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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from a judgment of the district court disapproving an executor’s final report and ordering him to account for money paid to him by the heir-at-law in Wyoming under circumstances as follows:
James Brown was a retired army sergeant who resided in Junction City. He had a brother, M. H. Brown, who resided at Riverton, Wyo. Both were single men, and each had made a will in favor of the other. Sometime early in 1935, Brown’s Wyoming brother died, leaving to his Kansas brother an estimated estate of $40,000. Brown went to Wyoming to see about it. While there he, too, died, on April 3, 1935, leaving a will in Junction City in which this appellant, Frank Schreckler, a postal clerk of Junction City, was named as executor.
Schreckler qualified as executor, and shortly thereafter, in April, 1935, by authority and approval of the probate court of Geary county, he went to Wyoming, in company with an attorney, to attend to the affairs of his executorship. In Wyoming he and his Junction City attorney engaged the services of a local attorney, F. B. Sheldon, Jr., and filed an application for the probate of the will of James Brown in Fremont county, Wyoming.
Schreckler then returned to Kansas and reported his doings to the probate court. The expense of his trip to Wyoming and for the services of the attorney who accompanied him was allowed by the court and charged against the estate.
Some time later, on May 12, 1935, Schreckler returned to Wyoming as executor and at the expense of the estate. Meantime the Wyoming court had appointed one W. J. Otto as coadministrator of the M. H. Brown estate. The nephew and sole heir-at-law of both the deceased Browns, one James J. Brown, of Pittston, Pa., had arrived in Riverton, Wyo., and had engaged lawyers, G. H. Paul and G. J. Christie, to look after his interests.
In the Wyoming court, in which Schreckler had filed his application to admit to probate the will of Sergeant James Brown, a legal controversy arose over the question whether Sergeant Brown’s will should be probated for the sole purpose of appointing the executor named in the will, when the sole beneficiary of the will had predeceased the testator, and when the sole heir-at-law of the testator desired to oppose its probate. After arguing the matter to the Wyo ming court, the hearing was adjourned for two days, during which time Schreckler and his Wyoming lawyer, Sheldon, and James J. Brown, the heir-at-law, effected a settlement whereby Schreckler, in consideration of $1,750, agreed to withdraw his application to probate the Kansas brother’s will. The heir-at-law gave Schreckler his note, payable in five days, for that amount; the application was withdrawn; the Wyoming court then allowed a partial distribution of $6,000 of the M. H. Brown estate; and after some maneuvers which threatened a lawsuit over the $1,750 note, it was paid. Sheldon, Schreckler’s attorney, retained $583.33 as his fee, and paid the entire balance, $1,166.67, to Schreckler. His Junction City attorney had advised against the settlement as improper, and declined to accept any portion of the proceeds as an attorney fee. Schreckler retained the money as his own; he did not account for it to the probate court of Geary county; and that tribunal declined to require him to do so.
On appeal to the district court the whole transaction was aired at length, but no material dispute of fact was developed. Schreckler frankly testified that the $1,750 note which his attorney later cashed “was given me to withdraw as executor.”
The trial court found—
“That the said Frank Schreckler received said 11,750 in a matter connected with the estate of James Brown, deceased, and received the same while he was acting in the capacity of executor of said estate, and that it is immaterial so far as the decision of this case is concerned, whether the said Frank Schreckler received said sum in consideration of withdrawing his application to act as executor of said estate in Wyoming, as contended for by said Schreckler, or whether he received said sum to be used in payment of administration expenses in the probate court of Geary county, Kansas, for the reason that in the one case the action of the said Schreckler was illegal and a violation of his obligation as a trustee, and in the other case he admittedly would have to account, and that he would account to the appellant for the net amount received by him of $1,166.67, and that in the settlement this sum should be surcharged against fees and expenses heretofore allowed said executor for himself and attorney’s fees in said estate in the said sum of $1,-166.67; and that otherwise the account of said executor should be approved.”
Judgment was entered accordingly, and the case is before us for review.
Appellant raises and argues four questions suggested by the record:
1. Did the trial court have jurisdiction?
2. Can one party to. an illegal transaction recover from the other the consideration he paid?
3. Can a person who has been sued on his promissory note given as consideration for an illegal contract and who settles that suit by payment without setting up his defenses recover the sum paid in a subsequent action?
4. Did the trial court abuse its discretion in surcharging the executor’s account with the moneys he obtained in Wyoming?
Touching these points in order, we shall give a short answer to the first question. Certainly the trial court had jurisdiction. (G. S. 1935, 22-1101 et seq.; Id., 20-301; Id., 60-3301.) An appeal from the probate court is tried de novo in the district court, although the jurisdiction of the latter is no broader than was that of the probate court. (Ross v. Woollard, 75 Kan. 383, 89 Pac. 680; Pee v. Carlyle, 120 Kan. 200, 204, 243 Pac. 296.) See, also, In re Estate of Dennis, 146 Kan. 121, 123, 124, 68 P. 2d 1083.
Touching the second and third questions advanced for discussion by appellant, we must hold that he entirely misconceives the nature of the subject matter of this appeal. The question in the probate court, and which continued to be the question on appeal to the district court and to this court, was whether the final settlement of the executor’s account should have been approved as rendered or whether he should have been surcharged with the money he obtained in Wyoming while on a lawful errand to that state in his official capacity as executor. The executor concedes that his transaction with the heir-at-law to withdraw his application to the Wyoming court for appointment as executor was illegal. His excuse that he did not know it was illegal, whether morally exonerative or not, was of no consequence. His Kansas lawyer so advised him and declined to participate in it. And it must be kept in mind that all defendant did in Wyoming, whether well- or ill-done, was as executor, as an officer of the probate court of Geary county, Kansas.
We can give no countenance to the argument that this is a lawsuit by one private person to recover from another private person a sum of money paid in the course of an illegal transaction, nor to recover a sum of money paid pursuant to the settlement of the action filed by defendant in Wyoming to recover on the promissory note of the heir-at-law. Neither do we regard it as important that the trial court’s judgment surcharging the executor’s account with the proceeds of the Wyoming transaction will enhance the amount of Sergeant Brown’s estate — with the incidental result that the other party to the illegal transaction in Wyoming, who happens to be the sole heir-at-law, will eventually get back a substantial part of this money now in the pocket of his fellow-participant in that illegal transaction.
Of course, it is a trite and commonplace maxim of the law that where parties are equally in the wrong the courts will not give one legal redress against the other but will leave them where they find them. In pari delicto potior est conditio defendentis et possidentis. (Ainsworth v. Miller, 20 Kan. 220; 6 R. C. L. 825; Id., 829; 1 Am. Jur. 414, 415.) See, also, Mason v. McGugin, 118 Kan. 663, 665, 236 Pac. 845.
The vice of a maxim is that sometimes lawyers and judges are apt to seize on it to govern cases to which if more critically examined it should not be applied. To apply it in this case would be to ignore the Court’s responsibility to require and enforce the high and exacting standard of official ethics which rests on an executor as a functionary of the court itself. In Alumbaugh v. Hedges, 125 Kan. 449, 265 Pac. 50, this court referred to the general rule of law applicable to all sorts of functionaries who are entrusted with the care of other men’s affairs. It was there said:
“Executors, administrators, guardians, trustees, and functionaries of that general character may not traffic to their own private advantage in estates or properties towards which they have any official or moral responsibilities. This rule is as much a principle of ethics and practical honesty as it is of law. The moral philosophy which underlies the rule was comprehensively treated in Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24, in which is included a quotation from Staats v. Bergen, 17 N. J. Eq. 554, which deserves to be repeated:
“ ‘So jealous is the law upon this point, that a trustee may not put himself in a position in which to be honest must be a strain on him.’ (p. 619.) (Citations.)” (p. 453.)
See, also, Beck v. Wacker, 127 Kan. 9, 272 Pac. 175; Woodbury v. Schofield, 131 Kan. 432, 292 Pac. 802; Crowley v. Nixon, 132 Kan. 552, 296 Pac. 376; Mayse v. Minneola Coöp. Exchange, 139 Kan. 24, 30 P. 2d 120; Vincent v. Werner, 140 Kan. 599, 38 P. 2d 687.
In other jurisdictions this exacting standard of official probity is generally enforced. In Smith v. Tolversen, 190 Minn. 410, 252 N. W. 423, an executor and trustee appealed from a judgment surcharging his account. In affirming the judgment, the supreme court of Minnesota said:
“Before going further with the facts, it is well to repeat as premise of decision that ‘a trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive,’ is the standard of his behavior. That rule ‘is unbending and inveterate.’ (Meinhard, v. Salmon, 249 N. Y. 458, 464, 164 N. E. 545, 546, 62 A.L.R. 1.)” (p. 413.)
In the New York case just cited Chief Justice Cardozo said:
“Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions (Wendt v. Fischer, 243 N. Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by a-ny judgment of this court.” (p. 464.)
In Eversole v. Holliday, 131 Ky. 202, 114 S. W. 1195, the action was by a sheriff against his deputy for an accounting of funds which had come into the hands of the latter in his official capacity. Defendant pleaded that plaintiff held his position as a result of a corrupt deal engineered by defendant whereby the former sheriff, one Cornett, had been induced to resign and that defendant had procured plaintiff’s appointment upon his agreement to appoint defendant his deputy, and that the sheriff’s fees were to be divided between them. The familiar rule that parties to an illegal transaction will not be heard to complain of it or its breach in a court of justice was invoked, but the Kentucky supreme court said:
“Though the contract with Cornett may have been against public policy, the fact yet remains that Holliday was appointed sheriff and Eversole deputy sheriff. As such, they were public officers of the state, and subject to the laws thereof in the collection of, and accounting for, the revenues of the state. To hold that the sheriff could not require his deputy to settle because they both secured their office through an unlawful contract with another would indeed be a dangerous doctrine. . . .
“ ‘(2) Although such a contract is void, it does not necessarily follow that the sheriff is without any remedy against the deputy for his part of the fees, or that the sureties of the sheriff, who were induced to become bound by reason of the contract, have no equitable claim to this fund in the hands of the deputy.’
“Applying the rule above mentioned to the facts of this case, we are of the opinion that, although the contract between appellant and appellee and E. H. Cornett was void as against public safety, the invalidity of that contract will not prevent a recovery by appellee for any sum that may have been due him by appellant upon a final accounting between them in their official capacity.” (p. 205.)
In Sando v. Smith, 237 Ill. App. 570, the plaintiff and two sisters and their defendant brother were the only heirs of deceased intestate. The defendant brother was appointed administrator, and apparently he had falsely represented that he held an order of court which required plaintiff to deliver to him certain moneys, bank books and diamonds received by her as a gift causa mortis from the intestate. Eventually this matter became the subject of litigation and the defendant brother contended that plaintiff’s ready surrender of the property to him was inconsistent with her later claim of the property being a gift. The Illinois court said:
“It is true that, as a general rule, money voluntarily paid to another under a claim of right to the payment and with knowledge of the facts, by the person making the payment, cannot be recovered back on the ground that the claim was illegal. . . . But, in our opinion, this rule that money paid with a full knowledge of all the facts and under a misapprehension as to legal rights may not be recovered back is not applicable to the payments made to an officer of the court, such as a receiver or a trustee in bankruptcy or the administrator or executor of an estate.” (p. 580.)
In the same opinion the court cited and quoted from English cases, including Ex parte Simmonds, 16 Q. B. Div. 308, 312, where Lord Esher, Master of the Rolls, said:
“A rule has been adopted by courts of law for the purpose of putting an end to litigation, that, if one litigant party has obtained money from the other erroneously, under a mistake of law, the party who has paid it cannot after-wards recover it. But the court has never intimated that it is a high-minded thing to keep money obtained in this way; the court allows the party who has obtained it to do a shabby thing in order to avoid a greater evil, in order, that is, to put an end to litigation. But James, L. J., laid it down in ex parte James [L. R. 9 Ch. 609] that, although the court will not prevent a litigant party from acting in this way, it will not act so itself, and it will not allow its own officer to act so. It will direct its officer to do that which any high-minded man would do.”
In 3 Bogert on Trusts and Trustees, section 543, the gist of the foregoing decisions from which we have quoted is summarized. See, also, section 492, of the same work, where miscellaneous examples of a fiduciary seeking selfish advantage are cited and discussed.
The case of Ellicott v. Chamberlin, 38 N. J. Eq. 604, is cited by appellant as being at variance with the authorities just quoted. In that case the executor drove a hard bargain with the sole heir-at-law as a consideration for renouncing his executorship. She agreed to pay him $10,000, and of that sum she paid about half in installments, and gave him her promissory note for the balance. This nefarious transaction never came under the scrutiny of whatever probate or surrogate court had charge of the testator’s estate. When the unfaithful executor died, an action by his legal representatives was begun to recover on the unpaid balance of the note. The maker resisted and cross claimed for the amounts she had already paid. The court declined to give affirmative judgment for either litigant. Not the slightest inference can be drawn from that case that the courts of New Jersey would be any more tolerant of the misconduct of an unfaithful court official than the other eminent tribunals from whose decisions we have quoted.
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The opinion of the court was delivered by
Dawson, C. J.:
This appeal constitutes another milepost in eighteen years! litigation over the estate of the late Susan A. Day, of Miami county.
To an understanding of the latest phases of this litigation presently under our review, it will be convenient to summarize its earlier chapters as chronicled in our reports, viz.: Weichold v. Day, No. 25,209, 118 Kan. 598, 236 Pac. 649; In re Day, No. 27,615, and Weichold v. Day, No. 27,617, considered together in 129 Kan. 14, 281 Pac. 865; Weichold v. Day, No. 32,204, 144 Kan. 432, 61 P. 2d 1328; In re Day, No. 32,758, 144 Kan. 465, 61 P. 2d 1333. We give the serial numbers of these various appeals for their separate identification.
Susan A. Day died on May 12, 1919, leaving as her only heirs Etta M. Rose, a daughter; Harlan Day, a son; and Edith Rowe Weichold and Frank Rowe, alias Edwin Genthe, the last two being the children of Stella, a deceased daughter of Susan.
Following the death of Susan, what purported to be her last will and testament, dated two days before her death, was offered for probate and probated on the initiative of Etta M. Rose. By its terms of present concern a life estate in 240 acres of land was devised to Etta, a life estate in 160 acres to Harlan with remainder to Etta if she survived him, otherwise to Etta’s children then living. All the residue was bequeathed to Etta and Harlan in equal shares, except $1 each to the two children of their dead sister Stella.
On May 5,1921, Edith Rowe Weichold, then a minor, commenced an action to contest the will and to set aside its probate, and for an adjudication that Susan had died intestate, and for partition of the property among her heirs. Plaintiff prevailed; the will was set aside; and it was adjudged that Etta M. Rose should account for $2,422.50 she had received as the net rental income of the lands of Susan’s estate she had held possession of during the years 1919 to 1922, inclusive; that Harlan Day should account for $2,240 as the rent of the lands of Susan he had possession of for the years 1919 to 1922, inclusive; that Etta M. Rose and Harlan Day each owned an undivided one-third interest in the lands of Susan, and that Edith Rowe Weichold and Frank Rowe each owned an undivided one-sixth thereof, and—
“That said lands and all personal property involved in this action be divided and partitioned in the manner provided by law among the said heirs of Susan A. Day in proportion to their said ownership of said lands.
¿‘That the costs of this action to this date be taxed to the defendant Etta M. Rose.”
The foregoing judgment was rendered on April 18, 1923, and on appeal it was affirmed on June 6, 1925. (Weichold v. Day, No. 25,209, supra.)
Following the result of the foregoing litigation another will of Susan A. Day, executed in December, 1903, was produced from the repository provided for such instruments in the probate court, where it had lain for 23 years, and on August 7, 1925, it was offered for probate by John Rose, son of Etta M. Rose. It was admitted to probate on April 21, 1926, and later on its being subjected to a contest in the district court the will of 1903 was upheld as the valid last will and testament of Susan A. Day. That judgment was rendered on January 1,1927, and on appeal that judgment was affirmed by this court on November 9,1929. (In re Day, No. 27,615, supra.) Involved also in that appeal was a cross-appeal which is considered at length in Mr. Chief Justice Johnston’s opinion in In re Day, just cited, but requires no critical notice at this time.
Apparently another consequence of our decision affirming the judgment in 118 Kan. 598, 236 Pac. 649, was the filing of a petition for a new trial in that case under the code (G. S. 1935, 60-3007). That petition was granted, the judgment of April 18, 1923, was set aside insofar as it dealt with the ownership of the lands of the Susan A. Day estate, and a new trial on that issue was ordered. That judgment was rendered on January 1, 1927; appealed to this court; considered in connection with the appeal in In re Day, No. 27,615, supra, and affirmed therewith. Incidentally, there was also a cross-appeal from the overruling of certain motions filed in the matter involved in the petition for a new trial, but that cross-appeal and its consequences require no special consideration now.
The next appeal to this court was from a ruling of the trial court sustaining a demurrer to the evidence adduced in support of the petition for a new trial when that matter came on for hearing following our decision in In re Day, No. 27,615, supra, and Weichold v. Day, No. 27,617, supra. We reversed that judgment on November 7, 1936. (Weichold v. Day, No. 32,204, supra.)
A companion case to the one just mentioned was an appeal from a judgment setting aside the probate of the will of 1903 on technical grounds not easily summarized here. But see opinion of Mr. Justice Hutchison, filed November 7,1936. (In re Day, No. 32,758, supra.)
Turning now to the matters involved in the present appeal, it will be noticed that at its last appearance in this court Weichold v. Day, No. 32,204, supra, was reversed and remanded to the district court with instructions to try the issues of fact presented in defendants’ petition for a new trial. And in the companion case of In re Day, No. 32,758, supra, we reversed the judgment and remanded it for trial of the matters involved in the appeal from the judgment of the probate court admitting the will of 1903 to probate.
Pursuant to our mandates in these latest appeals, the district court tried the appeal from the probate court and sustained the probate of the will of 1903, and that judgment has become final.
In the last retrial of Weichold v. Day ordered by this court, all the records of all the earlier steps in this protracted litigation were introduced in evidence. There was also adduced in evidence the record of the final judgment of the district court affirming the judgment of the probate court admitting the will of 1903 to probate. Evidence was also adduced to show that Etta M. Rose knew of the existence of the will of 1903 and that it had* been in the official custody of the court ever since it was deposited there in 1903. • The evidence also tended to show that the guardian ad litem of Etta M. Rose’s three sons (to whom the remainder estate in the Susan A. Day lands was devised after the death of their mother, and grand uncle — apparently deceased since 1921), was aware of the existence of the will of 1903 and its whereabouts about the time the trial of the first action was held in 1923. There was also circumstantial evidence that the three sons of Etta M. Rose, although minors at the inception of this litigation in 1921, successively attained their majority as it proceeded. John, the eldest, was 23 years old when Weichold v. Day, No. 25,209, supra, was first tried and decided in 1923. All three of the sons — -quite naturally, of course — cooperated with their mother and their guardian ad litem against plaintiffs’ efforts to set aside the invalid will of 1919. To what extent they may have participated in withholding from the court the fact of the existence of the will of 1903 is merely a matter of debatable infer ence, although it is clear, of course, that John Rose, Etta’s oldest son, on August 7, 1925, offered it for probate, following the final judgment which set aside the will of 1919. On the other hand, there also was testimony that one of the attorneys for the plaintiffs contesting the will of 1919 had been the scrivener of the will of 1903— to the legal consequences of which fact as against his client in the protracted litigation attacking the will of 1919 and seeking to have the Susan A. Day lands partitioned as an intestacy, inferences to the prejudice.of plaintiff are urged.
The propriety of the trial court’s judgment of the present appeal can best be reviewed by giving space to its findings of fact:
“1. Susan A. Day, a widow, was a resident of Miami county, Kansas, and on December 3, 1903, she duly executed and acknowledged an instrument in writing to be her last will and testament, and on said date she caused the same to be deposited for safekeeping in the office of the probate court of said county, as permitted by law, a proper record of such deposit having then been made and entered in the records of said probate court as provided by law. The said written instrument remained on deposit in said probate court until August 7, 1925, on which date the same was offered for probate by John Rose, one of the parties hereto.
“2. Etta M. Rose, one of the parties hereto, a daughter of the said Susan A. Day, and mother of the said John Rose, knew personally that her mother, Susan A. Day, had executed the said instrument, dated December 3, 1903, as her will, at all times since the time of its execution. And the said Etta M. Rose and all of counsel for the defendants herein had ample opportunity to ascertain at the time immediately following the death of the said Susan A. Day, on May 12, 1919, the fact that said written instrument was then on ■deposit in said probate court, and they wholly failed to make demand for the .same until August 7, 1925.
“3. On May 10, 1919, the said Etta M. Rose and John Rose were present ■in the home of the said Susan A. Day, who was then in her fatal illness, and •whose death occurred on May 12, 1919.
“And on said date, namely May 10, 1919, the said instrument in writing in question in this case, and purporting to be the last will and testament of the said Susan A. Day, was fraudulently attempted to be executed and witnessed, by the forging thereon of the signature of a person purporting to be .an attesting witness thereto; by reciting, falsely, in said written instrument that Mrs. J. A. Smith, who was one of the named attesting witnesses therein, was then personally present at said time and place, which statement was wholly false and untrue; and by falsely reciting therein, in substance, that the said Susan A. Day, being of sound mind and memory and not under any undue influence, signed, published and declared said written instrument as and for her last will and testament in the presence of J. A. Smith and Mrs. J. A. Smith, .as the attesting witnesses thereto; and by falsely reciting, in substance, that the said witnesses, including Mrs. J. A. Smith, signed said written instrument :as such witnesses in the presence of said Susan A. Day and in the presence of each other at said time and place. All of which false recitals and statements contained in said written instrument, and all of said fraudulent and unlawful procedure were then known by the said Etta M. Rose to have been thus fraudulently and unlawfully committed at said time and place, and have been by her so known at all the subsequent times and during all of the proceedings of the issues involved in this case, including in the probate court and in the district court of Miami county and in the supreme court of Kansas, wherein was urged the admission to probate the said void instrument as the last will and testament of the said Susan A. Day, dated May 10, 1919.
“4. In the appeal from the order of the probate court of Miami county, dated June 5, 1919, admitting said written instrument dated May 10, 1919, to probate and of record in said probate court as and for the last will and testament of said Susan A. Day, deceased, which said appeal was prosecuted and tried in this district court before the Hon. J. O. Rankin, then judge of this court, which resulted in the order and judgment of this court denying said written instrument, dated May 10, 1919, to probate as and for the last will and testament of the said Susan A. Day, deceased, the then judge of this court, under date of April 18, 1923, made, among others, the following ‘findings of fact,’ to wit:
“ ‘No. 6. Anna Smith, whose name appears as a witness to said will, did not sign her name to the same, but her name was signed thereto by J. A. Smith.
“ ‘No. 7. Anna Smith was not present at the time the will was signed.’
“The said Anna Smith was the wife of the said J. A. Smith, one of the witnesses.
“Also, in the appeal from the judgment and decree of this district court to the supreme court of Kansas, which resulted in the affirmance of the judgment of this court denying said instrument to probate as and for the last will of Susan A. Day, deceased, in each and all of said proceedings in the probate, district and supreme courts, the said petitioner for a new trial herein, Etta M. Rose, at all such times, withheld all of the knowledge and information concerning the acts surrounding the attempted unlawful execution of said instrument, dated May 10, 1919, as and for the last will and testament of the said Susan A. Day, deceased. And each and all of the copetitioners for a new trial, associated with the said Etta M. Rose, namely, her sons Alton Rose, John Rose and Victor Rose, who were minors at the time this action was instituted in the probate court, but who have all attained their majority, have, by their acts in joining with the said Etta M. Rose in urging the sustaining of the petition for a new trial herein, have thereby ratified and endorsed tire program of the said Etta M. Rose herein.
“5. Subsequent to the denial by the supreme court of admission of the fraudulent instrument dated May 10, 1919, as the last will and testament of Susan A. Day, and when the estate of said deceased had been adjudged to be an intestate estate and the real estate of said estate was in the course of being partitioned as an intestate estate, the prior executed will, dated December 3, 1903, was then offered for probate as and for the last will and testament of the said Susan A. Day, deceased, said instrument having remained in said probate court during all the times since its deposit therein on December 3, 1903, and was at all the time and times available to the petitioners for a new trial herein. And said written instrument was, by the order and decree of this court under date of April 8, 1937, in case No. 10,066, entitled: In the matter of the appeal of Harlan Day, et al., admitted to probate as and for the last will and testament of the said Susan A. Day, deceased, and said written instrument, having been at all of the dates and times mentioned herein, could and should have been presented for probate by the said Etta M. Rose, or by her copetitioner for a new trial herein, instead of attempting in the probate court and in the district court of Miami county, and in the supreme court of Kansas, to have said void and fraudulent instrument, dated May 10, 1919, admitted to probate as the will of said deceased.
