while trying to keep him seated, Wiltse advised' him that he was going to ask him some questions and that they would be used against him in court. The defendant was again asked for his name. He replied, “John Doe.” In response to other questions, he either refused to answer, or replied, “not applicable” or “no comment.” The defendant was also asked to take some coordination tests and to submit to a blood alcohol test. The county attorney’s brief stipulates to the fact that the defendant had agreed to take any of the so-called sobriety tests so long as he could have an independent witness present, but because Wiltse refused to allow the presence of an independent witness, no test was ever given.
On March 12, 1966, the defendant was brought to trial. He pleaded not guilty, and a jury was duly impaneled. On the same day, he was found guilty as charged. The court sentenced the defendant to the county jail for 90 days, and ordered him to pay a fine of $300.
The defendant first contends there was not sufficient evidence to sustain a conviction of the charges made in Count I and Count II of the information. Count I charged the defendant with driving without a valid operator’s or chauffeur’s license, and Count II charged him with what is commonly known as reckless driving.
In determining whether there was sufficient evidence to sustain the verdict rendered, this court will consider only that evidence supporting or tending to support the findings made (State v. Jeffers, 161 Kan. 769, 173 P. 2d 245; State v. Gates, 196 Kan. 216, 410 P. 2d 264), and will not review or weigh conflicting evidence. (State v. Blakesley, 43 Kan. 250, 23 Pac. 570, State v. McCoy, 160 Kan. 150, 160 P. 2d 238.) In a criminal appeal, this court examines the evidence only to ascertain whether there is an entire absence of substantial evidence from which the jury might reasonably draw an inference of guilt. (State v. McCoy, supra; State v. Shaw, 195 Kan. 677, 408 P. 2d 650), and a verdict of guilty will not be disturbed if supported by substantial competent evidence.
The defendent contends the state failed to establish a prima facie case that he did not have a valid operator’s or chauffeur’s license, as required by K. S. A. 8-235. The parties concede the state was required to prove two essential elements of the crime charged: First, that the defendant was in fact operating a motor vehicle upon a public highway in Wilson County, and Second, that while so operating the motor vehicle he did no without “first obtaining a valid operator’s or chauffeur’s license.” The only evidence the state introduced was Wiltse’s testimony that the defendant did not have a driver’s license in possession. That evidence did not exclude every reasonable hypothesis the defendant had not been issued a valid operator’s license by the State Motor Vehicle Department for the period during which he was driving. He was not charged with violating K. S. A. 8-244, which provides that “[e]very licensee shall have his operator’s or chauffeur’s license in his immediate possession at all times when operating a motor vehicle . . .” and that no person charged with violating the section shall be convicted if he produces in court an operator’s or chauffeur’s license theretofore issued to him and valid at the time of his arrest. We are of the opinion the state’s evidence was insufficient to warrant the dedefendant’s conviction of the charges contained in Count I, and the district, corut erred in overruling his motion for discharge. See, State v. Harkness, 189 Kan. 581, 370 P. 2d 100.
The defendant contends there was no evidence supporting the probability of an accident or any imminence of injury to persons or property, or any evidence to support the proposition he believed or had cause to believe his driving on the highway, under the facts and circumstances, might cause injury. The point is not well taken. There need be no accident in order for there to be reckless driving.
In Elliott v. Peters, 163 Kan. 631, 185 P. 2d 139, this court said recklessness is an indifference whether wrong is done or not — an indifference to the rights of others. See, K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730, and Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573. In State v. Sullivan, 58 N. D. 732, 227 N. W. 230, it was said there may be reckless driving without injury to others. Moreover, Wiltse’s testimony that the defendant’s automobile crossed the center line four or five times and went up a hill in a “no passing” zone on the wrong side of the highway for about 75 yards where the terrain was hilly and the traffic was heavy, and the defendant was under the influence of intoxicating liquor (State v. Sullivan, supra; State v. Sisneros, 42 N. M. 500, 82 P. 2d 74; 7 Am. Jur. 2d, Automobiles and Highway Traffic, § 264, p. 816), tended to disclose the defendant’s conduct was such as to evince disregard or indifference to consequences, and was sufficient for the jury to reasonably draw an inference of guilt.
In State v. Brooks, 187 Kan. 46, 354 P. 2d 89, a semi-trailer truck was northbound and had crossed over into the southbound lane of traffic, resulting in a collision between the truck and an oncoming car. The defendant contended the evidence was not sufficient to sustain a conviction of fourth degree manslaughter. In affirming the conviction, it was said the evidence was sufficient to prove a violation of G. S. 1949, 8-537, regulating driving upon the right side of highway, and of G. S. 1949, 8-431, now K. S. A. 8-531, relating to reckless driving. See, also Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152.