“6. The court finds that the said petition for a new trial, and the amendments thereto, were not filed in good faith by said petitioners; that the fact of the knowledge on the part of the petitioner, Etta M. Rose, of the fraud surrounding the execution of said instrument dated May 10, 1919, as a will; of the failure on the part of said petitioners to offer the valid will of December 3, 1903, for probate until after final denial by the supreme court of Kansas, to admit said void instrument to probate; of the failure on the part of said petitioners to request of the probate judge of Miami county the production of said deposited instrument, that the same could have been in the first instance, offered for probate; that all of the courts in which the issues and matters relating to this instant case have been presented and tried have been flagrantly imposed upon, since May 12, 1919.”
On these findings the trial court made the following conclusions of law:
“1. The petition for a new trial, as amended, should be denied for the reason stated in the amended findings of fact herein.
“2. The petition for a new trial, as amended, should be denied for the reason that, by the admission to probate of the instrument dated December 3, 1903, as and for the last will and testament of Susan A. Day, deceased, there remains no issue in this case.
“3. The admission of the will of Susan A. Day, deceased, to probate, supersedes all orders and judgments of this court, rendered herein on April 18, 1923, and on June 30, 1923, and the same are of no force or effect, except the order holding invalid the purported will dated May 10, 1919.
“4. Because of the acts, conduct and the program of procedure in the various courts on the part of said Etta M. Rose, and because the same have been accepted and ratified by the said John Rose, Victor Rose and Alton Rose, since attaining their majority of ages, the costs hereof should be assessed against the said Etta M. Rose, John Rose, Victor Rose, Alton Rose.”
On the above findings and conclusions the trial court rendered judgment denying the petition for a new trial, and adjudging the costs against the petitioners. They appeal, assigning various errors which may be summarized as a complaint against the general result, and that in view of the trial court’s conclusions, especially con- elusion of law No. 3, judgment should have been in favor of appellants.
It may be here observed that if conclusion No. 3 is correct and the admission to probate of the 1903 will superseded all previous orders and judgments of the trial court, which included such findings of intestacy and for partition as were made, except that holding invalid the will of 1919, it would seem to follow that the assets of the estate of Susan A. Day, after her debts and the expenses of administration of her estate are paid, should pass to the legatees and devisees named in her will, bearing in mind that the will contains no residuary clause and that she may have left property undisposed of which would pass to her heirs, and that therefore judgment should have been for the appellants unless, for reasons hereafter referred to, they are barred from taking under the will.
The effect of the court’s findings and judgment is that Susan A. Day did not die intestate, and that her 1903 will is valid, but only inferentially is there any judgment that may be construed as barring appellants from taking as legatees or devisees under the will. To leave the cause in its present condition is only provocative of future litigation.
In New v. Smith, 97 Kan. 580, 155 Pac. 1080, it was said:
“When a lawsuit has been in court for fourteen years, during which time it has been appealed to the supreme court five times, it is imperative that some broad general principles of law and equity be rigorously applied, and the litigation brought to a close and final judgment ordered. This rule applied here.” (Syl. J2.)
While in Alexander v. Clarkson, 100 Kan. 294, 297, 164 Pac. 294, which involved a long chain of litigation, it was stated thus:
“There are two important ends in view in every lawsuit; the first is that it be decided right; and the second, which is only less important than the first, is that it be decided.” (p. 297.)
The matter of long-continued litigation was involved in Gibson v. Boynton, 112 Kan. 173, 175, 210 Pac. 648, and commented on thus:
“Any lawsuit which has been protracted for fourteen years is a prima }acie reproach to those who have to do with the administration of justice.” (p. 175.)
And see Stillie v. Stillie, 129 Kan. 19, 23, 281 Pac. 925, and McCleery v. MoCleery Lumber Co., 136 Kan. 484, 493, 16 P. 2d 517, where the rule announced in New v. Smith, supra, was applied.
The history of what has transpired in the instant case has been recited, and it seems time to bring the matter to a close if that can be done. Under G. S. 1935, 60-3317, it is provided that “in any case pending before it, the [supreme] court shall render such final judgment as it deems that justice requires,” etc.
We have accordingly examined the record to determine whether the, findings of fact are supported by the evidence or reasonable influences to be drawn therefrom, whether the conclusions of law properly follow, and to determine whether or not a final order may not now be made.
It appears that Etta M. Rose knew at all times that her mother had made the will of 1903; that she was instrumental in procuring the execution of the will made in 1919 and which was set aside in the trial court in 1923, and that during that trial she failed to disclose the existence of the 1903 will, a disclosure of which at that time should have ended the litigation — or at least would have avoided much of what has since transpired. Notwithstanding the probate of the 1903 will in 1925, and the fact that it is now not subject to attack as being the last will, we agree with the trial court that her actions have not been in good faith, and with the inferential conclusion that she is barred thereby and by her concealment of the 1903 will. (G. S. 1935, 22-233, and citations.)
We do not, however, agree that her actions bind her children, nor that because they were petitioners for a new trial with their mother they can be said to have adopted her course of conduct and became bound thereby. John Rose was born in 1900, Alton Rose was born in 1906, and Victor Rose in 1907. When Susan A. Day made the 1903 will John was not old enough to know a will was being made, even though he were present, and the two younger boys were not then born. There is no evidence that anyone told them of the will until 1925, unless they are charged with that knowledge because their guardian ad litem learned of it either just before or just after the first suit was tried in April, 1923. While appellees charge that the guardian ad litem learned of it in time to have informed the trial court, the appellants counter with the fact that in that suit plaintiffs were represented by counsel who drew the 1903 will, and notwithstanding their knowledge so acquired, they sought to have Susan A. Day declared to have died intestate and her real estate partitioned. We shall not decide the interesting question of who had notice, who was bound, or the ethics or morals involved. The judgment setting aside the adjudication with respect to intestacy of Susan A. D,ay must answer. It does not appear that the children personally knew of the will. If the judgment of the trial court tends to bar them as legatees and devisees under the 1903 will, it is on the theory they are bound because they joined with their mother in seeking a new trial of the 1923 suit. For them to be bound it should appear their interests were the same as hers. It appears that from 1903 Susan A. Day owned 400 acres of land in Miami county. Without going into detail, under the 1903 will Etta M. Rose was given a life estate in 160 acres, and the testator’s brother was given a life estate in the remaining 240 acres, the fee in each going to the children of Etta M. Rose living at the death of the life tenant. So it appears the children had a very definite interest in the lands of Susan A. Day under that will, and that it varied in quantity and quality from, and to a measurable extent was at variance with, any interest Etta M. Rose may have had. And that is not all. Under the 1919 will, out of which this trouble arose primarily, Etta was devised the fee in 240 acres, Harlan Day a life interest in 160 acres, with remainder over to Etta, and only in event of her death during the period of his life estate were her children to inherit. It can readily be seen that if the 1919 will stood, the children’s prospective interest was contingent and much less than under the 1903 will, which gave them a vested remainder; and to hold that they assisted their mother in any nefarious conduct of which she may have been guilty in procuring the execution of that will, or in attempting to sustain it as the last will of Susan A. Day, when they were aware of the 1903 will, is to hold something that is not consistent with usual behavior. And it may also be remarked that to say their guardian ad litem concealed the 1903 will, with its much more beneficial- terms for his wards, in order that the 1919 will might be sustained, is also too much. His integrity and professional. standing make such an assumption an unwarranted slur on his memory.
When the 1903 will did finally come to light, some interested person was bound to offer it for probate. What was wrong with John Rose’s asking that it be admitted? And after it was admitted, why should he and his brothers not petition the court for a retrial of the case in which it had been found his benefactress grandmother died intestate? We conclude that the children of Etta M. Rose were not estopped by reason of their asking relief in the same petition as their mother.
As has been pointed out, the trial court made no specific order or judgment, perhaps for the reason it was ruling primarily on the petition for a new trial. Are we in position to direct such a judgment?
From what has been said, it is clear that the 1903 will has been duly admitted to probate, and that it is no longer open to any contest. No error can be discerned in the trial court’s finding and conclusion that Etta M. Rose, by reason of conduct heretofore mentioned, is barred from taking the life estate devised to her. By reason thereof the interest of her three children in the lands so devised is accelerated and they are now the lawful title holders thereof. As to the tract in which a life estate was devised to John Schofield, the record seems to indicate that he died in 1921. If so, the title thereto in Etta’s children is also now complete.
We concur in the trial court’s third conclusion of law. However, since the will of 1903 has been sustained, it necessarily follows that so much of the judgment in Weichold v. Day, No. 25,209, as ordered a partition of the Susan A. Day lands on the assumption that she had died intestate cannot stand; and on the new trial which the district court granted pursuant to the mandate of this court in No. 32,204, that order of partition should have been set aside. And this conclusion requires our partial disaffirmance of the trial court’s first conclusion of law.
During a considerable part of the time this litigation has been pending a receiver has been in charge of the lands, collecting rents and paying taxes. We are not advised with what amount of money he may now stand charged. Nor are we advised whether the proceedings in the probate court with respect to the administration of the estate of Susan A. Day, deceased, have been completed and payment made of the legacies under her will and of any legally allowed demands, and of the costs of administration. Although this matter is not before us, it should be done, if it has not been done. If, on final settlement, there be any balance on hand, it should be divided and distributed to the persons entitled. If there is a deficit and the executor or administrator with the will annexed does not have sufficient moneys to pay the specific legacies, allowed demands and costs of administration, the district court should direct the receiver to pay the amount of such deficit to the executor or administrator as the case may be.
Owing to the rather unusual nature of this protracted litigation and its result as herein specified, and as to this court seems just and equitable under the circumstances, under authority of Singer v. Taylor, 91 Kan. 190, 137 Pac. 931; Chapman v. Kennett, 94 Kan. 535, 146 Pac. 1153; Medill v. McIntire, 136 Kan. 594, 16 P. 2d 952; also, Nelson v. Schoonover, 89 Kan. 779, 132 Pac. 1183; Aten v. Tobias, 114 Kan. 646, 220 Pac. 196; Amusement Syndicate Co. v. Martling, 118 Kan. 370, 235 Pac. 126 (syl. ¶¶ 8, 10), we direct that all of the court costs, in both the district and this court, including all allowances made to guardians ad litem and to the receiver be paid out of any moneys remaining in the hands of the receiver. We also direct the district court to allow counsel for all parties reasonable attorneys’ fees for their services in this protracted litigation — all of which allowances are to be made a charge on the estate, and to be paid by the receiver (State, ex rel., v. Bone, 125 Kan. 818, 839, 266 Pac. 85, and syl. ¶ 11); and if he has insufficient funds therefor that such allowances be made a lien on the lands devised under the will of Susan A. Day, deceased. If necessary that such lien be imposed, an order of sale may follow on praecipe of any party in interest.
The judgment of the trial court is modified and supplemented as hereinabove indicated, and the cause remanded for further proceedings as herein directed. | [
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The opinion of the court was delivered by
Wedell, J.:
This appeal is from an order overruling a motion for a nunc pro tunc order. The controversy does not relate to the rights of the parties to the main action, but is purely ancillary thereto and pertains to a dispute over attorneys’ fees between two parties who appeared as attorneys of record for the plaintiff in a partition suit. The partition suit has been here before. (Schneider v. Schneider, 143 Kan. 668, 56 P. 2d 445.) In the instant appeal J. H. Snyder is the appellant, and D. G. Smith is the appellee.
On appeal of the partition suit the cause was remanded with directions to proceed in accordance with the views expressed in our opinion. The parties finally agreed upon a settlement and filed with the clerk of the district court a “stipulation and agreement of settlement.” The provision of that stipulation, now involved, reads:
“The attorney’s fees in this cause are set and determined to be $3,000, of which $1,500 is to be paid to D. G. Smith and J. H. Snyder, as attorneys for the plaintiff, and $1,500 to be paid Bird and Bird, as attorneys for the defendants other than Frank Schneider.”
The stipulation further provided in substance that in the event the entire matter was not fully closed within forty days from the date of the stipulation, the trial court should enter judgment in accordance therewith and issue or direct the clerk to issue any orders, deeds or instruments necessary to carry out the agreement. The terms of the agreement were not executed by the parties within the time fixed, and the trial court proceeded to execute the terms of the stipulation. During the January, 1937, term of court, and on January 22, the court signed a journal entry which did not embrace the subject of attorney fees. On the same day, however, the court approved a separate order for the distribution of funds in which the clerk or deputy clerk was directed, among other things, to disburse to Bird & Bird the sum of $1,500, and $1,500 to D. G. Smith, appel-lee herein. Appellant J. H. Snyder was not present in court on the date of that order. About two months later, and on March 17, plaintiff in the partition action filed a motion to retax costs and to modify the order of distribution to conform to the stipulation. In it, however, plaintiff did not mention the subject of this fee. On the same date, to wit, March 17, appellant filed a motion in which he requested the court to direct the appellee to remit $750 of the $1,500 to him. On March 23 appellant, upon request, was permitted to withdraw his motion of March 17, and was granted permission to refile it. The motion was never refilled. The January term expired on April 4, 1937. On June 14, 1937, appellant filed a writing which he denominated, “A motion for nunc pro tunc order.” The pertinent portion thereof reads:
“Comes now J. H. Snyder and moves the court for an order correcting the statement of disbursement of moneys dated January 25, 1937, and filed herein, so as to speak the truth, for the reason that the said statement as filed is not a correct statement and does not conform to the terms of said stipulation and agreement of settlement filed in said cause on November 13, 1936, and the true understanding and agreement of the parties whose signatures are subscribed thereto, in this, that—
“The said statement sets out the name of D. G. Smith, attorney of record for plaintiff, as receiving fifteen hundred ($1500) dollars attorney’s fees by virtue of said disbursement of moneys, and fails to mention the name of his movant, J. H. Snyder, attorney of record for plaintiff, in any part of said statement, whereas, in truth and fact, the said statement should show the sum of seven hundred fifty {$760) dollars being allowed to said D. Q. Smith as attorney’s fee in said cause, and) the sum of seven hundred fifty {$760) dollars being allowed to- said J. H. Snyder as attorney’s fee in said cause” (Italics inserted.)
A hearing was had on the motion. The court admitted evidence, in accordance with appellant’s request, for the purpose of disclosing what the understanding of appellant and appellee actually was concerning the division of the fee. The evidence covered the entire period of litigation and consisted of an affidavit by appellant and ■oral testimony on both sides. The motion was overruled. No journal entry of judgment was filed covering the ruling. The notice of appeal was only from the order overruling the so-called motion for the order nunc pro tunc. The specifications of error do not include the ruling on this motion. Appellant’s argument on appeal relates only to the order of distribution which was made during the previous term of court and from which no appeal was perfected.
Appellee has moved to dismiss the appeal upon various grounds. The motion should probably be sustained, but in view of the nature of the case we have concluded to treat on its merits the question of whether the motion for a nunc pro tunc order was properly overruled.
A genuine nunc pro tunc order may, of course, be made after the term at which the order or judgment to be affected was rendered. In Cazzell v. Cazzell, 133 Kan. 766, 3 P. 2d 479, it was held:
“Where matters which are an essential part of a judgment are inadvertently ■omitted from its written text, with the effect that it does not fairly recite what the court intended, and perverts that intention, the omitted matter may be supplied and the journal entry of judgment cori'ected even after the close of the term, at the instance of an interested party.” (Syl. ¶ 2.)
In the instant case it will be observed the motion did not allege the order of distribution was made inadvertently or by mistake, nor that the order of distribution which was made was not actually intended to be made. The purpose of the motion was to alter, to change, the order which was actually made to an order which appellant claims should have been made. The motion did not merely seek an order to conform to the stipulation, but it sought an order for which the stipulation itself did not provide. It sought to have the $1,500 attorney fee divided equally between appellant and ap-pellee. The stipulation provided for no particular division of the $1,500 fee. By his motion appellant sought an opportunity to show that such division of the fee conformed to the actual understanding of the parties. These are not the functions of a motion for a nunc ;pro tunc order. The purpose of such a motion is to obtain the order or judgment which was actually made at the time it was made. The question on such a motion is, therefore, what order was in fact made at the time by the trial court. (Aydelotte v. Brittain & Co., 29 Kan. 98; Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Graden v. Mais, 83 Kan. 481, 483, 112 Pac. 107; Stone v. Pugh, 99 Kan. 38, 160 Pac. 988.)
In Klein v. Southern Pac. Co., 140 Fed. 213, the principle was concisely and clearly stated as follows:
“The office of a nunc ‘pro tunc entry is not to make an order now for then, but to enter now for then an order previously made; . . .” (H'eadnote, fl 2.)
As stated, appellant’s motion was not upon the ground the trial court did not intend to make the order it did make and that therefore it was not actually the order of the court. Indeed, it would have been futile to so contend. The deputy clerk, called as a witness by appellant, testified to the effect that she had consulted the judge concerning the disbursement of the fee before she made the disbursement to appellee. Her reason for consulting the judge concerning it was that appellant had requested that any amount deposited for him as attorney fees should be sent directly to him. She testified: “I had paid the money out on the order of the court.”
But let us turn now to the question of the actual understanding between appellant and appellee as to the fee which appellee was to receive. The trial court heard all of the evidence which appellant offered in support of his motion. The evidence as to the actual understanding relative to any division of the fee, while conflicting, was clearly sufficient to indicate that appellee was to receive $1,500 for his services. In a review of such evidence we need, of course, look only to the evidence which is favorable to the appellee. It is unnecessary to narrate all of that evidence. A few pertinent facts will clearly indicate the nature of the testimony. Appellee testified in substance: Appellant was the son of the plaintiff; when he (ap-pellee) first began representing the plaintiff, her son had not yet been admitted to practice law; the suit first involved the title to an interest in the property and an accounting; plaintiff discussed that suit with appellee, both before and after appellant was admitted to the bar; after his admission appellant began the practice of law in Kansas City, Mo., where he is now located; appellant’s name was included as attorney of record with appellee merely as a matter of courtesy; much difference of opinion arose between them before the appeal of the action to the supreme court; plaintiff had specifically advised appellee to disregard anything appellant did; the plaintiff advised appellee that she had employed him to bring the action and was depending upon him to clean it up; that the agreement as to a fifty percent division of the fee pertained to the amount which might be recovered in an accounting; that no money was ever received from an accounting; appellant had been a burden rather than a help to him; his name appeared on some of the pleadings and not on others; as the disagreement between them increased, appellee, in order to protect himself, finally filed suit .in the district court of Crawford county against plaintiff for his fee in the sum of $1,500; when the stipulation of settlement was being prepared he definitely advised appellant in the presence of other witnesses, including plaintiff, that he was insisting on receiving the $1,500 for his services, and that he would not dismiss his suit against the plaintiff for that amount until he obtained that fee; appellant did not demur to that demand and plaintiff advised him (appellee) to finish the suit and to pay no attention to appellant; appellant then interrupted his mother and the following conversation occurred:
“ ‘Mama, you don’t know what you are doing,’ and she said, ‘If I don’t, Judge Bird and Glick (appellee) do,’ and the stipulation was signed and I got my money and dismissed the case and paid the costs as I agreed to.”
The testimony of appellee concerning his insistence on the $1,500 fee at the time the stipulation was being prepared was corroborated by the court reporter.
Appellee’s stenographer testified in substance: When the partition suit was filed appellant did not desire to appear as attorney of record; she heard plaintiff on two occasions advise appellee she was looking solely to him to take care of the suit.
Assuming the question is here for review, the order overruling the motion for an order nunc pro tunc must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This action was begun to foreclose a mechanic’s lien oh a parcel of land in El Dorado. Other lien claimants came into the litigation; also, the party which held a mortgage on the property.
Issues were joined, and the trial court adjudicated the claims of the various litigants, giving precedence to some of them; and ordered foreclosure of the mortgage, and gave a money judgment in favor of certain other parties to the litigation.
The only matter presented for our review relates to the trial court’s order which fixed a period of redemption after sale in foreclosure at six months. That order was based on the trial court’s finding of fact, which reads:
“8. The court further finds that said mortgage was given for the purchase price of said real estate and the improvements to be erected thereon, and was and is a purchase-money mortgage within the meaning of the statute relating thereto, and that default has been made in the conditions of the said mortgage before one third of the purchase price of said real estate and said improve ments has been paid by the defendant James 3ST. Kirkwood, and that the period of redemption should accordingly be limited to six months from the date of sale.”
Appellants argue that the mortgage was not given for the purchase price; and if it were, that more than one third of the purchase price had been paid, so as to entitle them to eighteen months to redeem the property.
In support of these contentions appellants direct our attention to an abstract based on a partial and altogether incomplete transcript of the record. Appellees object to its consideration. Counsel for appellants would assure us that the portion of the record they have had transcribed and abstracted is all we need to determine the single question we are asked to review. That does not appear. Where no complete transcript of the evidence is forthcoming, a challenged finding of fact made by the trial court is not open to appellate review. This rule is one of logic as much as it is of law. How could this court say that the trial court erred in its finding of fact without a complete record being available to determine the point? In Farmers State Bank v. Crawford, 140 Kan. 295, 37 P. 2d 14, it was said:
“As a general rule any so-called ‘trial error’ is not reviewable without a complete transcript of the record, and an abstract based thereon, which will fairly reflect the entire situation as it appeared to the trial court when it made the ruling complained of. In respect to an incomplete record it sometimes happens that the rival litigants agree on the question of law or of fact on which the ruling was made, and thus the record prepared for this court can be greatly shortened.” (p. 296.)
Among other decisions holding that a review of a finding of fact cannot be had where no transcript or only an incomplete transcript of the evidence has been supplied by the appellant, are the following: King v. Stephens, 113 Kan. 558, 215 Pac. 311; Amusement Syndicate Co. v. Martling, 118 Kan. 370, 235 Pac. 126; Shreve v. White, 143 Kan. 838, 839, 57 P. 2d 24. See, also, Richards v. Kansas Electric Power Co., 126 Kan. 521, 526, 268 Pac. 847; Putnam v. City of Salina, 136 Kan. 637, 641, 642, 17 P. 2d 827.
Another objection is interposed to this appeal based on appellants’ failure to set out a formal specification of error as required by the rules of appellate practice. (G. S. 1935, 60-3826, Rule 5; Townsend v. Railway Co., 86 Kan. 972, 122 Pac. 1119.) Passing that point, however, since the one error urged on our attention is not open to review because of the insufficiency of the record, the appeal will have to be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Webell, J.;
This was an action for damages for injuries sustained by the plaintiff when the automobile in which he was riding was struck by defendant’s train at a township road crossing. Plaintiff appeals from the order sustaining a demurrer to his evidence.
The essential facts as disclosed by plaintiff’s own testimony were; Plaintiff’s friend, Orville Loftin, owned and operated a 1926 or 1927 model Whippet coupé in which they were returning to Lawrence after having finished a day’s work on the Mitchell farm located about eight miles northwest of the city of Lawrence; it was about five o’clock in the afternoon when they left the farm, which was approximately one mile from the crossing; the train came from the west and plaintiff and his friend approached the crossing from the north; plaintiff was seated on the right or west side of the car; there was no glass in either the east or west car window; the parties were familiar with the railroad crossing, as they had crossed it the previous day; plaintiff was familiar with the train schedules on the day of the accident; it had rained somewhat and the road was slightly slippery; there were no chains on the tires; they traveled from the Mitchell farm to the crossing at the rate of about twenty miles per hour until they reached a point about twenty or twenty-five feet north of the track; the accident occurred on the 15th day of August, 1934, and there was a field of growing corn west of the highway which obscured plaintiff’s vision to the west until they reached the point twenty or twenty-five feet north of the track; at.that point plaintiff looked west and could see about 800 feet along the track, but he saw nothing; the driver shifted into second gear when they were about fifteen to twenty feet north of the north rail; he could then have seen 1,000 feet up the track; there was a big warning sign, “Look Out for the Cars,” on the north side of the track; plaintiff, however, knew the track was there without the warning sign and knew that a scheduled train was due there at about that time; on their approach to the crossing the parties had been discussing the question of whether the train had passed; he knew it was up to him to look for a train approaching from his side; he had nothing to do except watch for the train; when they shifted gears they did not come to a stop, but slowed down to probably six or eight miles an hour; perhaps they did not slow down to more than ten miles per hour; after they shifted gears they could see 1,000 to 1,200 feet up the track; there was then no train in sight; there were some small ruts just north of the crossing and they had some trouble getting up, but the car did not stop at any time; after they shifted gears the car naturally picked right up; the engine was not killed and the car did not stall on the track; plaintiff did not look west from the time they shifted gears until they were on about the middle of the track; they heard no bell or signal; the wheels spun a little in the ruts; he looked to the west when they were about half way across the tracks; the train was then between two and four hundred feet west of them; it was coming at a terrific rate of speed; the front wheels of the car were then over the south rail of the track; he glanced back and noticed that his friend saw where the train was and kicked the motor wide open; the back wheels of the car passed over the south rail and the train struck the rear spring of the car, which extended back of the car; just after the back wheels of the car went over the south rail, the wheels spun; when they were struck the car was traveling about ten or twelve miles an hour; he was twenty-seven years of age and he thought his vision was good.
C. A. Buchhein, plaintiff’s father, a witness called by plaintiff, testified to the effect that at a distance of twenty feet north of the track you could see the track for a distance of probably 1,200 feet.
Plaintiff contends the trial court erred in sustaining the demurrer. He urges defendant could have averted the collision. In other words, he rests his case on the doctrine of last clear chance. That doctrine, however, can have no application where the contributory negligence of. the plaintiff is not shown to have ceased. See Bazzell v. Atchison, T. & S. F. Rly. Co., 133 Kan. 483, 300 Pac. 1108, and numerous cases therein cited.
In ruling on the demurrer the trial court was, of course, obliged to view plaintiff’s evidence in the light most favorable to him. (Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923.)
Notwithstanding the fact plaintiff was not driving the car, but was merely riding therein, he was nevertheless under a duty to exercise reasonable care and precaution for his own protection. He cannot recover damages when he failed to look for an approaching train, which he could have plainly seen had he looked, and failed to warn the driver of the approaching train. (Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Hooker v. Missouri Pac. Rld. Co., 134 Kan. 762, 8 P. 2d 394.)
The fact is inescapable, in the instant case, that if plaintiff had looked to the west between the time they shifted the gears and before they reached the track, he would have seen the approaching train. Nothing obscured his vision. He could then have seen the train for a distance of not less than 1,000 to 1,200 feet. There was nothing to have prevented him from warning the driver of the imminent danger. According to his own evidence only one answer is possible. It is that he did not look and hence, of course, did not see the train nor warn the driver of the impending danger. If the car in which he was riding, after they had shifted gears, and after the car had picked up speed, was only traveling at the rate of ten miles per hour, the car would have traveled 29.4 feet in two seconds. Viewing the evidence in its most favorable aspect to plaintiff, we will say he could have seen only 1,000 feet to the west. In order for the train not to have been in plain view, it would have been necessary for the train to have been traveling faster than 500 feet per second. At 500 feet per second, the train would have traveled 340.90 miles per hour. Obviously the train was in plain view. If the train was traveling 70 miles per hour, it would have traveled 102.62 feet per second. At such speed it follows that two seconds before the collision occurred the train was only about 205.24 feet west of the crossing. The train was therefore not only in plain view, but dangerously near. Plaintiff is presumed to have seen what he could have seen had he looked. His contributory negligence in failing to look and in failing to warn the driver was established by his own evidence, as a matter of law, and his action must fail. (Young v. Railway Co., 57 Kan. 144, 45 Pac. 583; Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6; Crane v. Railway Co., 89 Kan. 472, 131 Pac. 1188; Gaffney v. Railway Co., 107 Kan. 486, 192 Pac. 736; Pagan v. Lowden, 145 Kan. 513, 518, 66 P. 2d 567.)
Plaintiff’s evidence was that the train was coming with terrific speed. A person who attempts to negotiate a railroad crossing directly in front of a rapidly moving train, of which approach he is or should be aware, is guilty of contributory negligence which bars his recovery. (Railway Co. v. Schriver, 80 Kan. 540, 103 Pac. 994; Jacob v. Railway Co., 97 Kan. 247, 154 Pac. 1023.)
In the instant case plaintiff’s negligence, in failing to look and warn, did not only exist prior to entering upon the crossing but continued until the entire car was upon the crossing. He did not look until practically the last moment. In Gilbert v. Railway Co., 91 Kan. 711, 139 Pac. 380, it was said:
“The plaintiff was engaged in an active disregard of his own safety up to the last moment when he might have been saved, and consequently has no standing to invoke the doctrine of last clear chance.” (p. 718.)
Moreover, if the trial court had assumed that plaintiff’s contributory negligence had ceased, which the trial court was unable to do in view of plaintiff’s own testimony, the fact still remains that plaintiff’s evidence did not bring him under the doctrine of last clear chance. His own testimony clearly showed the car was never entrapped or in a predicament from which it could not extricate itself. The motor had not stopped, the car was not' stalled, but on the contrary, notwithstanding the fact it had been raining, and the road was slightly slippery, the car picked up speed after they shifted gears. Under the evidence the doctrine of last clear chance was not applicable. (Tarter v. Missouri-K.-T. Rld. Co., 119 Kan. 365, 367, 239 Pac. 754; Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 308, 252 Pac. 472; Bazzell v. Atchison, T. & S. F. Rly. Co., supra.)
We have carefully examined the authorities cited by plaintiff on the doctrine of last clear chance. They are not applicable. They contain elements of entrapment, where the negligence of plaintiff had ceased.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to construe a deed and to quiet title to the land conveyed thereby. The plaintiff prevailed and the defendant, Robert McPherson (grantor in the deed), appeals.
. The facts were substantially as follows: Robert McPherson was the owner of certain land in Doniphan county. In 1902 he executed and delivered to his son, James McPherson, a deed to the land which, after the granting clause and the description of the land, contained, among others, these provisions: “During the term of his natural life, and at his death to go to his blood kind. The party of the second part, assuming a mortgage of two thousand dollars held by D. N. Forbes, and in case said second party (James McPherson) fails to satisfy said mortgage -when due and payable, then title to above described land shall revert to . . . party of the first part (Robert McPherson).” The deed specified a consideration of $3,500, “the receipt whereof is hereby acknowledged.” It contained the usual warranties, was acknowledged January 18, 1902, and filed for record January 10, 1906. James McPherson entered into possession of the real estate and occupied the same as his property until his death June 6, 1923. During his lifetime he paid and satisfied the mortgage to Forbes. He left, as his only heirs, his widow, Nellie McPherson, the plaintiff, and a minor son, Deeler McPherson. In an action to quiet title the widow alleged that she and the son were each owners of an undivided one-half of the property. The defendant and appellant, Robert McPherson, claimed that, by the terms of the deed, the land reverted to him on the death of James, his son. The trial court held that the deed should be construed and was meant to convey a fee simple title to the property, and that, at the time of his death, James R. McPherson owned the land in fee simple.
Robert McPherson contends that while the deed attempted to create an estate and remainder in the blood kind or kin of James McPherson, the language was so broad and general that it would be impossible to determine who are his blood kin, and that, therefore, the language was so vague, indefinite and uncertain that it should not be given effect, and that a life estate only was conveyed, and that title, on the death of James McPherson, reverted to him (Robert McPherson). On the other hand, it is contended by the plaintiff that the deed conveyed an estate in fee simple; that it was not a deed of gift, but was a sale by Robert to James McPherson for a valuable consideration. She also contends that if the words “at his death to go to his blood kind” are so indefinite as to make them meaningless, then not only do these words fail, but that the entire clause, “during his lifetime and at his death to go to his blood kind,” should fail; that when he executed the deed it was his intention to part with his entire interest, and having received consideration therefor he should not now be permitted to claim to be the owner; that the deed is equivalent to one which conveys the land to James McPherson during his natural life, and at his death to his heirs, and under the rule in.Shelley’s case would vest a fee simple title in James McPherson. (Kirby v. Broaddus, 94 Kan. 48, 145 Pac. 875; Howe v. Howe, 94 Kan. 67; 145 Pac. 873.
If the deed conveyed a fee simple estate, Robert McPherson has no interest in the property. If a life estate was conveyed to James McPherson with remainder in equal parts to “blood kin” or “kind” who survived him, Robert McPherson would be one of the remaindermen. But it appears that Robert McPherson contended in the trial court that he never parted with the fee, but only a life estate, and that upon the death of James the land reverted to him (Robert).
That Robert McPherson intended to convey more than a life estate when he executed the deed is indicated by the language of his deed, that in case “the said second party fails to satisfy said (Forbes) mortgage when due and payable, then the title to the land shall revert to Robert McPherson, party of the first part.’.’ Robert McPherson was personally liable on the note. He determined to safeguard his interest by providing that in the event James did not pay the mortgage, then the title should revert. But so far as Robert’s claim is concerned, it makes no difference whether title passed to James on delivery of the deed or whether it became absolute only on satisfaction of the (Forbes) mortgage. James satisfied the condition. He paid the mortgage. And since the only condition on which Robert could claim a reversion has been satisfied, he has no claim on the property.
It seems unnecessary to discuss or decide other questions raised in the briefs. Robert’s contention that he conveyed a life estate only, and that upon the death of James the title reverted to him, is not good, nor can he now mend his hold by contending that the property should go to the blood kin of James McPherson, of whom he is one. (Redinger v. Jones, 68 Kan. 627, 75 Pac. 997.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A little before noon a team of mules attached to an ice wagon of the City Ice and Delivery Company of Wichita were left in the street untied while the driver went into a restaurant for lunch. They ran away, and John Smith received fatal injuries in an attempt to stop them. His widow brought this action against the company, recovering a judgment for $10,000, from which it appeals.
1. The law treats the voluntary risking of one’s own life as negligence per se if the purpose is merely to protect property, but not if it is to save human life. Here a reversal is asked principally upon the contention that the decedent was conclusively shown to have been guilty of contributory negligence, inasmuch as there was no evidence tending to show that any person was placed in peril by the runaways at the time the decedent attempted to stop them; that although they had entered a street intersection while a number of school children on their way home were on the further corners, they turned into the cross street and passed the children before the decedent’s attempt to stop them, and that neither these children nor any one else was in danger at that time.
The defendant relies largely upon Devine v. Pfaelzer, 277 Ill. 255, annotated in L. R. A. 1917 C 1080. There one who lost his life in an attempt to stop a runaway horse drawing a buggy was held guilty of contributory negligence as a matter of law because the occurrence took place in a residence district, on a street which no one testified was a busy one, there being no testimony, nor any circumstance that might raise an inference, that there was anyone in the roadway or that any person was in the slightest danger from the horse, and no evidence from which it could be presumed what was in the mind of the person killed or that he had any occasion to believe anyone to be in danger. Even in that situation two justices dissented. The court said, however, that to defeat a plea of contributory negligence by showing an act to have been done to preserve life “it is not essential . . . that the effort should be to save the life of some particular and definite person” (p. 260), citing Halloran v. City of New York, 153 N. Y. Supp. 447, which it referred to as a case “where a team of horses was running away, dragging a street sweeper, in what the court called in one place a busy street and in another a measurably busy street, although the danger was not at the moment imminent to a definite person,” and which it distinguished by saying: “St. Lawrence avenue was a residence street, and bore no resemblance to the busy street in Brooklyn where the team was running away with the street sweeper.” (p. 261.)
Here there was evidence tending to show these facts: The street (Waterman) on which the runaway began is parallel to and four blocks south of Douglas avenue, the principal street of the city. After the mules had run west nearly two blocks they turned north into South Topeka avenue and were stopped near the next crossing, of which a witness said, “There are cars and people passing every minute, that corner.” In the first block of the street into which the mules turned all the houses except one — an automobile agency— were residences. In the two blocks north of that there were business houses. “There was quite a bit of traffic on Topeka avenue . . . south to Waterman street about the noon hour.” “There was lots of people on the street at the time these mules was running there. . . . There were people in all directions.” There were cars parked along South Topeka avenue north of Waterman street. “The street was just lined through there with cars parked along the curb.” “There were cars parked in the street, but they were not parked so much on one side as the other, or this wagon could not have gotten down this side of the street without hitting cars.” The ice wagon swung from one side to the other. “One mule would pull on the chain and swing the wagon that way, and the other mule’s chain would tighten and jerk it back and keep whipping it back and forth.” When the mules turned north “there were cars on Topeka avenue and a few people walking along.” There were automobiles with people in them coming south on that street less than a block away. Asked, “Did you see people up along Topeka avenue afoot— pedestrians on the street?” a witness answered, “I did; yes, sir.”
The difference between the Devine-Pfaelzer case and this upon the vital matter of the amount of traffic at the place of the accident is too obvious to require comment. Here the jury could have had no difficulty in saying that the street was not only “measurably” busy but quite busy, or busy without any qualifying adjective. The evidence already referred to was sufficient to take the case to the jury, even if the fact of a number of school children having been at the west corners of the intersection of Waterman and South Topeka were to be wholly ignored. The driver of the mules fixed the time of the runaway at twenty minutes before noon. The principal of a school a block south and a block west of the intersection referred to testified that the first grade of the primary department, consisting of about seventy pupils of an average age of seven or eight years, were dismissed at 11:30. The decedent at the time the mules started to run was in a motor truck going south on the first street east of South Topeka avenue, about to enter the intersection with Waterman street. There was evidence to this effect: The mules passed in front of the truck, the driver of which turned and followed them on their left side, overtaking but not passing them. The truck and the mules turned north together on South Topeka. Right at the corner the decedent jumped out of the truck, ran around behind the ice wagon, caught up with the mules, and in attempting to stop them reached for the lines or a bridle and was knocked down and run over. Just before getting off the truck he said, “Let’s stop them wild mules before they get into these kids.” When he grabbed at the team there were children around there, some going north and some east. “There was a bunch of children standing there, right there near the place where these mules was caught, where Smith caught the mules, where he tried to catch them, and some of them were in the street and they were dazed and did not know which way to go, and finally they did come across and some stood on that side and some on this side, on the west side of Topeka and on the east side of Topeka. I mean by that, some had already made it across and some were trying to get across and went back.” Asked if the team was then running away from the school children a. witness answered: “No, it was running at them, but all the truck done to the mules it kind of turned them.” In a somewhat similar situation it has been said: •
“The same rule must be applied where the injury likely to be inflicted will be serious, even though it does not clearly appear that death would necessarily result. ... In the present case the deceased left the blacksmith Shop and attempted to stop the horse. It does not appear that any extreme danger to his own person was apparent in what he did. The emergency requiring action was sudden and there was little opportunity for deliberation. It does not appear that when he caught the rein he ran risk of serious injury, and it was only when he pulled on the line which he secured that .the horse swerved and he was brought in contact with the truck. It certainly would not be permissible under such conditions for the court to characterize the act as rash and reckless, or such an act as would not be done by a person reasonably prudent. On the contrary, we think that, measuring all he did as disclosed by the evidence and surrounding circumstances, the jury were right in concluding that he was guilty of no negligence, but did what a reasonably prudent man would have done under the same circumstances, and it is fair to say it might safely be done without injury to the person many times. It was not a case where nice distinctions could be made as to the position of the truck, the speed of the horse, and the danger which confronted, unless he was stopped.” (Manthey v. Rauenbuehler, 75 N. Y. Supp. 714, 716.)
A runaway team drawing a heavy wagon through a busy street over which people are walking and along and across which automobiles are being driven is reasonably to be regarded as a menace to human life and limb. There was direct evidence that the decedent began his active exertions while the school children at the corner of the street were in actual peril. Assuming that before the accident to himself the truck had interposed a barrier between them and the danger, it would be an unjustifiable refinement to hold him guilty of contributory negligence because he did not discover this fact and desist from further effort to stop the team.
In a recent elaborate note on the general subject (where the runaway cases are grouped on pages 28 to 30) the conditions under which one may voluntarily risk his life without being guilty of negligence as a matter of law are thus stated:
“The rule is well settled that one who sees a person in imminent and serious peril through the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life, or serious injury, in attempting to effect a rescue, provided the attempt is not recklessly or rashly made. . . .
“In order to justify one in risking his life or serious injury in rescuing another person from danger, the danger threatened to the latter must be imminent and real and not merely imaginary or speculative.” (19 A. L. R. 5, 10.)
The defendant urges that there is no evidence of anyone having been in imminent peril from the runaway. We regard it as a fair question for the jury whether under the showing already outlined there was not real and imminent danger that unless the mules were stopped some one would be seriously hurt or killed. The word imminent carries the idea of closeness in point of time, but does not necessarily imply the absence of any interval whatever. There is some latitude in its application according to the situation presented. An armed invasion may be spoken of as imminent although its consummation must be a matter of days. In a salvage case, the question being as to the character of the peril in which a rescued steamship had been, it was said:
“The word ‘imminent,’ it is insisted,- conveys usually some idea of ‘immediate’ — of something to happen ‘upon the instant.’ But concede this to be so, in a general sense, yet it does not mean an instant consummation.” (The Queen of the Pacific, 25 Fed. 610, 612. See, also, 31 C. J. 251.)
2. Several instructions were given to the effect that the plaintiff could not recover unless some person or persons had been in imminent danger from the runaway. In another instruction the jury were told in substance that the decedent was not negligent if it appeared to him that lives were in danger. The defendant contends that the latter instruction was inconsistent with the others and was erroneous. It may fairly be presumed that the jury did not regard this instruction as doing away with the burden resting on the plaintiff, repeatedly pointed out elsewhere in the charge, of prov ing that some one had actually been in imminent danger, but rather as adding to that burden another — that of showing the decedent to have been cognizant of the fact. That the jury took this view appears from their having found specifically that such danger was imminent and that the decedent had good reason to believe in its existence. These findings show that no prejudice could have resulted from the instruction complained of. Findings were also made that the team had not gone fifty or seventy-five feet north of Waterman street when the decedent caught hold of them or the harness; that there were then persons (“men [orman] and children”) on Topeka avenue ahead of the team at various places in the first and second block; that school children near the intersection of Waterman and Topeka streets were in imminent danger at the time of the injury to the decedent; that the team had b$en slowed to approximately four miles an hour; that the decedent did not have time to deliberate before attempting to stop the team. Some of these findings are made the basis of criticism, but we do not regard any of them as without support in the evidence or as inconsistent with the judgment. If the words used by the jury in the finding above placed in parenthesis were “man and children” the form was doubtless suggested by that of the question as prepared by the defendant, “ . . . State who such person or persons were (whether man, woman or child) ?”
Complaint is made of a refusal to discharge the panel because the plaintiff’s attorney asked a juryman on his voir dire if he was interested in any accident insurance company or carried accident insurance. So far as shown the situation was one in which the ruling of the trial court is final. (Howard v. Motor Co., 106 Kan. 775, 190 Pac. 11.)
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The opinion of the court was delivered by
Bxjrch, J.:
The appeal brings up for review a judgment setting aside a personal judgment previously rendered in favor of plaintiff and against defendant.
The bank sued Sesler on a promissory note, attached his homestead, and made service upon him by publication as a nonresident of the state. At the time Sesler and his wife were in California. Mrs. Sesler returned to Kansas, and filed a motion on her own behalf to discharge the attachment. In support of her motion, she filed two affidavits of her husband, made at her request, pertaining solely to the homestead character of the attached property. The motion was sustained, and the attachment was dissolved. Sesler was still in California, no one professed to appear for him, and he was not in fact present during any of the proceedings or represented by anybody. The bank filed a motion for personal judgment against Sesler, and personal judgment was rendered against him by default, for the amount of the note and interest. The journal entry recited that, after hearing the evidence introduced in support of the motion, the court found the defendant had entered a general appearance in the action. Afterwards Sesler moved to set the judgment aside, ón the ground it was void for want of jurisdiction. After a hearing the motion was sustained, and the judgment was set aside. At the hearing the attorney who took the default judgment could specify no evidence introduced in support of his motion for personal judgment except the papers in the case, and want of jurisdiction to enter the personal judgment was established, unless the fact that defendant made the two affidavits referred to, at his wife’s request, for her use in her effort to procure dissolution of the attachment, constituted a general appearance.
An examination of the authorities relied on by plaintiff will help to make it clear that Sesler entered no appearance in the action. In the case of Ames v. Freeman, 83 Kan. 585, 112 Pac. 160, the defendant, who had been served with void process, went to court on the day of trial and, understanding the nature of the proceeding, denied plaintiff’s claim, submitted to examination as a witness by plaintiff, and so participated in what occurred that it was not possible to say he was not appearing generally. In the case of Woodhouse v. Land & Cattle Co., 91 Kan. 823, 139 Pac. 356, a defendant against whom judgment had' been rendered procured a stay of execution. The court said he could not apply for and receive benefit of an exercise of the court’s general jurisdiction, and then deny submission to such jurisdiction. Plaintiff stresses the word “receive.” As the word was used, it meant receive as the result of application for the benefit. In the case of Manufacturing Co. v. Hayes, 97 Kan. 740, 156 Pac. 735, it was said that a person who presents himself as a witness in obedience to a subpoena does not thereby enter an appearance as a litigant. Plaintiff argues that, if the person named as defendant should furnish testimony without service of a subpoena, he would thereby enter appearance as a litigant. The argument is unsound as applied to facts of the present case. Sesler did not appear in court, he did not tender evidence to the court, and his affidavits were presented to the court by an intervener, acting in her own behalf, for protection of her own interest. In 4 C. J. at page 1333, it is said that any writing filed with the papers in a case, not going to jurisdiction, which asks or consents to action by the court' in the cause, constitutes a general appearance. The context shows that action on the part of the defendant was referred to. In this instance the defendant filed no writing of any kind with the papers of the case.
A personal judgment may not be rendered against a defendant unless he has been personally served with summons, or unless he has entered a general appearance in the cause. In this instance neither condition to validate exercise of jurisdiction existed, and the personal judgment against Sesler was void.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit on a note for $1,000 and to foreclose a mortgage on real estate given to secure the note. The petition contained the usual allegations, among them, that the note and mortgage were made to Pettyjohn & Co., that before maturity and for value Pettyjohn & Co. sold the same to plaintiff, indorsed the note and assigned the mortgage in writing, which assignment was duly recorded. The answer did not controvert the execution of the note and mortgage and their indorsement and assignment to plaintiff, but pleaded payment and averred that Pettyjohn & Co. was agent of plaintiff to receive such payment, and further that plaintiff had, by á course of conduct which was set out, held Pettyjohn & Co. out as his agent and was thereby estopped to deny the same. The alleged agency and acts constituting estoppel were denied in a verified reply. When the case came on for trial the court properly held that the burden of proof was upon the defendants, and they introduced their evidence and rested. The plaintiff demurred to defendants’ evidence. The court sustained the demurrer and rendered judgment for plaintiff. This was on September 15, 1922, at the September term of the court. No appeal has been taken from that judgment. On the next day the defendants filed a motion for a new trial upon all the statutory grounds. This motion was not ruled upon until May 3, 1923, when it was sustained generally. At that‘time, the September, 1922, term of court had expired, the January, 1923, term had convened and expired, and the May, 1923, term had convened (R. S. 20-1010).
The plaintiff appealed from the judgment and order of the court of May 3, 1923, sustaining defendants’ motion for a new trial, and contends that the court had no jurisdiction at that time to sustain the motion. It is argued, that a demurrer to evidence does not raise a question of fact, but a question of law only; that when such a demurrer is sustained and judgment rendered a motion for a new trial is neither necessary nor proper; that the right of the defeated party is by appeal, and that the filing of a motion for a new trial by the defeated party does not give the court jurisdiction at a subsequent term of court to set aside the order sustaining the demurrer to the evidence and the judgment rendered thereon. This argument is well taken and. is determinative of this appeal.
In passing upon a demurrer to the evidence the court does not weigh the evidence, but determines as a question of law whether the evidence, considered in the aspect most favorable to the party offering it — and this is, of course, upon whom is the burden of proof, whether that be the plaintiff or the defendant — is sufficient to support a verdict or judgment. (Wagner v. Railway Co., 73 Kan. 283, syl. ¶ 2; 85 Pac. 299; White v. Railway Co., 74 Kan. 778, syl ¶ 2, 88 Pac. 54; Sheets v. Henderson, 77 Kan. 761, 93 Pac. 577; Van Tuyl v. Morrow, 77 Kan. 849, 92 Pac. 303; Sarbach v. Deposit Co., 87 Kan. 774, 125 Pac. 63; Moore v. Annuity Association, 93 Kan. 398, 404, 148 Pac. 981; Sheahan v. Kansas City, 102 Kan. 252, syl. ¶ 1, 169 Pac. 957; Sampson v. Vanderwilt, 103 Kan. 199, 173 Pac. 297.)