In State v. Sullivan, supra, the defendant was prosecuted for reckless driving. The statute provided that any person who drives any vehicle upon a highway carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others, so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving. It was said that reckless driving was to be based upon the violation of the rules of the road including the failure to stay upon the right side of the righway as well as the failure to maintain a careful and prudent speed. While one may observe the speed limit, he may still be guilty of reckless driving by constantly zigzagging from one side of the highway to the other thus endangering the lives and property of others.
The defendant further contends the district court erred in allowing the prosecution to present testimony regarding conversations and answers resulting from the custodial interrogation without first advising the defendant of his constitutional rights, and cites and relies upon Miranda v. Arizona, 384 U. S. 436, 16L. Ed. 2d 694, 86 S. Ct. 1602. The Miranda decision was rendered on June 13, 1966, four months after the trial of the instant case. In Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772, it was held the Miranda decision was applicable only to those cases where the trial began after the date of the decision. See, also, Addington v. State, 198 Kan. 228, 424 P. 2d 871. Moreover, the record discloses the defendant was well aware of his rights as evidenced by his complete and continued refusal to answer any questions asked by the interrogating officer. The only answer he made to any question was to finally give his proper name. That, in itself, is no violation of any constitutional right.
Likewise, Wiltse’s request that the defendant submit to a blood alcohol test is not a violation of his constitutional rights. In Schmerber v. California, 384 U. S. 757, 16 L. Ed. 908, 86 S. Ct. 1826, the Supreme Court of the United States reaffirmed the Breithaupt case (Breithaupt v. Abram, 352 U. S. 432, 1 L. Ed. 2d 448, 77 S. Ct. 408, holding the taking of blood from an unconscious defendant to be constitutional), and said there was no violation of the privilege against self-incrimination, or a violation of search and seizure, to compel an accused to submit to a blood alcohol test despite his refusal, on the advice of counsel, to take the test. It was also said the taking of the blood alcohol test was not a denial of the right to counsel.
Other contentions made by the defendant present no justiciable questions and its is unnecessary to extend this opinion by discussing them.
The judgment of the district court is reversed with respect to the defendant’s conviction on Count I, and the sentence and fine imposed thereunder are directed to be set aside. The defendant’s conviction on the charges contained in Counts II and III is affirmed in all respects.
It is so ordered. | [
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The opinion of the court was delivered by
Kaul, J.:
This was an action by the plaintiff, Lawrence D. Shehi, against the defendants to recover damages for alleged injuries caused by the independent acts or omissions of each defendant. Plaintiff has appealed from an order sustaining a motion for summary judgment as to each defendant.
In his petition plaintiff alleged that defendant Southwest Rental Inc. (referred to herein as Southwest), was engaged in the business of leasing cars and trucks. That defendant Hersh was engaged in the printing business in Manhattan and operated the business under the name of Economy Printers.
On or about June 23, 1963, defendant Hersh rented a truck from Southwest for the purpose of transporting heavy items of printing equipment (printing press) from an unknown destination (Pitts-burg, Kansas) to his place of business at 530 Freemont Street, Manhattan. The plaintiff was requested by Hersh to help unload the equipment from the truck. Plaintiff was injured when the printing press was being unloaded.
Plaintiff alleged his injuries were caused by the negligence of defendant, or defendants, in the following respects:
“(a) In failing to properly equip said truck with those items necessary to properly move and unload the equipment carried or to be carried thereon, the equipment being carried being known to the defendants;
“(b) In failing to properly instruct those persons renting equipment as to the proper method or used in loading or unloading equipment that might be carried or moved upon said truck;
“(c) In failing to properly advise the plaintiff and others as to the proper unloading of said equipment;
“(d) In fading to properly unload said equipment from said truck using those items of equipment which were necessary and proper to accomplish the job with safety;
“(e) In failing to properly supervise the unloading of said equipment thereby causing injury to the plaintiff.”
Defendants filed a Joint answer in which they denied negligence and alleged contributory negligence and assumption of risk on the part of plaintiff as affirmative defenses.
Interrogatories were submitted to and answered by all parties. Some written admissions of the plaintiff were received pursuant to K. S. A. 60-236. Plaintiff’s deposition was taken on behalf of defendants. An affidavit of Gary Cromer, local agent for Southwest, was filed by defendants and affidavits of Olaf A. Jones, Clifford Bammes, Wilma Bammes and Charles W. Johr were filed by plaintiff. There is no contention that pretrial discovery had not been completed.
On entering Judgment the trial court filed a memorandum of decision. As to Southwest, the trial court held in substance that its duty was contractual and the record reflected no breach upon which plaintiff could rely for his cause of action. As to defendant Hersh, the trial court found that plaintiff, by his testimony in his deposition, showed that he was contributorily negligent and that his negligence was the proximate cause of his injury, and further that he assumed any risk involved.