It is the same kind of a question of law that arises upon a demurrer to a pleading, upon a motion for judgment upon the pleadings, or upon a motion for judgment upon the pleadings and the opening statement of counsel. (Slimmer v. Rice, 99 Kan. 99, 160 Pac. 984; Berggren v. Johnson, 105 Kan. 501, 504, 185 Pac. 291.) The same ruling applies when the facts are agreed to (Nichols v. Trueman, 80 Kan. 89, 101 Pac. 633), or are not disputed (Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251). In none of these instances is a motion for a new trial either necessary or proper. The remedy of the defeated party is by appeal.
Perhaps it is illogical not to apply the same rule to an instructed verdict (Darling v. Railway Co., 76 Kan. 893, 903, 93 Pac. 612), but that holding was upon an interpretation of the statute to the effect that an instructed verdict is nevertheless a verdict. But we do not have a directed verdict in this case.
A ruling on the demurrer to the evidence is an appealable order. (R. S. 60-3302.) Alleged error in a ruling üpon a demurrer to the evidence is not available on an appeal taken only from a ruling upon a motion for a new trial. (Ball v. Collins, 100 Kan. 448, 165 Pac. 273.)
The district court, being a court of general jurisdiction, retains such control of its judgments during the term at which they are rendered as to be able to set them aside or modify them upon motion by a party to the action, and in some instances upon its own motion, for good cause shown or in the furtherance of justice.
In 34 C. J. 207, the rule is thus stated:
“A court has full control over its orders or judgments during the term at which they are made, and may, upon sufficient cause shown, in the exercise of its sound discretion, amend, correct, revise, supplement, open, or vacate such judgments. This was the rule at common law, and it prevails in almost all jurisdictions.” See, also, Karr v. Moffett, 105 Kan. 692, 694, 185 Pac. 890; Beachy v. Jones, 108 Kan. 236, syl. ¶ 4, 195 Pac. 184.
But this power does not extend beyond the term of the court at which the. judgment-sought to be set aside was rendered. Such power as the court has to set aside or modify judgments after the term in which' they 'are rendered must be found in the statutes.
In 34 C. J. 210, 215,'it‘is said:
“At common law, and in the absence of statute changing the rule, jurisdiction over the cause ceases -with the expiration of the term at which final judgment was rendered, and thereafter the court has no power to correct or amend the judgment. . . . The only remedy after the term for irregular and erroneous, as distinguished from void, judgments is usually by new trial, review, writ of error, or appeal, as either may be appropriate and allowable by law, or by some other mode specially provided by statute.” (See, also, Johnson v. Jones, 58 Kan. 745, 51 Pac. 224; In re Beck, 63 Kan. 57, 60, 64 Pac. 971; Chapman v. Irrigation Co., 75 Kan. 765, 90 Pac. 284; Lewis v. Woodrum, 76 Kan. 384, syl. ¶ 3, 92 Pac. 306; Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073; Welling v. Welling, 100 Kan. 139, 163 Pac. 635; Mulcahy v. City of Moline, 101 Kan. 532, 171 Pac. 597.)
From what has been said it necessarily follows that the court had no power or authority to sustain the motion for a new trial at the May, 1923, term. This makes it unnecessary to consider other questions argued by counsel, as no conclusions we might reach concerning them would be of any force. The case will be reversed, with directions to the court below to set aside the order granting a new trial and to dismiss the motion therefor. | [
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The decision of the court was announced .by
Hopkins, J.:
On application a rehearing was granted. Additional briefs were filed, and the case again submitted. After a further and careful consideration of the whole case, the court is of the opinion that the original judgment and opinion of affirmance should be adhered to.
It is accordingly so ordered.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a foreign corporation for a balance claimed to be due it from citizens of this state for the sale of merchandise under a contract. The defendants appeared specially, objected to the jurisdiction of the court, and moved to set aside the summons served upon them for the reason that plaintiff is a foreign corporation, doing business in this state within the meaning of R. S. 17-506, and had never made application for, nor received authority from, the charter board to do'business in this state. The court sustained this motion, and the plaintiff has appealed.
The contract between the parties, upon, which the action was based, and in accordance with which their business was conducted, is as follows:
“This Agreement, Made at Winona, Minn., U. S. A., this 1st day of December, a. d. 1920, between The J. R. Watkins Company, a Minnesota corporation, hereinafter called the company, party of the first part, and Morgan D. Waldo, McPherson, Kan., party of the second part,
“Witnesseth, That for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the party of the second part, the company promises and agrees to sell and deliver to the party of the second part free on board cars at Winona, Minn., or at its option at any of its regular places of shipment, any and all goods and other articles manufactured or sold, or which may hereafter be manufactured or sold by it, unless prevented by fire, insurrection, invasion, strikes, or other cause, at the usual customary wholesale prices, as the party of the second part-may reasonably require for sale from time to time, from the date hereof, until the first day of March, 1922, as hereinafter provided, in the following described territory, except the incorporated municipalities therein located, to wit:
In the state of Kansas, in McPherson county, except the north tier of townships, the townships of Battle Hill, Delmore and New Gottland, in the second tier from the north and the north half of the townships of McPherson, Empire” and Canton, in the third tier from the north, and in consideration thereof the party of the second part promises and agrees as soon as practicable after said goods and other articles are received, to make a thorough and personal canvass of said territory at least four times a year, at his own cost and expense, and to provide a proper outfit therefore, and to sell said goods or so much thereof as possible, and at all times during said term said party of the second part agrees to keep a complete record of all goods disposed of by him, and on hand, to make to said company complete regular weekly written reports of the sale and collections, which reports, however, or any of them, may be waived by said company, and also to report the goods on hand and outstanding accounts when requested by said company so to do.
“And the party of the second part promises and agrees to pay to said company at Winona, Minn., the wholesale prices aforesaid for the goods and other articles sold to him from time to time, as herein provided, and the prepaid freight and express thereon, if any, during said term, at the time and in the manner and in accordance with the provisions of the weekly report blanks of said company to be furnished to the party of the second part, and a.t the termination of this agreement to pay the whole amount therefore then remaining unpaid; or in cash, with the understanding that said Company will allow a discount of three per cent from said wholesale prices on all goods paid for on or before the 15th of each month, provided, full payment for all. goods furnished prior to the first of the month next preceding such payment, and the indebtedness now due, shall then have been made; but such payments, or any of them, may be waived or extended by the said company without notice to the sureties hereon, and without prejudice to the rights or interests of said company, and if the party of the second part shall not pay cash for said goods and other articles so sold and delivered to him, and the payment at the time and in the -manner and in accordance with said weekly report blanks, as aforesaid, are insufficient to pay therefore, or if the party of the second part shall fail to pay on the indebtedness now due, from time to time during said term, amounts satisfactory to said company, said company may in its discretion, thereafter either limit the sale herein agreed to be made, or discontinue the same until such indebtedness is paid or reduced as said company may require; and at. the termination of this agreement the party of the second part agrees to return-by prepaid freight to said company at Winona, Minn., or other point at which the same were delivered, in as good condition as when delivered to him, f. o. b. cars, all of the said goods undisposed of by him, and the company agrees to receive such goods if the same are in such condition when received at Winona, Minn., or other point at which they were delivered to the party of the second part, f. o. b. cars, and pay or credit the party of the second part therefore, at'the same prices at which the same were sold and delivered; and if not in such condition when so received the company shall make a reasonable charge for putting them in such condition, if that can reasonably be done, and deduct such charge from the amount of the goods so returned, and pay or credit the party of the second part with the balance thereof, but no goods left by said party with his customer's, on time or trial, not paid for by them, or by them partially used and then returned to him, shall be returned to said company, or be paid for by it, or credited to the account of said second part}''.
“And it is mutually agreed between the parties hereto that the party of the second part shall pay all transportation charges on goods he so purchases and all expenses and obligations incurred in connection with the canvass and sale of said goods, and shall have no power or authority to make any statement or representation or incur any debt, obligation or liability of any kind whatsoever, in the name of, or for, or on account of said company, and that said company shall in no way contribute to the expense of, nor share in the profits or losses on the sales of said goods by said second party; nor have any interest in the accounts due for goods sold by the said second party and no printed, advertising or other matter of said company, sent to or distributed by said second party shall be construed to change or modify the terms of this agreement; and that this is the complete, entire and only agreement between the said parties, and that it shall not be varied, changed or modified in any respect except in writing executed by the parties hereto. The party of the second part hereby promises to pay said company at Winona, Minn., from time to time during the term of this agreement, in amounts satisfactory to said company, the indebtedness now due for goods and other articles heretofore sold and delivered to him as vendee, and at the expiration or termination of this agreement, agrees to pay any balance thereof then remaining unpaid, payment of which indebtedness is hereby so extended.
“The parties hereto, for the purpose of settling and determining the amount now due, hereby mutually agree that the said indebtedness now due said company is the sum of nineteen himdred eighty-seven and ninety-four one hundredths dollars, which sum the second party agrees to pay, and payment of which is extended as above provided. And it is further mutually agreed that either of the parties hereto may terminate this agreement at any time by giving the other party notice thereof in writing by mail and any indebtedness then owing from said second party to said company shall thereupon be and become immediately due and payable.
“In witness whereof, the party of the first part has caused these presents to be executed in its corporate name by its proper officer, and the said party of the second part has hereunto set his hand the day and year first above written.”
This was signed by plaintiff and by the defendant M. D. Waldo, and the payment of the amount then owing and of any additional sum that might become due on account of sales of merchandise by plaintiff to Waldo under the contract was guaranteed in writing by the defendants L. B. Register, O. F. Wiard and Anna Waller.
Upon the hearing of the motion Waldo was called as a witness for defendants and was asked: “Q. In what capacity did you sell that medicine; as agent or otherwise? A. As agent.” He further testified that the contract above set out was the only contract or agreement he had with plaintiff, and that all of his business with plaintiff had been transacted under and by virtue of that contract. In deciding the motions the court found (a) that plaintiff is a foreign corporation, (b) that it had not been authorized to do business in Kansas’, and (c) that it is doing business in this state within the meaning of R. S. 17-506, which reads:
“Every corporation organized under the laws of another state, territory or foreign country that has an office or place of business within this state, or a distributing point herein, or that delivers its wares or products to resident agents for sale, delivery, or distribution, shall be held to be doing business in this state within the meaning of this act.”
On behalf of appellant it is argued that the contract between plaintiff and Waldo is a contract for the sale of merchandise manu factored by or for it, f. o. b. cars at Winona, Minn., or other place of manufacture outside of the state of Kansas; that the relation between the parties established by the contract was that of vendor and vendee, and that all the business it transacted with Waldo was interstate commerce. On behalf of appellee it is contended that the contract between plaintiff and Waldo created the relation of principal and agent, that Waldo was the agent of plaintiff for the sale of merchandise manufactured by or for it, and since Waldo was a resident of this state and sold the merchandise in this state, the plaintiff was doing business in this state, within the meaning of R. S. 17-506; and further contend that the trial court upon parol evidence made a finding that plaintiff by having a resident agent was doing business in this state within the meaning of the statute, and under a long line of decisions of this court such a finding will not be set aside on appeal.
Let us first examine the contract between the parties in respect to the contentions of appellant. Though perhaps not controlling on the question, it will be noted that wherever the contract speaks specifically of the relations between the parties it denominates such relation as that of vendor and vendee, or words of equivalent meaning; nowhere in the contract is the relation of principal and agent, or of partnership, specifically mentioned as being created, or as existing. By the contract appellant “agrees to sell” and deliver to Waldo, f. o. b. cars “at Winona” its merchandise “at the usual customary wholesale prices” as Waldo might order for resale in a prescribed territory. Waldo agreed to canvass such territory and to sell so much of the merchandise as possible, and make weekly reports to appellant. He further agreed to pay appellant the wholesale price of the merchandise so sold to , him from time to time, to pay the freight or express on the merchandise from the place of shipment, and at the termination of the contract to pay any sum remaining unpaid. In the event Waldo had merchandise on hand, which he had not sold at the termination of the coiitract; Waldo agreed to return the same to appellant, who agreed to receive it and pay Waldo for the same at wholesale price in cash, or by crediting his account.
Appellant had no share in the profits or losses of merchandise sold by Waldo, had nothing to say as to whether Waldo sold for cash or on credit, and if he did sell on credit appellant had no title to or interest in the accounts or notes for such sales. So an examination of the contract between the parties forces us to the conclusion that the relation established between the parties by virtue of it is that of seller and buyer, and not that of principal and agent.
The conclusion we have reached is in accord with the following decisions of courts of other states construing contracts identical with the one here considered: J. R. Watkins Med. Co. v. Hogue, 138 Ark. 105; Hogg et al. v. J. R. Watkins Medical Co., 228 S. W. 730 [Ark.]; Medical Co. v. Holloway, 182 Mo. App. 140; Watkins Medical Co. v. Hunt, 104 Neb. 266; J. R. Watkins Medical Co. v. Coombes, 66 Okla. 126.
And the following decisions construing contracts of other corporations similar to the one here considered: W. T. Rawleigh Co. v. Van Duyn, 32 Idaho, 767; The W. T. Rawleigh Co. v. Trerice, 224 Mich. 420; Saginaw Medicine Co. v. Dykes, et al., 210 Mo. App. 399; McConnon & Co. v. Haskins, 180 S. W. 21 [Mo.]; Dr. Koch Vegetable Tea Co. v. Shumann et al., 42 Okla. 60; Dr. Koch Vegetable Tea Co. v. Malone, 163 S. W. 662 [Texas]. See also, Hessig v. Sly, 83 Kan. 60, 109 Pac. 770.
Appellees call our attention to Brewing Association v. Nipp, 6 Kan. App. 731, but there the contract provided for the sale f. o. b. Wichita, and it was held to be a sale within this state. There is nothing in this case contrary to the conclusion above reached.
Passing now to the argument of appellees: That Waldo testified that he was representing the appellant as agent and that the court made a finding, based upon the testimony of Waldo, to the effect that appellant was doing business through an agent in this state, which finding is binding upon this court. Waldo also testified that he had no contract or agreement with appellant other than the written contract above set out, and that all the business he had with appellant was in accordance with that contract; hence, his testimony that he represented appellant in the capacity of an agent is a mere conclusion. He could not vary the terms of his written contract by his parol testimony.
It is true this court has held in many cases that a finding of a trial court based upon conflicting evidence, or having some substantial evidence to support it, is binding on this court and will not be disturbed. But it is also true that this court has held in many cases that a finding of a trial court which is not based upon any substantial evidence will not support a judgment based thereon. That is the situation here. It necessarily follows that the judgment of the trial court must be reversed with directions to overrule the motions of defendants. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an original proceeding wherein the plaintiff, a graded-school district of Sherman county, seeks a writ of mandamus directing the county clerk to spread its tax levy over certain lands and property attached to it by order of the county superintendent. The county treasurer is made a party by reason of his official concern with the controversy. School district No. 64 is made defendant because of its claim to the territory under an order of the board of county commissioners and because it-s revenues will be materially affected by the result.
It appears that for some years past, until the early autumn of this year, there- has existed at or near the village of Edson, in Sherman county, a consolidated school district designated as union school district No. 2, in which has been maintained an approved high-school course of two years. There has also existed nearby a common-school district, No. 21, but which for five years last past has not maintained a public school. Adjacent to union school No. 2 and common-school district No. 21 there also exists the defendant school district No. 64, which maintains a common public school.
On August 7,1924, the county superintendent disorganized school district 21 for its long-continued failure to maintain a school, and that officer attached most of its territory, about eight sections of land, to union district No. 2, and the remainder, about three sections, to defendant district No'. 64. On August 14 the county superintendent notified the county clerk of these proceedings, so that the school tax levies pertaining to union school No. 2 could be spread on the territory affected and in conformity therewith.
On the assumption that the board of county commissioners had power to review these proceedings, an appeal was taken from the action of the county superintendent, and the county board set aside the superintendent’s order, and in lieu thereof made an order whereby all the territory of defunct school district No. 21 was attached to school district No. 64. Pursuant to the order of the county board, the county clerk spread the levies of school district No. 64 over the whole of the territory of defunct district No. 21.
Hence this lawsuit. The pleadings recite the foregoing and other incidental facts, which so far as pertinent will be noted.
The statute directing the disorganization of a school district which has failed for three or more years to maintain a school reads as follows:
“Whenever any school district shall have failed or neglected to maintain a school for at least seven months in each year for a period of three successive years, such school district shall be disorganized by the county superintendent of public instruction and the territory thereof shall be attached to adjoining districts, as may be determined by the county superintendent: Provided, That this act shall not apply to any school district which shall have made provisions according to law for sending its pupils to other schools and for the payment of adequate transportation and tuition, unless such district shall be adjacent to a school district maintaining a graded school in which is offered an approved high-school course of at least two years. Whenever any school district adja cent to a district maintaining a graded school in which is offered an approved high-school course of at least two years shall have failed or neglected to maintain a school for at least seven months in each year for a period of tljree consecutive years, said adjacent district shall be disorganized by the county superintendent of public instruction, and the territory thereof shall be attached to the district maintaining such graded school in which is offered an approved high-school course of at least two years, or to adjoining districts, in the discretion of the county superintendent: Provided further, That where any such district is adjacent to a city of the third class in which there is maintained a high school or graded school, it shall be attached to the school district in which such city is located.” (R. S. 72-818.)
It will be noted that when the facts exist which warrant the disorganization of a school district, the county superintendent’s duty is clear and imperative. Such district shall be disorganized, and “the territory thereof shall be attached to the district maintaining such graded school in which is offered an approved high-school course of at least two years, or to adjoining districts, in the discretion of the county superintendent.” If the adjacent graded-school district maintains the specified minimum high-school course, it is apparently the legislative intention that it should be preferred; if such graded district contains a third-class city, the statute is imperative; it must be so attached. This statute gives no hint of an appeal to the board of county commissioners; and while there are other statutes (R. S. 72-213, 72-214, 72-Í309) giving an appeal from the action of the county superintendent in the matter of the formation or alteration of a school district, and likewise from that officer’s refusal to form or alter a school district, such appeal does not cover the matter under consideration. The conditions under which a school district is to be disorganized are defined by the statute, and when they exist the statute is to be executed and it is to be followed. Furthermore, the full significance of the text providing for the disposition of the territory of a disorganized district, “in the discretion of the county superintendent,” may be appreciated by taking note of the fact that the statute is a revision and amendment of an earlier one having its inception in Laws of 1909, chapter 206, in which it was provided that such disorganized district should be annexed to adjoining districts by the county superintendent “in such a manner as to equalize as nearly as practicable the territory in area and taxable property.” (Gen. Stat. 1915, §§ 8948, 8949.) That statute received some elaboration and amendment in Laws of 1917, chapter 275, but was not materially changed in the matter of present concern. In 1921, however, the statute was amended so as to provide, among other details, that a school district which shall have failed to maintain a school for a defined minimum term for two successive years, etc., “shall be disorganized by the county superintendent of public instruction, in conjunction with the county commissioners, and the territory thereof shall be- attached to adjoining districts, as may be determined by the county superintendent.” And in the same statute it is further provided:
“Whenever any school district adjacent to a district maintaining a graded school in which is offered an approved high-school course of at least two years shall fail or neglect to maintain a school for at least seven months in each year for a period of two consecutive years, said adjacent district shall be disorganized by the county superintendent of public instruction, in conjunction with county commissioners,- and the territory thereof shall be attached to the district maintaining such graded school in which is offered an approved high-school course of at least two years, or to adjoining districts, in the'discretion of the county superintendent.” (Laws 1921, ch. 228, §1.)
Recurring now to the present statute, first quoted above, it will be seen that in the last legislative revision of the act all reference to the county commissioners was stricken from the text and the county board was relieved of any official concern with the disposition of disorganized school-district territory. To summarize: the law as first written vested the matter in the discretion of the superintendent; later the statute required cooperative action between superintendent and county commissioners, and still later, and presently, the county board are relieved of all concern therewith.
In view of the foregoing, the action of the county commissioners in setting aside the order of the county superintendent and in attaching the territory of the defunct district to school district No. 64 was null and void; and, so too, are the tax levies extended by the county clerk pursuant thereto. Such tax levies must be expunged and the levies of union school district No. 2 spread on the tax rolls of the lands and property heretofore located in the defunct district in conformity with the notice given by the county superintendent to the county clerk on August 14, 1924, unless there is some infirmity in the action and order of the county superintendent based upon what the defendants have chosen to characterize as “abuse of discretion.”
As this cause has been submitted on plaintiff’s motion for judgment on the pleadings, we will have to assume, without evidence, that defendants’ allegations touching the superintendent’s “abuse of discretion” are true.
What are those allegations?
It is alleged that school district No. 64 recently lost its schoolhouse by a tornado, and that the school board had failed to keep the schoolhouse insured against such contingency, and that the district had no funds to rebuild, and that the district board desired to use the unused school house of district No. 21 but the county superintendent refused to give her permission for such use of the property. This was no abuse of discretion. The superintendent had no power to do as the defendant district board desired. The disposition of school property of a disorganized district is governed by statute. It must be sold to the highest bidder for cash after thirty days’ notice. (R. S. 72-813.) The defendant district might have bid for the schoolhouse of school district No. 21 at such sale, under express authority of the statute.
It is also alleged that the school board of district No. 64 obtained permission from the district board of defunct district No. 21 to use the schoolhouse, and that some expense was incurred for repairs of the building. The disorganization of school district No. 21 under the mandate of the statute automatically terminated the official powers of the officers of school district No. 21. The statute directing the sale of the schoolhouse could not be interrupted by the unauthorized act of its ex-school board. This incident does not disclose any evidence of abuse of discretion on' the part of the county superintendent.
Neither is abuse of discretion shown on the incident relating to the employment of a school teacher for district No. 64. It would be absurd to say to the county superintendent: “Because you encouraged the teacher employed by school district No. 64 to breach her contract, we must hold that you abused your discretion in the extraneous and scarcely related matter of attaching the major portion of defunct school district No. 21 to union school district No. 2.”
In the oral argument it was also urged that the county superintendent had been largely influenced in her official action by some person who was personally greatly interested in the disposition of the territory of the defunct district. There is always some master spirit in every community who assumes the initiative in getting things done, whether it be to get official action on matters of public concern or otherwise. Such persons have natural traits of leadership, and it is not uncommonly said that they lead public officers by the nose. But that is merely a free-and-easy way of talking, and not always 'nor generally just or correct. That such a charge is wholly gratuitous in this case is demonstrable by the result of the county superintendent’s action. Whereas the statute seems fairly to indicate that all the territory of defunct school district No. 21 might have been and preferably should have been attached to the plaintiff district, the county superintendent — by a debatable stretch of her lawful authority, of her discretion- — attached a substantial part of it to the defendant district. Whether she had such power or not, it precludes every probability of abuse of discretion.
Counsel for defendants have been somewhat insistent that this action should be protracted into a case where evidence in extenso might be aired at length. Perhaps the situation presented could be made to furnish the basis for an old-fashioned school-district row, where the welfare of the educational interests of the communities affected might be subordinated to the litigious disposition of parties interested. The court would only yield to such an unfortunate consequence if the issues as framed would not permit us to avert it. It can be avoided, however, by holding, as we unhesitatingly do, that conceding the truth of all that is pleaded by defendants, no abuse of discretion which would vitiate the action of the county superintendent is made to appear.
It follows that the writ of mandamus, as prayed for by plaintiff, must be allowed, directing the county clerk to expunge the tax levy of school district No. 64 from that portion of the territory and property of defunct school district No. 21 attached by the superintendent to union school district No. 2, and to extend thereon the lawful tax levies of union school district No. 2, and that the county treasurer govern his official conduct pertaining thereto in accordance herewith.
Writ allowed. | [
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The opinion of the court was delivered by
Johnston, C. J.;
George Brecheisen, a restaurant keeper of Chetopa, was charged with having intoxicating liquors in his possession and also maintaining a liquor nuisance. The testimony as to the nuisance was held to be insufficient to warrant a conviction, but the defendant was found guilty of having unlawful possession of intoxicating liquors. From a judgment of conviction he appeals.
It is first urged that the evidence is insufficient to support the verdict' rendered. There was found in his room in the restaurant a bottle containing whisky and also three bottles of wine. The label on the whisky bottle was “Sunnybrook.” A witness testified that shortly before the defendant had offered him a drink from a bottle labeled “Sunnybrook,” but it should be said that defendant told the witness the whisky belonged to men downstáirs. It is insisted that the witnesses who testified against him were prejudiced and unworthy of belief, and some reasons were advanced to sustain the contention. All matters as to the credibility of witnesses, including their bias and prejudice, if any, and also as to the truth and weight of their testimony, have been determined by the jury under instructions given by the trial judge. There is testimony in the record which was accepted by the trier of the facts and which we must accept here as credible that abundantly upholds the conviction.
Error is assigned upon the ruling excluding offered testimony to the effect that after the prosecution had been instituted and defendant had subpoenaed his witnesses, the county attorney held an inquisition and called some of defendant’s witnesses before him and compelled them to testify. In the offer made there was no statement as to the testimony given at the inquisition nor anything to show that the proceedings in the inquisition could have affected the testimony of the witnesses at the trial of this case. The action may be unusual, as defendant contends, but the statute makes it the duty of the county attorney to hold inquisitions where he is notified or gains knowledge of the violation of the law relating to intoxicating liquors and some other offenses. He is then empowered to subpoena any witness he. has reason to believe has knowledge concerning the offenses under inquiry. (R. S., 62-301.) The county attorney may have had information that defendant had committed other offenses than the one charged in the pending prosecution, but whether he did or not he was only exercising the authority that the statute confers, and we have no right to assume that he was not acting in good faith or that he was abusing legal process.
Complaint is made of remarks made by the county attorney in his closing argument to the jury. Apparently in response to something that had been said in behalf of the defendant, the county attorney stated in effect, as the defendant’s affidavit shows, that the defendant with his good looks could easily- have secured an acquittal if he had offered the testimony of the citizens of Chetopa showing that he was a peaceable and law-abiding citizen, and the fact that he did not produce such witnesses showed that he was not a peaceable and law-abiding citizen. Since the motion for a new trial was overruled and judgment rendered, affidavits have been presented by the prosecution purporting to show the expressions actually used in the argument, and also an explanation that they were made in reply to a statement of defendant’s counsel. These affidavits, however, were not presented to nor considered by the trial court, form no part of the record here, and hence cannot be considered on this appeal.
In explanation of the omission to make the showing on the motion for a new trial counsel say that, thinking only of the motion for a new trial and giving no thought to the matter of appeal, he relied on the fact that the trial judge was familiar with what had occurred before him and hence no- counter affidavits on the motion were produced. When the objection was made the court without further admonition remarked to the county attorney that he had carried that argument sufficiently far, whereupon he desisted from further comment on the subject. Assuming that the statements were made as recited in defendant’s affidavit, they must be regarded as being beyond the limits of proper argument. Counsel are of course never warranted in commenting on facts outside of those in the case. The defendant has no ground to complain of that part of the statement referring to his fine personal appearance. He was not only present-in court, but testified at length in support of his defense, and his personality was in evidence. Not having put his reputation in evidence, a reference to it was not proper. However, not every departure from a proper course of argument can be regarded as a ground for reversal. A reading of the entire record leads us to the conclusion that the reference to the failure of the defendant to produce his neighbors as witnesses to testify as to his standing as a law-abiding citizen, did not operate to the prejudice of the defendant, and that the jury was not influenced by the objectionable comment of the county attorney. An improper expression in argument, which does not affect a substantial right, is not a ground for reversal. (The State v. Peterson, 102 Kan. 900, 171 Pac. 1153, and cases cited.)
There is objection to an instruction given that, “By the laws of this state- the defendant is made a competent witness in his own behalf and as such he has testified in this case. The fact that he is charged with crime is not to affect his credibility as a witness but you may take into consideration his situation and his interest in the case and all the circumstances which surround him, and give such credit to his testimony as in your judgment it is fairly entitled to.” We find no fault in the instruction.
Complaint is made that a new trial was not granted on the ground of newly discovered testimony. The so-called new testimony was not shown by the affidavits of those who it is claimed would give the testimony, and no reason was stated why the affidavits of the witnesses themselves were not produced. This should have been done. (The State v. Kellerman, 14 Kan. 135.) Besides the proposed testimony relates to a matter which appears to be quite immaterial and which could not have affected the verdict.
Judgment affirmed. | [
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The opinion of the court was delivered by
Burch, J:.
Defendant was convicted of being a persistent violator of the intoxicating-liquor law, and appeals.
The information contained two counts. The first count charged previous conviction on February 26, 1923, and unlawful possession on September 23, 1923. The second count charged previous conviction on February 26, 1923, and sale on September 23, 1923. Defendant complains of the manner in which the former conviction was proved. The record of the former conviction was introduced in evidence after it had been corrected to speak the truth. The evidence was properly received. (The State v. Parise, ante, p. —.) Besides that, in this case defendant admitted the previous conviction, and the record evidence, whether good or bad, was unimportant.
Defendant complains of the admission of testimony respecting a sale which he had made not charged in the information. No objection to the testimony was 'interposed when it was offered, and the jury was instructed with reference to the extent to which it might be considered, by an instruction which is not challenged.
Defendant complains because his request for an instruction re lating to conviction of misdemeanor only was denied. He admitted the former conviction, and if he was guilty of keeping or selling he was confessedly guilty of the felony charge. Besides that, the misdemeanor charge contained in each count of the information was not a lesser degree of the felony of persistent violation. (The State v. Parise, ante, p. 106.)
Defendant complains because he was convicted on both counts. His contention is, having liquor in his possession and 'selling it were but one “act,” for which he could receive but one punishment. Keeping intoxicating liquor is one kind of criminal conduct; selling intoxicating liquor is another and quite different kind; and each is punishable.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an award under the workmen’s compensation law to Cecilia Oresnik, a worker in the defendant’s packing plant, who suffered an injury to her hand which resulted in partial incapacity for work. She asked for compensation at $6 per week for 416 weeks, amounting to $2,496, and upon a trial was awarded $1,896.
There was no dispute as to the nature and extent of the injury, but the defendant pleaded and the testimony tended to show that after beginning the action defendant procured her to sign a release and an order of dismissal of the action upon a payment of the consideration of $600. She replied and tendered evidence to show that the release was procured by misrepresentations, undue influence and fraud, and she therefore claimed that it was without binding effect. The only point presented by the defendants against the judgment is that the plaintiff cannot impeach a release or be re lieved from its obligations upon the ground of false and fraudulent statements which she did not believe and by which she was not deceived. It is contended that some of her answers given on cross-examination showed that she did not rely on the statements which she claimed were false and fraudulent. The plaintiff is a Croatian, who claimed she could not understand English, and it appears that she testified through an interpreter. After her injury and partial recovery she obtained employment at the packing plant of Armour & Company. The false representations of which there is complaint were made in three separate visits to the Armour plant, and appear to have been made with the cooperation of the representatives and agents of the Armours, and through the urge and influence of both of them she was induced,to sign the release. According to her testimony they represented to her that under the compensation law which they professed to find in a book, no more than $500 or $600 could be allowed, and that if she prosecuted her action against the defendant she would lose her job at the Armour plant and would be barred from employment at all other packing houses. She testified that she was scared by the threat of the loss of her job, so that she did not know in fact what she was doing when she accepted a personal check of $600 and signed the papers presented. It appears the papers were read to her, but not in her own language. In the course of a cross-examination she said that before a settlement was made she said in reply to a question that she knew she could get more than $600 by going through the lawsuit, and believed that she could. At another stage of the trial she said that when she cashed the check she intended to sue, and when asked if she had in mind at the time she settled that she would try to get more if she could, she answered that she thought she ought to get more; and again when asked if when she cashed the check she intended to get more if she could, she said she thought she could. In answer to another question she said she was going to try to do so. Some of these statements carried the implication that she did not believe the representations of defendants nor rely on them when the release was executed. Her answers indicate, however, not only that she imperfectly understood the English, but also tended to show a lack of comprehension of the import of some of the questions asked through the interpreter. Her testimony, therefore, should be read with this condition in view.' The whole testimony tends to show that in the answers relied on to defeat her action she was in effect saying that she hoped to get more and believed she was entitled to more, rather than a lack of belief in the representations made to her. Then coupled with the fraudulent representations there is the improper influence or duress mentioned, which itself is a species of fraud. It appears that the plaintiff depended on work at packing houses to support herself and two children, and she was told that unless she settled with defendant and signed the prepared papers she would lose her job at Armours and would be barred from employment at all other packing houses. The parties were not upon an equal footing in the negotiations, as plaintiff was inexperienced and unfamiliar with the language employed. She was being pressed for the execution of a release, not only by the agent and attorney of the defendant, but the agent and attorney of her then employer had joined with defendants and thrown their influence with defendant to secure the release that she signed. She says that the threat and fear of the loss of employment frightened her so that she did not know what she was doing or what she had signed. There appears to be no substantial dispute as to the fraudulent misrepresentations and undue influence of which she complains, and upon the theory that fraud was established and upon a. consideration of all the circumstances shown, we are unable to say that the plaintiff is barred by the ambiguous statements made on cross-examination to the effect that she thought she could get more by a prosecution of her action.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in quo warranto challenging the validity of the organization of joint rural high-school district No. 4, Decatur and Norton counties. The district was created in the summer of 1921 and since that time it has been functioning as a legal organization. The state charged that the boundaries of the district were not clearly defined at the time it was petitioned for and that no accurate enumeration of the legal electors was taken from which it could have been clearly ascertained that two-fifths of the interested electors desired that an election for the creation of such a district should be called. Another alleged defect in the preliminary steps to create the district was that the requisite sanction of the county superintendents of Decatur and Norton counties and of the board of county commissioners of Decatur county was never given to the proposed organization.
The defendants, as members of the school district concerned, answered, justifying their assumption of official powers by pleading with pertinent details the various procedural steps by which the district was created — the presentation of a petition to the county board of Decatur county, containing the names of more than two-fifths of tire electors concerned, the delimitation of the proposed district, the approval of the county superintendents and county boards of the two counties, the election and its results, showing a majority of votes favorable to the creation of the district, and the special election called thereafter, at which the defendant officers were chosen and pursuant to which they had qualified and assumed their official powers.
Trial by the court; evidence documentary and oral was introduced on-behalf of plaintiff and defendants; findings by the court as follows :
“The pretended rural high school mentioned in plaintiff’s petition has no legal existence, that all proceedings had toward the organization of said pretended rural high-school district are void and of no effect. That the board of county commissioners of Decatur county, Kansas, had no jurisdiction to establish said rural high-school district; that there was no enumeration as provided by law in such cases and that there is no evidence whatever and no showing that there was any approval of the boundaries of 'said pretended rural high-school district by the superintendent of Norton county, Kansas, as provided by law; that the allegations of plaintiff’s petition are fully established and the defendants have no authority to act as officers of said pretended rural high-school district.”
Judgment for the state was entered pursuant to the findings; and defendants appeal, urging various errors, which are mainly concerned with the competency and probative force of the evidence and the legal consequences flowing therefrom.
Oil the question whether the proposed rural high-school district had the requisite approval of the county superintendents and county boards, there was documentary evidence that the county superintendent of Decatur county approved the creation of the district on June 6, 1921, and that prior to that date, some time in May, she had given her informal approval thereto; it was also shown that the project had been the subject of correspondence and conversation between herself and the county superintendent of Norton county and that the latter had acquiesced in the proposition. The superintendent of Norton county made certain memoranda of the action of her predecessor, Miss Wyrill, who retired from office May 9, 1921, and who had approved it, but who apparently had failed to make a record of her approval. The county superintendent of Norton county, Mrs. Newbold, testified:
“Q. He [R. W. Dole] was chairman of the board of county commissioners at the time testified about? A. Yes, sir.
“Q. This notation — ‘Mrs. Newbold: Miss Wyrill [predecessor] approved the within rural high-school district on May 9th, 1921. Please make a record to that effect. R. W. Dole.’ That is his writing on the back of this — this notation on the back? A. Yes, sir. . . .
“Q. Do you know from this record or otherwise when you wrote it? A. Yes, June 6th, 1921. . . .
“Q. Did you approve this school-district boundary in any way? A. No, I didn’t have to approve it. It was already approved.
“Q. Did you make any record? A. Nothing more in the office than what I have here, what I am shownig you.
“[Counsel for the state]: All you have ever had to do with this record was done on June 6th, 1921, was it? A. That is the only thing I had to do in that regard.”
It was also shown that the board of county commissioners of Decatur county approved the petition on June 6, 1921, and ordered the election thereon; also that the enumeration of the territory affected had been made by one Groseclose and that such enumeration was discussed and considered by the county board, and it was shown that 301 names of electors were attached to the petition which had been presented to the county board, and that two affidavits had been filed by Groseclose, a legal elector of the district, deposing that he had made the enumeration of the legal electors and that there were 548 electors in the territory concerned. Such files and records used in the formative stages of the district organization as had been preserved were offered in evidence.
Without attempting to follow appellants’ assignment of errors in detail, let us notice with care the trial court’s findings of fact. Per haps these findings would better be designated as mixed conclusions of fact and of law. But such as they are, it is difficult, indeed, to find support for them in the record. Whether or not the defendant district has a legal existence depends upon the validity of the proceedings leading thereto. Now what was the matter with the proceedings? Merely that the enumerator, a rural preacher and day laborer, took the census of voters of the territory in a shabby little notebook in which he also kept his personal memoranda about his private work and labor, Chautauqua expenses, the purchase of coal, and shipments of clothing for European relief, etc. But' if the little notebook is studied with patience the relevant enumeration is readily severable from the irrelevant personal contents, and there is not the slightest reason for assuming that the enumeration did not have due attention from the only tribunal which had any concern with it— the board of county commissioners of Decatur county. Since there was neither charge of fraud or similar misconduct, the ascertainment of the number of electors in the district and of the sufficiency of the petition for the calling of the election were exclusively the official concern of the county board. This court has repeatedly held that where the determination of the existence of prerequisite facts to authorize official action is vested in a local tribunal, such as a county board or a mayor and city council, its determination is conclusive and is not subject to review except in cases of fraud or similar misconduct of sufficient gravity to vitiate it. (The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; The State, ex rel., v. City of Harper, 94 Kan. 478, 146 Pac. 1169; The State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684; The State, ex rel., v. City of Victoria, 97 Kan. 638, 641, 156 Pac. 705; The State, ex rel., v. School District, 113 Kan. 441, 215 Pac. 453. See, also, Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 Pac. 451.)
On analysis of the trial court’s findings it will be noted that the' infirmities in the organization of defendant district were specifically these:
(a) The board of county commissioners of Decatur county had no jurisdiction to establish the high school.
(b) There was no enumeration as provided by law.
(c) There was no evidence that the county superintendent of Norton county had approved the boundaries of the proposed district.
(d) That the allegations of plaintiff’s petition are established.
Briefly as to these: Jurisdiction was conferred on the board of county commissioners of Decatur county by the presentation of the petition signed by two-fifths of the legal voters of the proposed district, containing appropriate recitals and requesting that an election be called to vote on the proposition to establish the high school. The statute in force at the time the proceedings were initiated was chapter 284 of the Laws of 1917. When that petition was presented the county board had jurisdiction to receive it, to ascertain its purpose and its genuineness and its sufficiency. Its sufficiency depended on the question whether two-fifths of the electors concerned had signed as petitioners. The county board had jurisdiction to determine that question. How? The statute provided that an enumeration should be taken by a resident legal elector and by him certified under oath to the county board. The state assumes that this enumeration should be taken on a neat and presentable document, to which a certificate of the census taker under oath should be attached and carefully preserved in the files of the county board. That would be' the efficient and businesslike way of doing it. But because such efficient and businesslike method of making the enumeration and preserving the record of it was not made, it will not do to deduce therefrom that the enumeration which was made was not legal. Even lawyers and judges, who are bound to know how legal business should be dispatched, sometimes fail to make and preserve records of official acts of the highest importance — the records of final judgments. But their good sense has discovered a practical method of curing such oversights, by recording such judgments nunc pro tunc, and on necessity such record will be made many years after the judgment was rendered. (K. C. F. S & G. Rld. Co. v. Tontz, Treas., 29 Kan. 460; 34 C. J. 71, 77.) Here, while it will be agreed that the enumeration was crudely executed, it is perfectly clear that the enumeration was taken and it was certified on oath by the person who took it. The statute does not say the enumeration shall be taken on some particular form of document nor that it shall be filed with the enumerator’s affidavit. And if it did require it to be so filed, it is not yet too late to file it. It has not been destroyed. It has been submitted for the inspection of this court, and despite the irrelevant private data contained in the book the numeration there taken is not prima fade insufficient, in our opinion; but whether we would so adjudge it need not be stated, since its sufficiency was exclusively for the county board to determine, and not the concern of the trial court or this court.
Touching the finding of the trial court that there was no evi dence that the county superintendent of Norton county had approved the boundaries, it might be sufficient to say that this court some years ago, for reasons which seemed good at the time, held that under our Kansas practice the old common-law rule that in actions in quo warranto the defendant always had the burden to justify his exercise of official power (if he did not deny) did not prevail; that the burden was on the state to charge usurpation or want of official power and to prove it. (The State ex rel. v. City of Harper, 94 Kan. 478, syl. ¶ 1, 146 Pac. 1169.) Applying that rule to this case, the burden was on the state to show that the county superintendent did not approve the proposed boundaries. The state did not prove that. All that the state did show was that Miss Wyrill, the county superintendent of Norton county who-retired from office on May 9, 1921, had failed to make a record of her approval. But in the state’s examination of Mrs. Newbold, the superintendent who succeeded Miss Wyrill, it became perfectly clear that the boundaries had been approved by Miss Wyrill; and if Miss Wyrill had not approved of them it could and should be held that the ready acquiescence of Mrs. Newbold in making a belated record of the matter at the suggestion of the chairman of the board of county commissioners of Norton county, and her unstinted official recognition of the district’s legal status, were the equivalent of her own approval. (H. & S. Rld. Co. v. Comm’rs of Kingman Co., 48 Kan. 70, at pages 78, 79, 28 Pac. 1078.)
We note that the trial court excluded some proffered oral testimony that Miss Wyrill had in fact approved the boundaries. The state’s objection was that such was not the best evidence. The objection was not good. The not-the-best-evidence rule only applies where better evidence than that offered does exist and is available. Here there was none. The oral evidence was perfectly proper. (C. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 Kan. 121, 12 Pac. 593; Gigoux v. Henderson, 107 Kan. 325, 329, 190 Pac. 1092; Gilmer v. School Dist. No. 26, [Okla.] 50 L. R. A., n. s., 99 and note.)
Touching the other matters involved in the trial court’s general finding that the allegations of plaintiff’s petition were established, the only apparent question left for review is the point whether there was in fact any uncertainty in the boundaries of the defendant district as proposed at the time the .proposition to organize was approved by the superintendents of the two counties and as recited in the petition signed by the electors and presented by the Decatur county board. We have examined the plethora of exhibits submitted to this court, as well as the petition to the Decatur county board, and the evidence touching the approval of the county superintendents, and the action of both boards of county commissioners (although official action by the Norton county board was perhaps unnecessary as the statute then provided), and we find no substantial evidence to support the plaintiff’s allegation that the boundaries of the district were uncertain; and the only apparent basis for that allegation was the fact that the county clerk of Decatur county had made an error in his records, which he was properly permitted to correct while giving his testimony, and that an inaccurate map of the district had been hurriedly 'and incorrectly copied into an atlas by some private person for the convenience of the county superintendent of Decatur county. In her direct examination she testified that she had approved the district boundaries as shown in that map, but on cross-examination her attention was called to defendant’s exhibit 1, which she readily recognized as the map which she did officially approve; and the boundaries of the district as shown on that map coincided with those of the district petitioned for, coincided with the territory whose electors were enumerated, and coincided with the boundaries shown on the map, Plaintiff’s exhibit B, presented to the county superintendent of Norton county, and in accord with the boundaries of the district as it has been functioning since its creation in the summer of 1921. Those boundaries are as follows:
“All of Lincoln, township in Decatur county; all of sections Nos. 4, 5, 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 28, 29, 30, 31, 32, 33, in Rockwell township in Norton -county; all of sections Nos. 3, 4, 5, 6, 7, 8, 9, 10, and the northeast one-fourth of section 15 and the north one-halves of sections 16, 17, 18, in Clayton township in Norton county; all of sections Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, in Garfield township in Decatur county.”
The map, defendant’s exhibit 1, drawn in conformity with the boundaries as above defined, was indorsed as follows.
“As approved May 16, 21.
“Approved June 6, 1921.
“Romaine Wyatt,
[County Supt. Decatur Co.]
“Finnis- Penn,
“Chairman of the Board,
[Co. Com. Decatur Co.]
“Filed this 6th day of june, 1921 — George Nellans, County Clerk Decatur Co.”
A similar map, plaintiff’s Exhibit “J,” bore the following indorsements :
“We, the undersigned, county commissioners of Norton county, Kansas, in conjunction with the county superintendent of Norton county, have this day approved the proposed Norcatur rural high-school district, as shown by the within plat.
“Dated this 9th day of June, 1921.
“Signed: R. W. Dole, Chairman.
“John Donovan.
“I hereby certify that Pearl Wyrill, county superintendent of Norton county, approved the proposed Norcatur rural high-school district on May 9th, 1921, as shown by the within plat. Signed: R. W. Dole.”
A painstaking examination of the record, stressing the files, documents, maps and memoranda of official proceedings, and giving the strongest possible significance to the state’s oral testimony, and minimizing or ignoring altogether the oral testimony given in behalf of defendants, impels this court to hold that the evidence did not maintain the plaintiff’s cause of action nor justify the judgment, and that no infirmity affecting the legal integrity of defendant district exists and that defendant is entitled to judgment.
Reversed with instructions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Mason, J.:
Reese Ford was convicted on two counts of an information, one charging him with having possession of intoxicating liquor, the other with selling it. According to the evidence a witness called on the defendant at his home and asked if he had some whisky. He answered that he could get some, and under an arrangement then made he brought a jug of whisky to the witness in his car the next morning, which he sold to him. There was no evidence of his having had any other liquor in his possession. The defendant filed a motion in arrest of judgment on the first count on the ground that possession of liquor was an ingredient of the offense of selling it, of which he was convicted — was necessarily included within it, and therefore he could not be punished for both offenses. The motion was sustained, and the state appeals.
1. A conviction of one offense is a bar to a conviction of another which is a lower degree of the same offense or a necessary ingredient in it or necessarily included within it. (R. S. 62-1444; 16 C. J. 271.) Assuming that in order for the defendant to be guilty of the sale of the jug of whisky it was necessary for him to have had such control of it at the moment of delivery as to render him guilty as well of having it in his possession, it does not follow that the offense of possession of' which he was found guilty was an ingredient of the offense of making the sale. As a practical matter, the defendant in order to carry out the deal may have been obliged to transport the liquor some distance and therefore to have had it in his .possession for a considerable period, but possession for that period was not legally essential to a sale. The offense of having it in his possession was complete before the time for delivery had arrived.
A defendant who Was convicted both of having in his possession and of selling a quart bottle of whisky has already raised the question here presented. In answer to his contention the court said:
“Defendant complains because he was convicted on both counts. His contention is, having liquor in his pessession and selling it were but one ‘act’ for which he could receive but one punishment. Keeping intoxicating liquor is one kind of criminal conduct; selling intoxicating liquor is another and quite different kind; and each is punishable.” (The State v. Supancic, 117 Kan. 110, 111, 230 Pac. 306. See, also, Massey v. United States, 281 Fed. 293; Bell v. United States, 285 Fed. 145; State v. Oberman, 152 Minn. 431; State v. Marchindo, 65 Mont. 431; Chandler v. The State, 89 Tex. Cr. Rep. 299.)
It has been held that a person cannot rightfully be prosecuted for having intoxicating liquor in his possession where with respect to the same transaction he has already been convicted of manufacturing it (Barton v. State, 222 Pac. 1019 [Okla.]) or of transporting it. (Commonwealth v. Wilkerson, 201 Ky. 729.) The latter case is readily distinguishable from the present; the former less so. But in any event we are satisfied with the conclusion here reached.
2. Moreover a motion in arrest of judgment can raise but two questions, neither of which is here involved — whether the court has jurisdiction and whether the information states a public offense. (The State v. Yargus, 112 Kan. 450, 211 Pac. 121.) The defense of second jeopardy may be waived, and is waived by the defendant’s going to trial on the merits without urging it, taking the chance of a favorable verdict. (The State v. White, 71 Kan. 356, 80 Pac. 589; see, also, 16 C. J. 1254.)
The judgment is reversed with directions to overrule the motion in arrest of judgment. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiffs seek to recover damages for the violation of a contract made by the defendant with the plaintiffs for the erection of a school building in the city of Wichita. Judgment was rendered in favor of the defendant on its demurrer to the evidence of the plaintiffs, who appeal.