The plaintiff’s contentions on appeal may be resolved into the proposition that there remained disputed questions of fact as to the negligence of both defendants and also as to the defenses of assumption of risk and contributory negligence in relation to the liability of defendant Hersh. The defendants support the conclusion of die trial court and in addition contend that the testimony of Shehi, in his deposition, completely absolves defendant Hersh of any actionable negligence.
This court has had numerous occasions since the enactment of K. S. A. 60-256 (c) to pass on the propriety of summary Judgments rendered pursuant thereto. Some of our recent decisions, in which we have discussed the standards of measurement involved, are Bowen, Administrator v. Lewis, 198 Kan. 605, 426 P. 2d 238; Jarnagin v. Ditus, 198 Kan. 413, 424 P. 2d 265; Collins v. Meeker, 198 Kan. 390, 424 P. 2d 488; Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019; Wilson v. Deer, 197 Kan. 171, 415 P. 2d 289.
We would call particular attention to the opinion in Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976, and Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, in which the subject was thoroughly treated, the purpose of the statute discussed, and guidelines for its usage announced.
We do not believe it necessary to reiterate in detail the import of the decisions referred to. By way of summation it can be stated that we have strictly adhered to the admonition of the statute (60-256 [c]) that a summary judgment may not be rendered unless:
“. . . [T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .”
Most of the difficulty has arisen when it becomes necessary to determine what is a “genuine issue” and what is a “material fact.” Standards by which these matters may be determined are set out in Secrist v. Turley, supra, where we said:
“It may be said that an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. . . .” (p. 575.)
Considering the facts in the instant case to which the rules are to be applied we find that even though a summary judgment is not usually feasible in a negligence case (3 Barron and Holtzoff, Federal Practice and Procedure, Summary Judgments, § 1232.1, cited with approval in Secrist v. Turley, supra), the judgment rendered was a proper disposition of this case.
Conceding that issues were framed by the pleadings we turn then to consideration of the facts developed by the various pretrial discovery exhibits contained in the record. In determining whether the issues, framed by the pleadings, are maintained by the facts before us we are compelled to consider them in the light most favorable to plaintiff.
The facts, with one exception which will be pointed out in the course of the opinion, are gleaned entirely from the deposition of plaintiff.
Shehi was 46 years of age at the time of the accident and at the time was engaged in the moving business. It was a general transfer and storage business and consisted primarily of the moving of household goods and office equipment, some of which could be considered to be of a heavy nature such as safes, pianos and refrigerators. At the time of the accident Shehi owned and operated approximately thirty vehicles in his business in the Manhattan area. He was employed by the Zoeller Transfer and Storage Company from 1945 to 1961, when he purchased the company, since then he has been the owner and operator of the business known as Shehi Transfer and Storage Company.
Hersh operates a printing place known as the Economy Printers. The printing plant had been formerly owned and operated by a Mr. and Mrs. Best. After Mr. Best died Mrs. Best married the defendant (G. L. Hersh). Shehi had no knowledge of this marriage prior to the date of the accident and had never met Hersh until that date. Shehi had moved and unloaded equipment for Mr- Best on several occasions, some of the equipment weighing as much as 1500 to 2000 pounds. He had never done anything for Mr. and Mrs. Best for which he did not receive pay.
After receiving a call from Mrs. Hersh, Shehi picked up one of his employees, Charles E. Johr, and told him that he was going to unload something for Mrs. Best (Mrs. Hersh) and that he was doing it as a personal favor for her. When Shehi arrived at the printing plant the truck was in the alley near the back door. After inspecting the truck and printing press, Shehi, Johr and a Cecil Whiting went to the Shehi warehouse to pick up a pair of skids to be used in the unloading of the press. Shehi picked up a pair of solid oak skids about 10 to 12 feet long and two to four inches in their end dimensions. The skids had been used by Shehi for two to three years and on prior occasions he had unloaded objects weighing 2000 to 6000 pounds with them. The objects included 500 pounds of cable for the Kansas Power and Light Company and a 4000 pound laundry machine for the Manhattan Laundry. Shehi also obtained two pry bars from the warehouse. Some rope was used in securing the skids to a trailer hitch at the rear of the truck. There is a dispute as to the ownership of the rope. In his deposition Shehi contended the rope belonged to Hersh and in answer to his interrogatories Hersh contended the rope belonged to Shehi.
Hersh observed to Shehi that the press weighed about 3500 pounds. Shehi replied he wouldn’t doubt it. Hersh tied the skids to a trailer hitch at the rear of the truck with a rope. Shehi watched this operation and made no objection as to Hersh’s method or any suggestions as to a better way of securing the skids. Shehi’s testimony is narrated as follows:
“Prior to the time the press moved down the skids the witness checked to see if they were securely tied and they were. Hersh is the one who placed the skids in the way they were used, but the witness agreed that the method Hersh used was tire only method that could be used. The skids were held and did not slip and the skids did not slip or slide during the process of unloading, and the manner in which the skids were held to the truck by the rope had nothing whatever to do with the cause of the accident.