The evidence tended to prove that the defendant desired to erect a school building in the city of Wichita, to cost approximately $170,000; that the defendant received bids for the erection of the building; that H. J. Vandenberg and W. H. Vandenberg, a partnership under the name of Vandenberg & Son, offered to erect the building for $170,578.40, which offer was accepted by the defendant; that a written contract for the erection of the building was then signed by Vandenberg & Son and by the defendant, which contract in article 22 of the specifications contained the following provision: “The owner shall have the right to require the contractor to give bond covering the faithful performance of the contract and the payment of all obligations arising thereunder, in such form as the owner may prescribe and with such sureties as he may approve”; that the defendant required Vandenberg & Son to give bond under the contract; that the defendant signified that a bond executed by the United States Fidelity and Guaranty Company would be accepted; that the plaintiffs proceeded to procure a bond as required by the contract, and negotiated with the United States Fidelity and Guaranty Company and with the Massachusetts Bonding and Insurance Company for bonds; that the Massachusetts Bonding and Insurance Company required that the contract for the erection of the building be signed by parties other than H. J. Vandenberg and W. H. Van denberg; that in obedience to that request the Yandenbergs procured the signatures of George R. Lewis, E. Shepherd and S. J. Lewis as parties to the contract; that separate bonds for the faithful performance of the contract were then presented in the sum of $170,-578.40, purporting to be signed by the United States Fidelity and Guaranty Company and by the Massachusetts Bonding and Insurance Company; that evidence of the authority of those signing the bonds to sign them for their principals was submitted with each of the bonds so furnished; that this evidence consisted largely of telegrams; that upon the bonds being presented to the defendant, it referred the examination of them to a committee consisting of one of its members and its attorney, who reported that the evidence of the authority of the agents to sign the bonds was not satisfactory because that evidence consisted largely of telegrams; and that after that report was made the defendant rejected the bonds and caused to be recorded on its minutes the following:
“Deam moved that the action of the board in awarding the contract to Vandenberg & Son for the Roosevelt intermediate school should be rescinded, for the reason that the contractor has failed to comply with and fulfill the conditions of the award by supplying a good, sufficient and legal bond, and a bond satisfactory to the board of education. Motion carried.”
The evidence also tended to show that the proof submitted to the defendant concerning the authority of the person who signed for the United States Fidelity and Guaranty Company was limited to signing bonds for $25,000. There was no evidence submitted to the defendant to establish the authenticity of the signatures to the telegrams.
The specifications for the erection of the building, which were a part of the contract, contained the following provision:
“If the contractor should be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should. be appointed on account of his insolvency, or if he should, except in cases recited in article 35, persistently or repeatedly refuse or fail to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payment to subcontractors or for material or labor, or persistently disregard laws, ordinances or the instructions of the architect, or otherwise be guilty of a substantial violation of any provision of the contract, then the owner, upon the certificate of the architect that sufficient cause exists to justify such action, may, without prejudice to any other right or remedy, and after giving the contractor seven days’ written notice, terminate the employment of the contractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem expedient.”
1. Plaintiffs argue the law concerning the construction of contracts and bonds, the law of principal and agent, the law concerning rescission and forfeiture of contracts, the law of estoppel so far as it concerns the defendant, and the law concerning the rejection of certain evidence offered by the plaintiffs on the trial. All of the plaintiffs’ argument, except that concerning the law governing rescission of contracts, depends on the sufficiency of the evidence on the trial to show that those who signed the bonds had authority so to do. The sufficiency of the evidence submitted to the defendant at the time the bonds were offered to show the authority of those who signed them, so as to prove that the defendant acted unreasonably, capriciously, or in bad faith in rejecting them, is not argued. It may be conceded that the evidence'on the trial conclusively established the fact that the bonds were signed with authority, but the evidence introduced on the' trial was not the same as the evidence submitted to the defendant. The reasonableness, good faith or capriciousriess of the defendant in refusing to approve the bonds was, or should have been, the principal question at issue on the trial. It was the turning point in the case. The evidence offered on the trial was not directed to that point. The evidence introduced on the trial was introduced for the purpose of showing that at the time the bonds were signed those who signed them for their principals had the necessary authority therefor. It was necessary to prove that authority, but it was also necessary to prove that a showing of that authority was made to the defendant when the bonds were submitted, in order to show that the objection of the defendant was unreasonable, capricious or in bad faith. It was incumbent on the plaintiffs to satisfy the defendant concerning the security on the bonds and the signatures on them. If on the trial evidence had been introduced to show that the defendant acted capriciously, unreasonably or in bad faith in rejecting the bonds, the matters argued by the plaintiffs would be material; without that evidence the matters argued are immaterial.
The law on this subject has been discussed by the courts of this country. In Smith v. Weaver, 41 Pa. Supr. Ct. 253, the court said:
“Where one party agrees to deliver |to another party a bond satisfactory to the latter for the performance of the contract the expression of dissatisfaction by the latter with the bond tendered is sufficient, without more, to excuse the latter from the performance of the condition of his contract, if there is no evidence that the rejection of ithe bond was due to an unreasonable or capricious motive.”
In 13 C. J. 675 the following language is used:
“Contracts in which one party agrees to perform to the satisfaction of the other are ordinarily divided into two classes: (1) Where fancy, taste, sensibility or judgment are involved; and (2) where the question is merely one of operative fitness or mechanical utility''. In contracts involving matters of fancy taste or judgment, when one party agrees to perform to the satisfaction of the other, he renders (the other party the sole judge of his satisfaction without regard to the justice or reasonableness of his decision, and a court or jury cannot say that such party should have been satisfied where he asserts that he is not. The rule also applies to a contract providing that security for its performance shall be satisfactory.”
Again, on page 678 of the same work, the author says:
“It would seem that where the subject matter of the contract involves a question of individual Itaste or sentiment rather than of utility, the good faith of the party declaring his dissatisfaction cannot be inquired into. But where the subject matter of the contract relates to a thing which is ordinarily desirable only because of its commercial value or i|ts mechanical fitness, it is held that the party must act in good faith and must be honestly dissatisfied.”
This court has had occasion to declare the law governing very similar conditions. In Campbell v. Holcomb, 67 Kan. 48, 72 Pac. 552, this court declared that—
“A contract of employment at a salary of seventy-five dollars per month and traveling expenses provided that should the employee continue his services for an entire year, and should the character of his business as to volume, etc., and his manner of conducting it be satisfactory to the employer, the latter would make the salary equivalent to one hundred dollars per monlth by the payment of the twenty-five dollars excess at the close of the year, the determination of which should be left entirely to the employer. In an action ]to recover the excess salary, held, that satisfaction of the employer at the end of the year must be proved.” (Syl.)
In Hollingsworth v. Colthurst, 78 Kan. 455, 96 Pac. 851, the following language was used:
“A contract for the sale of land provided Ithat the vendor should furnish an abstract showing satisfactory title to the property. In an action against the vendee for damages for his failure to perform, it was alleged that Ithe vendor furnished an abstract showing a good and sufficient title. Held: (1) The Vendee was the party to be satisfied. (2) It was immaterial that the title was good if the vendee in good faith was not satisfied with it. (3) In order to withstand a demurrer it was essential that the petition either allege that the title was satisfactory to the vendee or show that the vendee did not act in good faith.” (Syl.)
These cases show that the conclusion reached by the trial court on the demurrer to the evidence of the plaintiff was correct.
2. Plaintiffs argue that because they were not given seven days’ notice of the termination of the contract, the attempted rescission by the defendant was without effect. This makes it necessary to examine the quoted part of article 22 of the specifications. That article provided that the defendant should have the right to require the plaintiffs to give bond to cover the faithful performance of the contract, the sureties on the bond to be approved by the defendant. That bond was required. The contract was not complete and binding until the bond was approved. The defendant had the right to approve the bond and the right to exercise discretion in that approval. The defendant was not compelled to accept whatever bond the plaintiffs should offer, even if it were good, but could insist on a satisfactory bond being given, so long as'the objection to the bond offered was not unreasonable, capricious or in bad faith. The objection made by the board to the bonds tendered cannot be said to have been unreasonable, capricious or in bad faith, because in the event of an action on the bonds to recover thereon, if the surety companies had pleaded that the bonds had been executed without authority, the defendant might have been unable to prove that they had been executed with authority. The provision of article 37 of the specifications which required seven days’ written notice of the termination of the contract would have applied after the contract became effective and binding. It would not apply until that time. Because the bond offered was not approved, the contract did not become binding on the defendant, and for that reason the plaintiffs cannot recover any damages that may have been sustained by them.
None of the contentions of the plaintiffs can be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.
This is an action to recover the value of wheat alleged to have been lost in transit when consigned for shipment over defendant’s line of railroad. It is tried to a jury, who made special findings of fact and rendered a general verdict for plaintiff. The defendant moved to set aside some of the findings of fact, for judgment in its favor upon the findings notwithstanding the general verdict, and for new trial, all of which motions were overruled and judgment rendered for plaintiff. The defendant has appealed.
The plaintiff claimed a loss of wheat in the shipment of two cars. One of them was shipped from Colby, February 7,1921. As to this car the evidence was that the wheat was weighed on Howe hopper scales in three drafts of 36,000 pounds each, making a total of 108,000 pounds of wheat placed in car. It was unloaded at Kansas City, Mo., February 15, where the grain was weighed by the state grain inspection department in two drafts of 87,780 pounds and 10,230 pounds, making a total of 98,010 pounds, showing a loss of 9,990 pounds. The agent of the plaintiff testified that he coopered the car before the wheat was loaded and considered it a good car; that after loading the grain he examined the car to see if it was leaking and tested it with a clawhammer, and did not observe any leakage of the car.
The other car was loaded at Quinter, Kan., February 17. The wheat was weighed over Fairbanks-Morse wagon track scales, which showed that 88,000 pounds of wheat were put in the car. This car was inspected by the agent of the defendant, who issued the bill of lading, and he testified that plaintiff’s employee coopered the car with paper, car liners and grain doors prior to loading it; that the wheat was shoveled into the car from wagons which had been weighed on the wagon scales, and immediately after plaintiff finished loading the car he sealed the door, and the car went forward toward destination without any grain having leaked from the car prior to leaving Quinter. This car, when unloaded at Kansas City February 26, 1921, and weighed by the state grain inspection department, was found to contain 78,800 pounds. There was evidence that the employees of the state grain inspection department at Kansas City inspected cars before and after unloading, and the record of the inspection of these two cars did not disclose any leakage or bad condition in either of them. There was evidence on behalf of defendant from the conductors who handled the respective cars in shipment, and from the head of the mechanical department at the several division points through which the shipments passed, that no accident had happened to the cars during shipment, no repairs made thereon, and that the records of their several inspections en route did not disclose any leakage of the cars or bad condition. Each of the cars had been in the Kansas City yards three or four days before being unloaded. Upon this evidence the jury returned findings of fact as follows:
“1. Q. Was car P. R. R. 86,870 in good, sound condition and suitable for the transportation of bulk wheat when it left Colby, Kan., for Kansas City, Mo., loaded with one of the shipments involved in this case? A. No.
“2. Q. Was car C. N. W. 141,928 in good, sound condition and suitable for the transportation of bulk wheat when it left Quinter, Kan., for Kansas City, Mo., loaded with one of the shipments involved in this case? A. No.
“3. Q. Did either of the cars mentioned in the preceding questions meet with any accident which would cause grain to leak from them and which would require repairs while being transported between their point of origin and the unloading elevators? A. No.
“4. Q. Was car P. R. R. 86,870 in good, sound condition, suitable for transportation of wheat, when it was set to the elevator at Kansas City, loaded with one of the shipments involved in this case for unloading? A. No.
“5. Q. Was car C. N. W. 141,928 in good, sound condition, suitable for transportation of wheat when it was set to the elevator at Kansas City, loaded with one of the shipments involved in this case for unloading? A. No.
“6. Q. After both of said cars were unloaded at Kansas City were they then found to be in good physical condition and suitable for the transportation of grain? A. No.
“7. Q. Did either of the cars involved in this case meet with any accident while being transported between points of origin and Kansas City which made it necessary to repair- them? A. No.
“8. Q. Were the doors on both of the cars involved in this case continually protected by seals from the time the wheat was loaded into them until unloaded at the elevators, except when samples were being taken by the bonded inspectors? A. Yes.
“9. Q. Was there any wheat lost in transit from the cars involved in this case between the time they were loaded and the time of unloading? A. Yes.
“10. Q. If you answer question No. 9 in the affirmative, state when and in what manner the wheat was lost from said cars. A. Slow leakage or stolen in transit.”
The defendant moved to set aside the answers of the jury to special questions Nos. 1, 2, 4, 5, 6, and 9, for the reason that each of them is contrary to the evidence.
It is argued with much force that the answers to questions Nos. 1 and 2 are contrary to the evidence; that the only evidence as to the condition of the cars at the time they were loaded showed they were in good condition, hence that the jury had nothing upon which to base its answers that they were not; that the answers to questions Nos. 4, 5 and 6 are against the only evidence offered as to the condition of the cars when they were unloaded at Kansas City, and that the answer to question No. 9 is contrary to the evidence of the several conductors and inspectors of defendant. There is no attack made by defendant directly upon the weight of the wheat loaded into the cars, nor upon the weight of the wheat unloaded from the cars. There was no effort made to show that the scales in any instance were wrong nor that there was any mistake or fraud or inaccuracy in the weighing. These weights show a shortage between loading and unloading of 19,190 pounds. That is a matter which stands out clearly in'the evidence, without any direct attack being made upon it. If the evidence as to the weights was true, and the seals of the cars not having been broken, the jury was forced to the conclusion that somewhere en route the wheat leaked or was stolen from these cars. The jury had to decide between two conflicting views of the evidence, viz.: Were the weights as testified to correct? or Were the cars in good condition and did no grain leak from them? The evidence concerning one of these conditions had to yield to that concerning the other; both could not be true. It is the province of the jury to weigh the evidence and to determine which of two conflicting views of the evidence has been established. It is clear from this sitúa tion, the jury concluded that the cars were, in fact, not in good condition, even though such inspection as was given the cars at the time they were loaded and such inspection as was given them en route and at the time they were unloaded, did not disclose the leakage.
We cannot say the conclusion reached was wrong, nor that the findings were not supported by evidence. The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In July, 1920, Louis J. Masopust sold a tractor to A. J. Hopkins, receiving in payment a steam engine valued at $2,000, $1,040 in cash, and a note for $1,800, which was secured by a mortgage on the tractor and other property. He brought this action in replevin for the tractor, claiming title by a sale under the mortgage. The defendant in his answer, in addition to a general denial, alleged that an oral warranty had been given and broken, on account of which he claimed damages. Judgment was rendered in favor of the plaintiff for the possession of the tractor, and in favor of the defendant for the recovery of the price of the tractor (including the $2,000 allowed for the engine) and the freight he had paid. The plaintiff appeals from the money judgment against him and the defendant asks that as security for its payment he be given a lien on- the tractor.
The plaintiff suggests that the allegations concerning the breach of warranty were not properly matters of counterclaim. A counterclaim may consist of a demand'arising out of the transaction set out as the foundation of the plaintiff’s claim, or connected with the subject of the action (R. S. 60-711), and may be interposed in replevin. (34 Cyc. 661, 1417; 23 R. C. L. 924.) Moreover, no objection on this ground appears to have been made in the district court.
The plaintiff especially urges a reversal because the trial court gave no instructions on the measure of damages. The defendant in his answer asked damages, which were not allowed, for being deprived of the use of his threshing machine in 1920 and 1921; and also for what he had paid for the tractor and freight, amounting to $3,282.50, which were allowed. Therefore if the defendant was entitled to recover what he had parted with to get the tractor, the omission of the trial court to instruct as to the measure of his damages cannot have been prejudicial.
By a liberal construction, and in the light of the- evidence and findings, the answer may be regarded as asserting a right to. have the contract of sale rescinded for a breach of warranty and to recover the payments made upon it. Some courts hold that rescission upon ■the ground of a breach of warranty, unaccompanied by fraud, should not be allowed, but the weight of authority is to the contrary (1 Black on Rescission and Cancellation, § 185; 2 Williston on Sales, 2d ed., §§ 608, 608a), and this court is committed to the latter view. (Implement Co. v. Willhite, 102 Kan. 56, 169 Pac. 549; Vandermark v. Plow Co., 114 Kan. 6, 216 Pac. 829.) There was evidence that in March, 1921, the defendant told the plaintiff that the tractor wouldn’t work and he would just have to take it. The answer set out and the reply admitted that on July 15, 1921, the defendant served a written notice upon the plaintiff .stating that the tractor did not conform to the warranty, and demanding a return of the money and notes given for it. The defendant used the tractor after that time, but there was evidence that this was dohe in consequence of a statement of the plaintiff that he would have a man out to fix the tractor so that the objection to it would be met.
The defendant testified that there was an oral warranty that the tractor had power enough to pull his separator — to operate it to advantage. This the plaintiff denied. The verdict for a recovery of money and the answers to special questions clearly imply a finding against the plaintiff on this issue. The defendant also testified that the tractor could not pull the separator, and for this reason was of no value to him and caused him actual loss by preventing the use of his separator. The principal controversy grew out of the plaintiff’s contention that any failure of the tractor to furnish sufficient-power was due to the use of too small a pulley at the separator end of the drive belt, causing too rapid a revolution of the cylinder. On this issue the plaintiff’s evidence was that the pulley should have been 15.9 inches in diameter; that in fact it was but 14 inches, including the lagging, resulting in about 960 revolutions of the cylinder a minute, when there should have been but 850. The defendant introduced evidence to the effect that he used the largest pulley he could get, which was 14 inches in diameter, and increased this to 15 inches by lagging, resulting in 900 revolutions of the cylinder, and that the makers of the separator recommended 850 to 900 revolutions. The jury found specifically that the pulley used was of the proper size; that the size required was 14% to 15 inches (which would give 900 to 932 revolutions), and that the proper number of revolutions was 850 to 950. The disputed facts out of which the controversy grew, including the questions regarding the warranty and the way in which the machinery required to be operated and the way in which it was operated, were thus resolved in favor of the defendant and against the plaintiff upon sufficient evidence, and must-be regarded as settled by the decision of the jury, with the approval of the trial court, unaffected by any irregularities that may have characterized the proceedings. It follows that the plaintiff’s request for a reversal should be denied.
The claim of the defendant that the judgment should be modified by giving him a lien on the tractor for the amount of his judgment is likewise unavailing. There is a difference of judicial opinion as to when, if ever, upon the rescission of a contract of sale for fraud or breach of warranty, the buyer should have a lien on the property for What he has. paid. (See notes, 7 A. L. R. 993; 2 Williston on Sales, 2d ed., § 649; Dry Goods Co. v. Scott Mfg. Co., 258 S. W. 203.) That question need not be here decided. The special findings do not show affirmatively that the defendant made a claim of a lien, and the general verdict awarding possession to the plaintiff may be regarded as implying a finding to the contrary.
The judgment is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by H. T. Grubb against C. H. Sargent, upon two “myself” promissory notes executed by Sargent on June 7, 1921, each for the sum of $2,500, bearing interest from date at the rate of eight per cent per annum. They were delivered by Sargent to the agents of The Associated Mill and Elevator Company, and were later passed into the possession of the plaintiff. The result of the action was a verdict and judgment for defendant, from which plaintiff appeals.
It appears that persons representing themselves as agents of the mill and elevator company visited Sargent at Smith Center and induced him to purchase fifty shares of the common stock of the mill and elevator company, and for this purchase the notes in suit were given. When the shares were sold to defendant it was represented that the mill and elevator company owned the stock; that the blue-sky board of the state had authorized the sale of the stock; that the stock was then worth $100 per share, and that the mill of the company would be in operation in a few weeks and the stock would then be worth $150 per share, and that if defendant did not wish to keep it they would resell it for him. When the sale was made none of the stock was owned by the mill, and elevator company, but the entire issue had been transferred to T. S. McQueen; neither had any authority been given by the blue-sky board to sell any part of that stock, and when sold to the defendant the stock was worthless. At that time the mill and elevator company was insolvent, and shortly afterwards it passed into the hands of a receiver. Fraud in the inception of the notes was sufficiently shown in the trial, and counsel for plaintiff stated that plaintiff would not offer any evidence denying the representations which defendant had testified were made to him when the notes were executed. The position of plaintiff, it was said, was that he knew nothing of the misrepresentation and had purchased the paper without knowledge of the fraud. Plaintiff was a farmer living near Raytown, Mo., and was a stockholder in the Raytown bank. He was also a stockholder in the Blue Valley Bank, at Leeds, four or five miles away, where his principal account was kept. He testified that Partridge and Shands, assuming to act for the mill and elevator company, procured Smith, the cashier of the Raytown bank, to go with them to plaintiff’s home, where the notes of Sargent were sold to the plaintiff for $4,750. When the sale was made the signature of the mill and elevator company was indorsed on the notes with a rubber stamp in plaintiff’s presence, and the name of Partridge was signed below by McQueen. The owner of the stock for which the notes were given was not indorsed on either of the notes. Plaintiff states that he gave his check on the Blue Valley bank for $4,750 to Partridge, and that it was paid out of his account with that bank. It appears the notes were left with the bank, it was said, for safe-keeping. About September 15, 1921-, defendant met and conferred with McQueen at the offices of the mill and elevator company about redeeming the notes in accordance with the previous agreement, but McQueen said the company could not do so at that time, but would be able to redeem them when the notes became due. About the time they became due defendant called on McQueen, who went with him to see Mr. Smith, the cashier of the Raytown bank, who had the notes, and the three called on plaintiff at his farm, where defendant made an interest payment.
Among other defenses, defendant had alleged that plaintiff had knowledge of the fraudulent scheme by which the notes were obtained; that he had paid nothing for them, and was not the owner or holder in due-course or otherwise. With the general verdict and in answer to special questions the following findings were returned:
“Q. 1. Do you find that the plaintiff purchased the notes in question in due course? A. No.
“Q. 2. Do you find that the plaintiff purchased the notes in question: (a) For value? A. No. (b) Before maturity? A. No. (c) Without notice of infirmity? A. No.
“Q. 3. Do you find the plainitff had knowledge of such facts that his action in taking the notes in suit amounted to bad faith? A. Yes.
“Q. 4. If you answer the last above question in the affirmative, state fully the facts of which plaintiff had knowledge? A. Because we find that the plaintiff did not show by sufficient evidence that he possessed the money with which to buy the notes.”
Motions of plaintiff for judgment on the special findings to set them aside and for a new trial were overruled. It is contended that the answer to question No. 4 is in effect a finding that plaintiff had no knowledge of the fraud, and that therefore the general verdict should have been set aside. It is obvious that the answer is not responsive to the question. The jury, instead of stating the facts of which the plaintiff had knowledge, gave a reason for their former finding that there was no actual purchase of the notes by plaintiff. They had specifically found that no purchase had been made, and instead of giving an appropriate answer to the question gave one in explanation of the theory and finding which they had prominently in mind. The inaptitude of an answer to a question is not necessarily in conflict with the general verdict nor inconsistent with other special findings. It was the duty of the jury of course to 'make answers responsive to the questions asked, and it has been held that where a jury returns an unresponsive answer to a special question it is the duty of the court, upon request of either party, to require the jury to retire and make a direct and proper answer, and if the party interested in obtaining an apt answer does not make or join in such request he is not in a position to complain of the answer. (Smart v. Mayer, 103 Kan. 366, 175 Pac. 159.) No such request was made by plaintiff. Apparently he was satisfied to allow the unresponsive answer to stand as made. The question might have been withdrawn by him or he was at liberty to waive the requirement of a direct answer, and his failure to ask for a responsive answer is in a sense a waiver of the inapt one returned. It is not in conflict with other findings nor with the general verdict.