“. . . They were well secured. If there was anything wrong with the method used to attach these skids to the truck, it was unknown to the plaintiff prior to the accident.”
In sizing up the printing press it was decided by both Shehi and Hersh that the press be turned before the unloading process was commenced. Johr, Hersh and Shehi turned the press about a half turn until the turning process was stopped at the suggestion of Shehi.
After the skids were attached to the truck the press was lifted onto the skids and allowed to slide down under its own force. At this time two men were standing on each side of the skids, Mr. Shehi was on the left or driver’s side of the truck. He was standing close enough to have his hand on the press and was helping to balance it as it moved down the skids. When the press had moved approximately two or three feet down the skids, less than half way, Shehi remembers hearing a noise sounding like a rifle shot and then being underneath the printing press. Shehi stated that in his twenty years in the moving business he had never had a pair of skids break on him before.
It is obvious Shehi sized up the unloading operation and decided what equipment should be used and how the unloading should be undertaken. All decisions were either made or approved by him. Hersh’s only participation in the preparation was .securing the skids with the rope. Shehi approved Hersh’s work and testified that the manner in which the skids were attached to the truck had nothing whatsoever to do with the cause of the accident. As we have stated, the ownership of the rope is in dispute but since it did not break or slip this fact is immaterial.
We are compelled to agree with defendants that Shehi’s testimony considered in the light most favorable to him nevertheless completely absolved Hersh of any actionable negligence.
Bearing in mind the warning as to the danger of summary judgment proceedings becoming a trial by affidavit, as expressed in Brick v. City of Wichita, supra, we have carefully examined the affidavits in opposition filed by plaintiff. We find nothing contained therein that puts in issue any material fact that could establish the negligence of either Hersh or Southwest on any of the grounds alleged by plaintiff.
In view of what has been said we need not lengthen this opinion by a further discussion of whether or not the judgment was properly rendered with reference to the defenses of assumption of risk and contributory negligence.
As to Southwest the written lease agreement under the terms of which the truck was rented to Hersh was received by the court as an exhibit attached to the affidavit of Gary Cromer which was secured by defendants. However, nothing stated in the affidavit nor anything concerning the lease agreement was controverted in any way by plaintiff. In his brief plaintiff concedes that Southwest did not breach the contract within the meaning of its terms. He contends that Southwest breached its common law duty as bailor to provide a chattel fit for its known and intended use, and that such duty extends to third persons. Plaintiff’s contention fails for two reasons. First, by his own testimony, the chattel which caused his injury was not the truck furnished by Southwest, but the skids which were furnished by plaintiff.
Second, plaintiff’s only complaint about the truck was that the bed was covered rather than open and that there were no holes in the rear of the truck bed in which skids could be secured. If, by viewing plaintiff’s contentions in this regard in the most favorable light possible, it could be said the defects violated the accepted principle that a bailor had a duty to exercise due care to furnish chattels reasonably fit for the purpose of the bailment and for its known use; plaintiff still could not prevail.
We agree with the principle establishing the bailor’s duty but we also agree with the equally well accepted exception thereto as stated in 8 C. J. S., Bailments, § 25, p. 383. It reads:
. . [T]he bailor is not responsible for damages resulting through the use of the article after the bailee had discovered its unsuitability for use, . . .”
The same principle is couched in somewhat different language in Prosser on Torts (3rd Ed.), Liability of Contracting Parties, § 98, p. 687, where the following appears:
“. . . When the defect is disclosed to the one supplied, or is in fact discovered by him, the supplier usually is relieved of responsibility; . . .”
We believe the exception stated to be controlling in this case. A third person cannot stand in a better position with respect to liability of the bailor for defects than does the bailee (8 Am. Jur., 2d, Bailments, § 262, p. 1149).
Shehi examined the truck and the printing press on his arrival at the scene. He then discussed the unloading plan and obtained the equipment necessary in his judgment for the undertaking. By his own testimony he relieved Southwest of any responsibility.
On the record presented there remained no genuine issue as to any material fact. Therefore, the summary judgment was properly rendered as to each defendant.
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-27,
-45,
-15,
-21,
-105,
95,
18,
33,
36,
-100,
37,
-40,
42,
-116,
-71,
40,
-20,
114,
-90,
-122,
-12,
99,
-103,
8,
38,
99,
34,
21,
-27,
-4,
-72,
111,
58,
-83,
-90,
-80,
73,
1,
40,
-97,
-99,
100,
86,
7,
118,
-4,
4,
95,
-20,
15,
-50,
-16,
-111,
15,
49,
14,
-120,
-21,
3,
17,
81,
-118,
-78,
92,
71,
90,
-81,
-2,
-106
] |
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