It is further contended that the evidence does not support the verdict returned. The jury evidently discredited the testimony of the plaintiff. • That there was fraud in procuring the execution and delivery of the notes was abundantly shown, and plaintiff offered no opposing testimony. When fraud in the inception of the notes was shown, the burden was cast upon the plaintiff to prove that he was a holder in due course. (Ireland v. Shore, 91 Kan. 326, 137 Pac. 926; Beachy v. Jones, 108 Kan. 236, 241, 195 Pac. 184; Consolidated Motors Co. v. Urschel, 115 Kan. 147, 222 Pac. 745.) It is insisted that plaintiff successfully met this requirement. He positively denied any connection with the manipulation with the parties who fraudulently procured the notes or that he had any knowledge of anything affecting his title. There were circumstances brought out which may have led the jury to doubt his asserted innocence or that there was in fact a real purchase of the notes. It appears that he was a man of moderate means, and the amount alleged to have been paid for the notes constituted a large part of his assets. It having been denied that he had the means to purchase the notes, he undertook to show that h¿ had funds to do so, but there were some inconsistencies in his testimony respecting his resources. In a deposition taken before the trial he stated that his money resources consisted of $350 which he had received from his mother’s estate and which was deposited in the Raytown bank, and $1,500 received in a real-estate transaction, which was deposited in the Blue Valley bank. These items were far short of the amount claimed to have been paid for the notes, and when it came to the trial he added another item, stating that he had an additional $3,000 which had been received on a forfeit on a real-estate contract. He stated that he had-forgotten this $3,000 item when he first testified. He did not produce the contract upon which he claimed the forfeiture had been made. Although he stated it was deposited in the bank, he did not offer to show any deposit slip, receipt or other evidence that the money was received or deposited as stated. The tax returns showed that plaintiff did riot claim the ownership of the notes. At the assessment following the alleged purchase the notes were not listed by him for taxation. Again the notes remained in the bank in the custody of Smith, the cashier of the Raytown bank, the officers of which were active throughout all the transactions. Smith was present when the transfer was made. He had dealt in other pieces of mill and elevator property, and is said to have recommended the purchase of the notes in question. He was a neighbor of McQueen, the owner of all the capital stock, and was with McQueen when the interest payment was made and negotiations were had as to further time for payment. McQueen, as we have seen, owned the stock and necessarily knew of the insolvency of the company, and of course knew that it would be easier to make the collections on the paper if the notes were in the hands of one who was apparently an innocent holder. The bank, it appears, was keeping in close touch with all the transactions concerning the notes. An officer of the bank was present at the time of the rubber-stamp transfer, also when the interest was paid, when the suit thereon was brought and when the trial was had. It was a subject for consideration that the plaintiff obtained the notes which were signed by one he had never heard of before, had accepted the indorsement of a company of which he had no knowledge, which was written with a rubber stamp and signed by one who was a stranger to him. On the whole it was a fair question for the jury to determine whether the circumstances mentioned, as well as some others that have not been mentioned, were sufficient to overcome the direct testimony of the plaintiff as to whether there was a bona fide sale and transfer of the notes and as to the good faith of the plaintiff in the transactions. (Bank v. Freeburg, 84 Kan. 235, 114 Pac. 207; Beachy v. Jones, 108 Kan. 236, 195 Pac. 184; Security Co. v. Low, 112 Kan. 153, 210 Pac. 190.)
There is an objection to rulings on testimony, but we find nothing substantial in it, and no sufficient ground to warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On rehearing the defendant urges that a violation by a clerk of the district court of the statute referred to in the original opinion, forbidding county officers to retain any compensation or reward for doing anything appertaining to the duties of their office (R. S. 21-1607), is not a misdemeanor because the section fixing a penalty therefor has been repealed. The basis of the contention is this: Section 5 of the original act (Laws 1867, ch. 132; Gen. Stat. 1868, ch. 31, pp. 389-390), of which the provision above referred to formed section 3, subjected to a fine any state or county officer who should violate any of its provisions. Sections 1 .and 5 were amended in 1871 and in the amendment to section 5 (which fixed the penalty) the list of persons subject thereto included only public treasurers, all other officers being omitted. (Laws 1871, ch. 152, §§ 1, 3.) Section 1 of the 1871 act amended section 1 of the 1867 act, repealing, of course, the original section, and section 3 of the 1871 act amended section 5 of the 1867 act, repealing the original section. This left the statute without a provision for punishment so far as officers other than treasurers were concerned. But in 1889 the penalty section was again amended (Laws 1889, ch. 237, § 2) into its present form, including the provision that “any county officer . . . who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor.” The act of 1889 described the penalty section which it amended as section 3 of chapter 152 of the Laws of 1871, which it was; but it was also section 5 of chapter 132 of the Laws of 1867, as amended, a fact the legislature recognized by including (as the amendment of 1871 had done) the subtitle “section 5” as a part of the section as it should read after the amendment. An amendment to a section of a statute is regarded as incorporated into the original act and becoming a part of it. (Blake v. Board of Education, 112 Kan. 266, 267, 210 Pac. 351.) The first amendment of the penalty section at the time of its adoption became in effect a part of the act of 1867. When it was amended the original act was thereby amended, and the words “this act” in the latest form in which the statute was cast referred to the whole act as finally amended, and not merely to the second amending act. (Wright v. Cunningham, 115 Tenn. 445; State v. Buttignoni, 118 Wash. 110; see, also, Evans v. Adams, 21 Kan. 119; The State v. Berry, 103 Kan. 891, 176 Pac. 649.)
The fact that there is a statute requiring the clerk of the district court in counties having a population of more than 70,000 to deposit all funds with the county treasurer on the day after their receipt (R. S. 19-2613) does not avail the defendant for two reasons — it has never been acted upon by him, and it was not operative in Shawnee county until some time after March 1,1924, while the matters complained of took place largely in 1923.
The commissioner found that the defendant failed to file his four quarterly reports for 1923, for periods, respectively, of 4 months and 24 days, 2 months and 6 days, 24 days, and 1 month and 24 days beyond the time they were due by the mandatory terms of the statute, and during these periods retained moneys distributable to' the county and state. Whether or not these delinquencies in themselves amounted to a ground of ouster, they militate against the ex ercise in the defendant’s favor of such discretion as the court possesses in the matter, especially in view of the fact that he was drawing interest on the amounts so withheld.
The original judgment is adhered to and the defendant’s office is declared forfeited, the forfeiture to be operative upon the filing of this opinion. | [
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Spencer, J.:
In an action to quiet title, plaintiff Kelwood Farms, Inc. as the owner of real estate in Greenwood County, Kansas, seeks termination of an oil and gas lease claimed by the defendants, C. Stewart Ritchie, III, Jeanette S. Ritchie, and Alice T. Ritchie; a further judgment barring the defendant Charles S. Ritchie from any interest in the minerals in place; and allowance of statutory damages and attorney fees under the provisions of K.S.A. 55-202. Judgment was entered for defendants and plaintiff has appealed.
The oil and gas lease in question, dated July 24, 1920, and known as the “Fee” lease, contained the following language:
“It is agreed that this lease shall remain in force for a term of Five years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.”
and was operated by Charles S. Ritchie for his co-defendants. The interest in minerals in place claimed by the defendant Charles S. Ritchie was created by a conveyance dated January 2, 1964, from one Dewey F. Weaver and wife, and is as follows:
“Reserving, however, unto Dewey F. Weaver all oil, gas, and other minerals in and under said land for a period of ten years from the date hereof, and reserving unto Dewey F. Weaver an undivided h interest in and to the oil, gas and other minerals in and under said land for as long after January 2, 1974, as oil or gas is continuously produced in commercial quantities.”
This interest was conveyed by the Weavers to the defendant Charles S. Ritchie on May 16, 1972. From that date until January 2, 1974, Charles S. Ritchie was the operator of the lease and the owner of all of the minerals in place. After January 2, 1974, his claim is to an undivided one-half interest in the minerals in place. This case was filed January 10, 1974.
The case was tried to the court on May 1, 1975. After consideration of the matter and the briefs submitted by counsel, the trial court made findings of fact which are incorporated in the journal entry of judgment. Facts so determined which are deemed material on this appeal are as follows:
“12. Prior to the institution of the lawsuit, production of oil and gas, within the meaning of the lease and the mineral reservation, ceased for an unbroken period of time from July, 1972 to February, 1974. . . .
“13. The subject leasehold is also known as the Fee Lease, and consists of four wells which are each referred to by number herein. Further, as with most of the oil fields in this area, they are characterized as ‘stripper’ wells.
“14. The evidence presented at the time of trial with respect to the actions taken by the defendant upon the cessation of production can best be presented by considering what, if anything, has been done by the defendant with respect to each particular well. Considering them in inverse order, I find as follows:
“a. Well No. 4. This is also referred to as the east offset to Maclaskey, and it also is referred to at times as the north well. The testimony was that it was shut down in June, 1972 when water from other formations broke through. At that time it had been making ten barrels a day. On June 29, 1972, defendant brought a Cardwell mobil hoist to the well for the purpose of performing a squeeze job. On July 1, 1972, defendant had the well logged and had to shoot off the tubing. On July 5,1972, he moved in cable tool rig to drill out the bottom part of the packer, which operation continued for approximately three weeks. Late in July or the first week of August, 1972, he put in a cement plug in the bottom and called in United Cement Company to squeeze it. After this, the driller and his crew went to Missouri, and defendant had to wait for a new crew to drill out the plug. Nothing further was done until October of 1973, at which time the defendant found a new crew and resumed work. His testimony was that there were no cable tool drillers available between the first week in August, 1972, and October of 1973; and that cable tool drilling is a specialized occupation. No evidence was presented by the plaintiff to contradict this testimony as to the availability of cable tool rigs in this area. In November, 1973, defendant swabbed out the oil and put it in the tank, just before putting in a new plug. They set a new plug down where the old one had been. During this period it was rainy, snowy and muddy (October to November, 1973). In January or February, 1974, they tried to put it on the pump, but the new squeeze job and plug did not hold. In February, 1974, defendant stopped working on it because they had to drill it out and run new tubing. There was no one available to do it and also there was no tubing available. There has not been any new tubing available since then according to the testimony of the defendant.
“b. Well No. 3. In August, 1973, defendant put new foreign tubing in the well. He purchased approximately 1,000 feet at 90 cents a foot for a total cost of $900 to $1,000. The well was chemically treated, and as a result, it ate a hole in the casing creating the same situation as with Well No. 4. Defendant testified that it needs a new packer and new tubing. It could be put in production in three or four days time. At the time it went down, it was making approximately three and one-half barrels a day.
“c. Well No. 2. From August, 1972 to August, 1973, the defendant testified that he spent much time and effort trying to recore in the Kansas City and Lansing Limestone formation which is higher up in the hole about 600 feet. He stated that this well needs larger tubing (2Vis inch tubing) which isn’t available. It will produce with new tubing. Defendant estimates it could make approximately ten barrels a day.
“d. Well No. 1. This well pumped until July, 1972, when it was voluntarily shut down by the defendant following the break down on Well No. 4, which had quit in June, 1972. The reason given by the defendant was that the low price of oil, i.e., $2.40 a barrel when the well was making about 3V2 barrels a day was not profitable. In November, 1973, defendant started working on it. It needed to be cleaned out, acidized and needed new tubing. It has been producing since February, 1974. Sometime after February, 1974, it developed a hole in the tubing. Defendant testified that enough tubing has been taken from the other three wells to replace the tubing in No. 1. Further stated that No. 1 does not need as good a tubing as the other three wells because of lower hole pressure. Testified that out of 6,000 feet of tubing pulled from the other wells he had salvaged 1980 feet of usable tubing.
“15. The electric servicé furnished by Kansas Power & Light Company for the operation of the claimed leasehold estate was discontinued at the request of Charles S. Ritchie, the operator, on August 9, 1972, and no electric service was furnished to the subject leasehold estate thereafter until the 5th of February, 1974, when the meter, which had been removed six months after service was discontinued, was reinstalled.
“16. Defendant in his testimony estimated that the four wells were capable of producing twenty barrels of oil a day resulting in an estimated profit of $50,000 a year. Plaintiff offered no evidence to refute the production capability of the lease, nor any evidence as to whether a prudent operator would continue operating the lease under existing circumstances.
“17. Defendant has expended in excess of $6,000 in 1972 and ’73 in efforts to repair the wells and restore the production on the lease. Most of these efforts were expended prior to September, 1972 and beginning again in October of 1973..
“18. The reason for the relative inactivity on the lease from August, 1972 until October, 1973, as admitted by defendant, was the unavailability of drilling crews; the low price of oil (ranging from $2.65 to $2.85 per barrel in 1972, increasing up to $3.40 in the fall of 1973 when it began rising until the time of this trial when it was $12.00 per barrel); and the national, or at least regional, shortage of tubing in the oil industry.
“19. Defendant’s testimony was that none of the operations or expenses incurred were attempts to salvage out or abandon the lease, and further it was shown that a full array of equipment, including pump jacks on each well, rods and tubing, storage tanks, disposal wells, and salt water pumps, well head equipment, lead lines, electric lines and poles, and various other oil field equipment, have remained on the lease at all times.
“20. Mr. Grooms, local oil field producer and oil field supplier, testified that they started having trouble getting tubing in 1972 and 1973. That there was some new tubing in ’74, but.that there was no tubing in half of ’73 and half of ’74, and that he has not yet been able to get new tubing in ’75. He also is the owner of stripper wells in this region and testified that during 1972 and 1973, because of low oil prices, the only money he has spent for improvements on his wells was what he had left at the end of each month. Prior to the increase in oil, he characterized the financial picture for oil industry in Greenwood county as very poor, and stated that the wells he had purchased had been dropped by other people because they could not be produced at a profit.”
The court concluded in part as follows:
“5. Keeping in mind that these were stripper wells; that the operation of stripper wells during this period of time were low margin, due to the price of oil; the unavailability of crews; and the unavailability of tubing, the defendant has shown reasonable diligence, good faith and prudent management in re-storing production.
“6. Notwithstanding the showing of cessation of production for some seventeen months, coupled with a shut off of electricity for a similar period, it is the conclusion of the court that under the circumstances set forth in No. 5 above, coupled with an expenditure in excess of $6,000, as well as the maintaining of a full array of equipment on the lease throughout the period of time in question, negates any showing of an intent to abandon the lease. On the contrary, it leads the court to the conclusion that the cessation of production was temporary and not permanent.”
Judgment was entered accordingly and the costs were assessed three-fourths to the plaintiff and one-fourth to the defendants.
At this point it should be noted that, at the time of oral argument before this court, counsel for both sides were in agreement that, with respect to the type of instruments here involved, no distinction is to be drawn between the phrase “produced in commercial quantities” and the phrase “produced in paying quantities.” Although neither phrase is found in the oil and gas lease, we have no hesitancy in adding that all rights under that instrument terminate when production in paying quantities ceases. Brack v. McDowell, 182 Kan. 368, 320 P.2d 1056.
The trial court held, and we think properly so, that the general principles of law set forth in Wilson v. Holm, 164 Kan. 229, 188 P.2d 899, control the issues involved in this litigation. It was there stated:
“. . . [W]e see no sound reason why the general principles of law, heretofore stated, governing the construction of oil and gas leases containing habendum clauses providing the estate conveyed shall continue after the expiration of its primary term so long as oil or gas is produced in paying quantities, should not be applicable to the construction of a mineral deed containing identical or similar provisions.” (164 Kan. at 237.)
It was there noted that when the primary term of an oil and gas lease has expired and it is being held after expiration of the definite term upon production only, the rule is that all rights under such lease terminate if and when production of oil in paying quantities ceases; but also:
“However, it is also true that a mere temporary cessation of production because of necessary developments or operation do not result in the termination of such lease or the extinguishment of rights acquired under its terms. . . .” (164 Kan. at 237.)
The recent case of Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 553 P.2d 885, held that the determination of whether an oil and gas lease is producing in paying quantities under a thereafter clause is to be made by an objective standard upon mathematical computation. In that case the lessee attempted to show continued production and relied on his efforts to further develop the lease. There was no claim by the lessee of temporary cessation of production. The court noted that the action was one to determine the continued validity of the lease under its own terms and not an equitable action to declare the forfeiture of an existing lease. With this distinction in mind, the court restated the rule that a court of equity has no power to extend a lease beyond the term which the parties themselves have fixed by their written contract. (220 Kan. at 309.) The exception for temporary cessation of production recognized in Wilson v. Holm, supra, was not dealt with in Reese Enterprises, Inc. v. Lawson, supra, and remains a part of the law of this state.
The bottom line question here is whether the cessation of production was temporary or permanent. This is a question of fact for the trial court. (Wilson v. Holm, supra.)
Plaintiff does not challenge the findings of the trial court but does question whether those findings support the conclusion that the defendant Charles S. Ritchie has shown reasonable diligence, good faith and prudent management in restoring production, and whether that defendant’s efforts on the leasehold estate were such as to negate any intent to abandon the lease and justify the conclusion that the cessation of production was temporary and not permanent, all as set forth in conclusions No. 5 and No. 6 hereinbefore related.
Is the conclusion of temporary and not permanent cessation supported by the considerations stated and/or the trial court’s other findings of fact?
“Stripper wells” are wells which produce so small a volume that the gross income provides only a small profit, or sometimes does not even cover cost of production.
In Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P.2d 1039, production ceased in October of 1953 because of excess water. An adjoining leaseholder purchased the lease with the idea of using it as a salt water disposal well. The prior owner had written him in response to his offer of purchase that it had decided to abandon the well. Thereafter, in April of 1954, the new owner started reworking the well with the idea of producing. The trial court phrased the question as whether the production had ceased with the idea no attempt would be made to put it back on pump. The supreme court affirmed a finding of permanent cessation noting that (1) when the well was shut down it was not a commercial well, (2) there was no production for eight months, and (3) for that period no one had the intention of starting production again.
In Wilson v. Holm, supra, production of oil was halted on September 24, 1945, when water broke through the casing. The well continued to pump, however, until November 30, 1945, when it was shut down because of the water. In December the lease was assigned and the new lessee attempted a squeeze job which he did not complete because he did not secure a needed tool. Tubing and pumping equipment, although pulled from the well, were left at the lease. No other efforts were made to rework the well until September 1, 1946, when a new lessee purchased a new lease executed by the real estate and undivided one-half mineral estate owners in August of 1946. The supreme court, in affirming the trial court’s finding of permanent cessation, noted (1) the conceded fact of no production for a nine-month period, and (2) the conflicting claims of “temporary shut down for repairs” and “abandonment for failure to produce in paying quantities with no intention to continue.”
The earlier cases of Caylor v. Oil Co., 110 Kan. 224, 203 Pac. 735, and Kahm v. Arkansas River Gas Co., 122 Kan. 786, 253 Pac. 563, also affirmed trial court findings of permanent cessation. In Caylor, production ceased on a gas lease because of low pressure. Claims of inability to get fuel and workers and delays caused by muddy ground were said to be of no significance because of the express “thereafter” clause extending the lease “as much longer as oil or gas is found in paying quantities.” However, it appears that as to the one well which shut down, there was no hope of renewed production and another well on the lease would have had to be developed. In Kahm, production ceased when the pressure of the pipeline into which the gas from the well was fed to market increased past that of the well, which had been decreasing by its natural processes. The lessee sought another pipeline on which to attach and/or a pumping device to increase the pressure so as to allow a renewed flow into the existing pipeline. Neither had been found at the time of trial on the action to cancel. The supreme court affirmed a trial court’s cancellation, saying that there was no mere temporary cessation, that production had progressively dwindled and renewal was dependent on “various prospective but unassured projects.”
We will not attempt here to review the evidence adduced at the trial with respect to the lessee’s activities on the “Fee” lease beyond what is set forth in the findings of the trial court. Suffice it to say that under all of the Kansas authorities there was ample evidence for the trial court to have held the cessation of production on that lease to be either temporary or permanent. The facts here are quite similar to those in Wilson v. Holm, supra, and in that case, as well as in Wagner v. Sunray Mid-Continent Oil Co., supra, it was noted that there was evidence “from which the court could have found either way” and “there was testimony from which the district court could have found for either party.” The question remains one of fact to be determined by the trial court. (Wilson v. Holm, supra.)
Plaintiff argues that the test is not whether there is an intention to abandon, but whether the lease and the term mineral interest have terminated by their own terms. This is recognized, but both Wilson and Wagner looked to the intention of the operator at the time of shut down as a factor in the determination of whether cessation was temporary or permanent.
It is also of note that the trial court entered a finding of fact that Ritchie estimated the wells were capable of producing twenty barrels a day and that plaintiff offered no evidence to refute this production capability. This finding would seem to indicate that the ability to produce from the lease is a factor. Such is not the case. In Wagner, it is said that “when a mineral deed has terminated because of cessation of production, it is not revived by subsequent production of oil even though it be in the same well.” (182 Kan. at 89.) Along these lines, defendants argue incorrectly that “[p]erhaps the best evidence [of temporary cessation] is the results which have been accomplished by the time of the trial,” and they point to the renewed production in well No. 1, which is the only well clearly shown by the evidence to have been voluntarily shut down for an indefinite period. Such renewed production on that well does not help their cause.
In 2 Williams and Meyers Oil and Gas Law, § 334.8, p. 164, it is said that at least three kinds of evidence are relevant to the question of temporary or permanent cessation: “(1) The period of time cessation has persisted; (2) the intent of the operator; and (3) the cause of the cessation.” Here the period was seventeen months. This is a longer period than in either Wilson or Wagner. In Beatty v. Baxter, 208 Okla. 686, 258 P.2d 626 (1953), the period was almost two years, yet the cessation was found to be temporary. In that case there was evidence that the operator did not intend to abandon production, as he did not pull casing and he resumed as soon as material became available. Thus, it has been said that “no one element can be isolated and held decisive in determining cessation to be permanent or temporary. . . .” (2 Williams and Meyers Oil and Gas Law, § 334.8, pp. 164-165, n. 12.) In the present case, it is clear the trial court believed the intention of the operator to be a temporary shut down because of water seeping in and a breakdown of equipment.
The plaintiff has specified five points on appeal but the one vital issue here to be determined is whether the cessation of production of oil from the “Fee” lease was such as to justify termination of the oil and gas lease and the reversion of the interest in the minerals in place.
There is competent evidence to support a finding of either temporary or permanent cessation and the trial court, after full consideration of the evidence, was drawn to the conclusion that the cessation of production was temporary and not permanent. As there is substantial competent evidence to support this finding, it is of no consequence that there may have been contrary evidence adduced which, if believed, would have supported a different finding. (Rush v. King Oil Co., 220 Kan. 616, 556 P.2d 431.)
It follows that the trial court did not err in entering judgment for the defendants, denying relief under K.S.A. 55-202 and assessing costs.
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Per Curiam:
The petition filed herein alleges that the plaintiff, a news reporter, was, in violation of the first amendment to the United States constitution, found guilty of direct criminal contempt of court for his refusal to give answers to questions propounded to him as a witness in a criminal proceeding in the district court of Shawnee county, Kansas, which answers would have revealed privileged information and further that he was illegally confined and restrained of his liberty as punishment for such contempt.
Upon consideration of the petition with attached memorandum and the answer by respondent, this court, pursuant to Rule 9.01(c), denies the requested relief for the reason the first amendment to the federal constitution provides no testimonial privilege for a news reporter to withhold testimony in a criminal proceeding nor is there any such common law privilege (Branzburg v. Hayes, 408 U.S. 665, 33 L.Ed.2d 626, 92 S.Ct. 2646 [1972]). We do not interpret Bill of Rights § 11 to our own constitution to supply this privilege. If any such privilege is to exist, it must come from the legislature of the state of Kansas.
No due process right is violated by summary procedure in a contempt matter when the contempt occurs in open court in the presence of the judge and it interferes with the orderly conduct of the proceedings (Cooke v. United States, 267 U.S. 517, 69 L.Ed. 767, 45 S.Ct. 390 [1925]). | [
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Harman, C.J.:
William L. Meyer was convicted by a jury of the offenses of unlawful restraint and criminal damage to property. New trial was denied, he was sentenced and now appeals on the sole ground the trial judge should have disqualified himself from hearing the case.
The facts are not in dispute. The victim of the offenses engaged Adrian M. Farver, then a practicing attorney at Burlingame, to assist in prosecuting the charges. Subsequently and prior to trial, Mr. Farver was appointed executive director of the Governor’s Committee on Criminal Administration (K.S.A. 74-6204). The committee consented that he might fulfill his pending professional commitments, both civil and criminal, which he did, including service in the case at bar.
At the time of appellant’s trial in district court the trial judge was administrative judge of the third judicial district and represented it in seeking grants from GCCA for various projects. On the morning of the trial, immediately before the jury was impaneled, the following colloquy occurred:
“Mr. Kirkendoll [Public Defender]: The second thing that I wish to bring up is that it has been pointed out to me, Your Honor, that there is a possible conflict of interest that is involved in this whole case, and it’s really a very touchy area, but Mr. Farver is administering a large sum of money in his other capacity, some of which money the Court has asked for grants from that particular administration, and it has been an on-going grant administered by Mr. Farver at this time; and I am not suggesting that there has been anything improper about this, but at the same time I think that I would like a ruling from the Court as to whether or not any possible conflict exists in regard to this?
“Mr. Farver: I might advise the Court that certainly I do not have the power to make the decisions as to what grants are awarded and what are not. This is a matter of a committee who is composed of members appointed by five different appointing authorities, and I certainly have no vote on that committee.
“The Court: Yes, I know that you administer what they do and that that is the extent of it. I will overrule that, Mr. Kirkendoll.”
After conviction appellant requeste/l new trial on the sole ground the trial judge had failed to recuse himself. He now reasserts the point, saying . . . the circumstances and conditions of his trial were such that it was impossible to preclude the doubt from clouding the fairness and impartiality guaranteed to any defendant by the Constitution of the United States.” This bare statement is not elaborated or amplified in any way beyond that quoted and stated in the initial request for a ruling.
Appellant points to standards which provide:
“The trial judge should avoid impropriety and the appearance of impropriety
and
“The trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned.” (ABA Standards, The Function of the Trial Judge § 1.5 and § 1.7 [1968].)
These principles are not new to Kansas jurisprudence. In In re Estate of Hupp, 178 Kan. 672, 291 P. 2d 428, it was said:
“ . . . Long ago in Tootle v. Berkley, 60 Kan. 446, 56 Pac. 755, we held:
“ ‘The purpose of the law is that no judge shall hear and determine a case in which he is not wholly free, disinterested, impartial, and independent.’ (Syl. paragraph 1)
“Mindful of the fundamental concept from which it stems we are impelled to conclude the corollary of the rule just above stated is that when circumstances and conditions surrounding litigation are of such nature they might cast doubt and question as to the fairness or impartiality of any judgment the trial judge may pronounce, such judge, even though he is not conscious of any bias or prejudice, should disqualify himself and permit the case in question to be tried before a judge pro tem.
“Moreover in view of the foregoing rules, as well as our statute, all must admit it is the duty of this court to maintain and safeguard the right of trial by a fair and impartial tribunal and to be vigilant in seeing to it that every possible semblance of reasonable doubt or suspicion on that question is removed and eliminated to the end that justice may be properly administered.” (p. 676.)
In like vein the rules presently relating to judicial conduct in Kansas provide: “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. . . .” (Canon 3 C. [1], 214 Kan. xcvi.)
Here no effort was made to comply with K.S.A. 20-311d., which prescribes a procedure for judicial disqualification, in that no affidavit was signed by appellant personally nor does it appear the application was timely made under K.S.A. 20-3Ilf. However, where proper grounds exist a judge, with or without an affidavit for disqualification being filed, may on his own motion recuse himself (see Hulme v. Woleslagel, 208 Kan. 385, 493 P. 2d 541).
Was the situation here such that the judge’s impartiality could, reasonably be questioned? We think not. As stated, it appears the duties of the executive director of GCCA are wholly administrative, with all decisions respecting grants resting in the committee (K.S.A. 74-6203). An unrealistic, unsubstantial or illusive interest in the subject matter of an action or an inconsequential association with an attorney in a case has never been held to disqualify a judge, nor should it. Judges not infrequently sit in cases in which participating attorneys also hold other positions requiring contact with the judiciary. This of itself scarcely presents a situation where a judge’s impartiality can reasonably be questioned because of interest in the subject matter of a particular case or bias or prejudice and that is true here.
The judgment is affirmed. | [
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Foth, J.:
This is an appeal from an order adjudging the appellant, Virginia Nichols, guilty of indirect civil contempt of court. The contempt charge grew out of appellant’s failure to comply with an order, in a child custody-habeas corpus action, requiring her to deliver custody of her three children to their father.
On January 5, 1977, the trial court found appellant guilty and sentenced her to the Reno county jail until she purged herself. However, it also stayed the sentence imposed to permit her to purge herself by delivering the children at a specified time and place the following day. At oral argument counsel advised this court that the children were so delivered, and are now with their father.
Appellant was not committed for contempt, and it is apparent she never can be. The issues she presents in her appeal are serious, but they are also academic. Her position is virtually identical to that of F. G. Manzanares in Guerrero v. Capitol Federal Savings & Loan Ass’n, 197 Kan. 18, 415 P.2d 257. Mr. Manzanares, an attorney, was found guilty of indirect civil contempt for failing to pay over disputed money in his hands. He secured his release by placing the money in a joint control account with the clerk of the Supreme Court. The Court denied his attempted appeal, saying (p. 22):
“He thereby purged himself of any possible contempt. There is nothing left upon which this court’s judgment might act. This court in the case of Carr v. Diamond, 192 Kan. 377, 388 P.2d 591, said,
“ ‘Appellate courts do not entertain appeals for such purpose. Reviewing courts do not decide questions which no longer exist merely to make a precedent.’ (p. 380.)”
See also, State v. Conkling, 54 Kan. 108, 37 Pac. 992.
The appeal is dismissed as moot. | [
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Foth, J.:
The issue in this case is whether a wrongful death action by the minor children of a deceased father is barred by the statute of limitations because such an action would be barred if brought by their widowed mother. The question is one of first impression in this state. On defendants’ motion the trial court dismissed the action and plaintiffs have appealed. We reverse.
Plaintiffs’ father, Abe Frost, died on September 6, 1969, allegedly as the result of malpractice by the defendant surgeons, Creighton A. Hardin and Charles Damico. At that time plaintiff Victor Frost was fifteen years old and plaintiff David Frost was twelve. This action was filed on March 31,1975, when Victor and David were twenty-one and eighteen respectively.
Under K.S.A. 60-513 a wrongful death action must be brought within two years of the date of death, and this action would clearly be barred by that statute except for the tolling provisions of K.S.A. 60-515 (a):
“If any person entitled to bring an action ... at the time the cause of action accrued, or at any time during the period the statute of limitations is running, be within the age of eighteen (18) years . . . such person shall be entitled to bring such action within one (1) year after such disability shall be removed. . . .”
David, the eighteen-year-old, was timely under the statute as it now reads. Victor, the twenty-one-year-old, was timely under a similar savings clause inserted when the age of majority was changed from 21 to 18, which gave him until his twenty-second birthday to file his suit. See K.S.A. 1972 Supp. 60-515. Defendants concede as much, and recognize that if. these plaintiffs were the sole surviving next of kin the statute of limitations defense would fail. Therefore defendants base their argument that the action is barred solely on the action and inaction of the plaintiffs’ mother, Natalie Frost.
Mrs. Frost filed a wrongful death action against the defendant Hardin on September 7, 1971. That action was dismissed on the trial court’s own motion, for lack of prosecution, on November 13, 1972. The court refused to reinstate the action on July 24, 1974, and the Supreme Court affirmed the refusal in Frost v. Hardin, 218 Kan. 260, 543 P.2d 941.
Defendants’ motion to dismiss this action was based on the existence and outcome of the prior action between Mrs. Frost and Dr. Hardin. Their theory was that there can be only one wrongful death action brought for a single death, and that Mrs. Frost, by her abortive suit, somehow appropriated and “used up” any action for the wrongful death of Abe Frost. The trial court’s order of dismissal was based on this theory, and defendants reassert it here in support of the judgment below.
Plaintiffs, on the other hand, argue that they were not parties to the prior action, nor was Dr. Damico. Hence, they say, they cannot be barred by principles of res judicata or collateral estoppel even as to Dr. Hardin, and certainly not as to Dr. Damico. To hold that they are barred by an action to which they were not parties, they say, would deny them due process and the equal protection of the laws.
As may be seen, plaintiffs, defendants and the trial court all treated the first suit as a significant operative fact. In so doing we think they were operating from a false premise; the result has been briefs which touch on the real issues only tangentially, although defendants come closer to the mark than plaintiffs.
As observed in Frost v. Hardin, supra, the first action was dismissed under that part of what is now K.S.A. 60-241 (a) (2) which provides: “The judge may on his own motion cause a case to be dismissed without prejudice for lack of prosecution. . . .” (Emphasis added.)
The dismissal was, therefore,, by statute, “without prejudice.” We would suppose that phrase to be commonly understood by lawyers everywhere. “In its general adaptation, the phrase means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as though no suit had ever been brought.” (97 C J.S. 331, defining “without prejudice.”) See also, Hargis v. Robinson, 70 Kan. 589, 594, 79 Pac. 119, where our Supreme Court observed over seventy years ago: “The terms ‘with prejudice’ and ‘without prejudice’ have been recognized by the legislature and by the decisions of this court as having reference to, and being determinative of, the right to the bringing of a future action.”
The current recognition is found in K.S.A. 60-518:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff . . . may commence a new action within six (6) months after such failure.” (Emphasis added.)
The result is that when Mrs. Frost’s action was dismissed in 1972 it was “as though no suit had ever been brought.” (C.J.S., supra.) The two year statute of limitations had then run, but because the failure of her suit was “otherwise than upon the merits,” under 60-518 she had an additional six months from the dismissal in which to file a new action. No doubt she would have done so except that her counsel didn’t learn of the dismissal until eighteen or more months after the fact. By then it was too late to file a new suit, so counsel attempted the reinstatement route with the unhappy result chronicled in Frost v. Hardin, supra.
When this suit was filed, then, Mrs. Frost as the surviving widow was barred from filing a wrongful death action, but simply by reason of the statute of limitations and not by reason of her previous suit. The only result of that suit was to extend her time for filing anew, but by 1975 even the extended time had expired. The situation at that time was exactly as if Mrs. Frost had sat idly by and let the statutory two years expire without doing anything. The question then becomes whether these plaintiffs, who were minors while the statute ran against their mother, are likewise barred because she is.
Defendants argue that there is but a single cause of action and that the statute runs against the cause of action as such, not against the holder of it. They rely on the general principle that where there is a single joint cause of action and one of the joint holders is capable of bringing it, the statute runs against the cause of action even though other potential plaintiffs are under some sort of disability. The cases they cite, by and large, are foreign cases involving joint owners seeking to recover either real or personal property. The one case they cite most nearly in point is Louisville & Nashville Railroad Company v. Sanders, 86 Ky. 259, 5 S. W. 563 (1887). There the Kentucky Court of Appeals held infant children to be barred from bringing a wrongful death action five years after their father’s death because an administrator had been appointed who could have brought the suit within the statutory one year. The court recognized the apparent justice of the minor plaintiffs’ claim, but felt it was outweighed by the public policy demanding speedy settlement of personal injury claims, as evidenced by the legislative assignment to such claims of the shortest possible period of limitation. We are unable to perceive any such public policy in the Kansas statutes which would override the specific tolling provisions of 60-515 (a) — our two year statute for wrongful death is not the shortest on the Kansas books. They cite in addition O’Connell v. Chicago Park District, 376 Ill. 550, 34 N.E.2d 836 (1941), holding that once the statute started running against a cause of action held by a bank it was not tolled by the appointment of a receiver for the bank; and In re Estate of Biege, 183 Kan. 352, 327 P.2d 872, holding that the death of a potential plaintiff tolled the statute until an administrator was appointed. Neither does much to resolve the question here.
Plaintiffs, on the other hand, while not meeting the statute of limitations question issue head on, argue that the interests of the widow and minor children are wholly separate. Therefore, they say, the fact that the widow is barred by her former suit has no effect on the children. They cite Cross v. Pacific Gas & Electric Co., 60 Cal. 2d 690, 36 Cal. Rptr. 321, 388 P.2d 353 (1964), holding that under the California statute each heir has a separate cause of action for wrongful death, hence minor children are not barred merely because the mother is. Under that doctrine, even a judgment on the merits in the mother’s action does not bar the minor children. Arizmendi v. System Leasing Corp., 15 Cal. App. 3d 730, 93 Cal. Rptr. 411 (1971). Nevada takes the same view of its statute. Parker v. Chrysler Motors Corp., 88 Nev. 560,502 P.2d 111 (1972).
The answer, as we see it, lies somewhere in between the Kentucky and California views, and is governed by our own statutes creating the cause of action, K.S.A. 60-1901 et seq.
The relevant statutes are:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom. . . .” (K.S.A. 60-1901.)
“The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has sustained a loss regardless of whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article.” (K.S.A. 60-1902.)
“The net amount recovered in any such action . . . shall be apportioned by the judge upon a hearing, with reasonable notice to all of the known heirs having an interest therein. . . . The apportionment shall be in proportion to the loss sustained by each of the heirs, and all heirs known to have sustained a loss shall share in such apportionment regardless of whether they joined or intervened in the action. . . .” (K.S.A. 60-1905.)
Defendants base their one-cause-of-action theory on Ellis v. Sill, 190 Kan. 300, 374 P.2d 213. That was a wrongful death action brought by a father for the death of his fourteen-year-old son. The defendants demurred on the grounds (1) that all next of kin were indispensable parties, and the boy’s mother was not joined; and (2) that even if she was not indispensable, the father could not sue for more than his one-half of the statutory maximum claim.
That action was brought under our present statutes’ predecessors, particularly G.S. 1961 Supp. 60-3203 and G.S. 1949 60-3204, which encompassed a scheme significantly different from the present statutes in at least two respects. First, priorities were established among potential plaintiffs: (a) the personal representatives, if any; (b) the surviving spouse, if any; and (c) “the next of kin,” but only if there was no one in either of the first two categories. The present statute, it will be noted, authorizes the action to be brought by “any one of the heirs at law.” Second, under former 60-3203, the recovery was distributed to the decedent’s heirs according to the statutes governing personal property in cases of intestacy. (Holmes, Administrator v. Price, 186 Kan. 623, 352 P.2d 5.) Although the elements of damage (mental anguish, filial or parental care, etc.) are similar under both the old and new statutes, distribution under present 60-1905 is “in proportion to the loss sustained by each of the heirs” rather than under the former intestacy formula.
Looking at the statutes then obtaining, the Ellis court reasoned thus: Only one action could be brought in the sense that “a negligent wrongdoer can be compelled to answer but once for a single wrongful death.” (190 Kan. at 305.) That did not mean, however, that all who would share in the recovery had to join as parties plaintiff. Clearly the beneficiaries were not required to join an action brought by a personal representative, and just as clearly the deceased’s children were not required to join an action brought by a widow (surviving spouse) for the benefit of herself and the children. As to an action by the third class — the next of kin — it was recognized that the statute was not so explicit, but the same result was reached:
“True, the statute does not say the action may be brought by one of several next of kin — but neither does it say that all next of kin must join in the action. Under such a situation it is doubtful that the ‘unity of interest’ rule for the bringing of actions generally, is applicable, for if a personal representative or a surviving spouse can maintain the action on behalf of the mentioned beneficiaries it is logical to conclude that next of kin should be permitted to bring it on behalf of other next of kin. The surviving spouse and children of a decedent are his or her next of kin — that is, they inherit from such decedent under the law of descents and distributions. If the surviving spouse can bring the action on behalf of the children, then why, in a case where the next of kin are brothers and sisters, or nephews and nieces, or, as here, the parents — cannot one of such class bring the action for the benefit of the others in that class? As only one action can be maintained against a negligent wrongdoer for a single wrongful death, we fail to see how a defendant can be prejudiced by permitting such to be done.” (190 Kan. at 306.)
It was therefore held that the plaintiff father in that case could maintain the action, and the missing mother was not an indispensable party. It was further held that he could sue for the full statutory maximum, since he sued as a representative of all the heirs (in that case, the mother as well as himself). The distribution of any recovery was of no concern to the defendants, since they could not be held to answer in any other suit on the same cause of action.
The changes in the statute since Ellis do little to detract from the force of that decision, but neither the changes nor the Ellis decision itself compels the conclusion urged by defendants. True, one cause of action is all that may be brought, but one is all that these defendants are being required to defend on the merits. Had Mrs. Frost’s action gone to judgment on the merits, the present plaintiffs would have been bound even though they were not parties. Only in such a case could she be said to have “appropriated” the action, as defendants claim she did. The present statute makes explicit what the Ellis court found implicit, i.e., that any heir would be permitted to join, but that no heir was indispensable. By the same token, Mrs. Frost is not an indispensable party to this action brought by her two children.
The result is that the Kansas wrongful death action is not truly a “joint” action in the. sense that all interested plaintiffs must join and defenses good against one are good against all. This is aptly demonstrated by Cruse v. Dole, 155 Kan. 292, 124 P.2d 470. There the defense of contributory negligence was asserted against a surviving husband, who had been driving at the time of the accident in which his wife was killed. No such defense was available as to two adult daughters, but no evidence was introduced as to their loss. The court said:
“Generally speaking, in an action for wrongful death, recovery is limited to pecuniary loss by the statutory beneficiaries (Pattrick v. Riggs, 148 Kan. 741, 742, 84 P.2d 840). In the case at bar there was evidence as to the loss sustained by the husband but none whatever as to the daughters. . . . Generally in such case, under a wrongful-death statute similar to ours, the husband may not recover, and any amount he would otherwise have received is deductible from the amount recoverable by the survivors as a group, the rest being distributed among the survivors as though the husband did not exist (Restatement, Torts, § 493).” (155 Kan. at 297. Emphasis added.)
The result in that case was a judgment for nominal damages for the two daughters. However, in the earlier case of Schaefer v. Interurban Railway Co., 104 Kan. 394, 179 Pac. 323, minor children were permitted to recover $1,000 for the wrongful death of their mother even though their father, the driver, was non-suited because of his own contributory negligence. On appeal there was no contention that the defense against the father should also bar the children, but only that the deceased wife was also guilty of contributory negligence.
We think an analogous result should obtain here. Defendants have a good statute of limitations defense against any claim by Mrs. Frost, but that does not bar these plaintiffs. They are given the right by statute to bring the action in their own names, and that right was preserved to them by statute during their respective minorities. Any recovery, of course, would be limited to damages for their individual losses, not to exceed the statutory maximum, to be distributed “as though the [wife] did.not exist.” (Cruse v. Dole, supra.)
In view of our conclusion we need not reach the constitutional and other claims raised by the appellants. The judgment is reversed and the case remanded for further proceedings consistent with' this opinion. | [
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Foth, J.:
This is an action for salt water damage to plaintiffs’ crops caused by oil drilling operations on plaintiffs’ Allen county land. The action was based on a 1964 letter from defendants setting forth the agreed method for determining plaintiffs’ loss each year and agreeing to pay it; the action was not based on any claim of negligence in defendants’ operations as lessees. The trial court awarded damages for each year until the underlying lease expired in 1974. Plaintiffs have appealed, complaining about the amount of damages awarded for two of the years involved, and also contending that defendants’ contractual obligation to pay continued so long as crop damage appeared, regardless of the term of the lease.
The damaged land amounts to some 32.21 acres out of 115 covered by an oil and gas lease first granted by the plaintiffs, Mr. and Mrs. Roy C. Monfort, in 1950. The lease contained provisions that “all salt water [was] to be put back into well” and that the “[l]essee shall pay for damages caused by its operations to growing crops on said land.” The defendants R. M., W. D., and C. G. Layton (the Laytons) acquired the working interest in the lease by assignment in August, 1961. (Subsequent assignments and reassignments and the formation of the corporate defendant, Layton Oil Company, are immaterial to the issues presented.)
It was during that summer or fall that Roy Monfort first noticed damage to his crops. The first indication was moisture in low areas even though there had been no recent rain. That fall the soy beans planted in the area yellowed and failed to produce. Mon-fort first discussed the matter with the Laytons’ field foreman and then with the Laytons. It was determined that the damage was probably caused by seepage from a salt water pond constructed by the Laytons’ predecessor lessee, Gordon Willis. In any event, by late 1962 it was agreed that the Laytons would pay for the annual damage. In November of 1962 the damaged area was measured and mapped by the county extension agent, and in December the Laytons paid plaintiffs $1,178.75 for agreed damage to the 1961 and 1962 crops.
Damages for 1963 were settled and paid, and in 1964 the Laytons wrote Monfort the letter on which this suit is based:
“This letter confirms our verbal agreement on the damages to land . . . that was damaged from the salt water pond built by Gordon Willis.
“It is agreed that you will measure the annual yield from this area and if the yield is less than the yield for the area adjoining it because of the salt water damage, we agree to make up the difference.”
For the first two or three years Monfort’s measurements of yields from damaged versus undamaged land were checked by the Laytons’ foreman; after that Monfort was on his own. Damages were claimed and paid without controversy through the 1967 crop year. The claims for 1968 ($904.96) and 1969 ($1,015.95) were not paid until 1972, and then the check was $10 short. No further payments were forthcoming, and this suit was filed in 1974 for the $10 shortage plus damages for the years 1970 through 1974. The petition originally claimed $15,000 for an ticipated future losses, but at trial this claim was dropped and the petition was amended to include damages for the year 1975.
Based on Monfort’s testimony as to actual measurements the court gave plaintiffs judgment for the $10 shortage for 1968 and 1969, $952.00 for 1970, $723.06 for 1971, and $945.00 for 1972. These were the sums prayed for, and plaintiffs make no complaint about this part of the judgment.
As to 1973 and 1974, Monfort testified that he made no actual measurement because the field was too wet. In fact, he didn’t get all his 1974 crop harvested until 1975. He therefore based his claim for those two years ($700.00 each) on an estimate. The trial court found, “The evidence as to 1973 and 1974 damages is far too speculative,” and awarded nominal'damages of $10 for each of those years. This ruling raises plaintiffs’ first claim of error.
The burden was on plaintiffs to prove both the cause and the amount of their damages for those years. As to the latter element, they were required to show at least “some reasonable basis for computation” from which the court could arrive at “an approximate estimate” of their damages. Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667. The trial court could have found a deficiency in proof on both aspects: any failure in the crop might well have been due to the excessive rainfall in those years, and there was no foundation for Monfort’s estimate other than a comparison with losses in other years. However, these losses varied from $578.75 in 1962 to $2,560 for 1975. There was simply no figure for the court to settle on with any degree of certainty. Faced with the trial court’s negative finding that plaintiffs failed in their burden of proof, we could only reverse on this issue if there were uncontroverted evidence compelling a positive finding, or extraneous considerations such as bias or prejudice not even suggested here. Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719; Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 500 P.2d 39. There being neither compelling evidence nor extraneous considerations, we must affirm on this issue.
The second issue presented is whether defendants’ obligation to pay crop damage terminated when the underlying lease terminated in 1974. The original lease contained the customary provision extending its term so long as production continued. In August, 1966, the parties entered into an agreement permitting the lessees to continue the lease until July 1, 1969, by paying a “minimum royalty” of $60 per month, even though there was no production and lessees conducted no operations on any part of the lease. There was apparently a further extension agreement, because Monfort testified that when he stopped getting crop damage checks he told the Laytons he wouldn’t take any more rentals until they paid up, and that in July, 1974, “it expired by just not renewing.” On this issue the trial court concluded:
“The letter of June 18, 1964, merely recites the mechanics which plaintiffs and defendants agreed to for determining the amount which defendants should pay for the damages their operations might cause during the life of the lease.
“. . . The letter agreement of June 18, 1964, became part and parcel of the oil and gas lease, pertaining so long as said lease remained in force. . . .
“It would appear that in 1964 when the parties were trying to settle their differences, which culminated in the June 18, 1964, letter, the plaintiffs had two courses open, i.e. settle as they did or demand damages for the permanent loss of fertility of the 32.21 acres. They chose the former, apparently reasoning that as long as the partnership or its successors operated the lease they, the plaintiffs, could collect annual damages determined as agreed. The lease was terminated and defendants’ obligation to pay under the June 18, 1964, agreement was also terminated. The letter agreement cannot stand alone as an interminable obligation of defendant.”
We agree with the trial court. The evidence all shows that the salt water seepage in 1961 caused permanent damage to the land which cannot be remedied by any known methods; gypsum applied at the Laytons’ expense in 1970 or 1971 proved ineffective in restoring its fertility. Monfort testified that he recognized the damage as permanent as soon as it occurred. The distinction between permanent damage to land and temporary damage to crops is well established in our case law. See, e.g., Gowing v. McCandless, 219 Kan. 140, 547 P.2d 338; Henderson v. Talbott, 175 Kan. 615, 266 P.2d 273; Peterson v. Texas Co., 163 Kan. 671, 186 P.2d 259; and the numerous cases cited in each.
Plaintiff could have sued for the permanent damage to his land at any time within two years after it became apparent, under, e.g., a negligence or nuisance theory. Instead, he elected to claim annual damage to his crops as it occurred. Defendants’ obligation to make that kind of payment depended on contract, and specifically on the lessees’ covenant to pay “for damages caused by [their] operation to growing crops.” As the trial court found, the letter agreement calling for actual measurement of the loss each year merely implemented this covenant of the lease. The question then becomes whether the covenant expired when the lease expired.
The parties offer us no authorities and no insight into this question; the Kansas cases we find are not directly in point. For example, in Hiatt v. Natural Gas Co., 108 Kan. 472,196 Pac. 448, a covenant to pay for damages to crops was held not to cover weight loss by cattle frightened and made nervous by the noise of defendant’s operations in laying a pipeline, even though the ultimate result was to make plaintiff’s grass crop valueless. And in Berns v. Standish Pipe Line Co., 152 Kan. 453, 105 P.2d 893, a covenant to pay any damage to “pasturage” caused by laying a pipeline was held to cover the market value of the lost use of a pasture where plaintiff’s cattle were prevented from full grazing and kept from water. While both cases suggest that a lessee’s liability for incidental damages caused by its occupancy of the land depends on the terms of the lease, neither case deals with contractual liability for future losses caused by a permanent injury to the land. See also, Wendtlandt v. National Cooperative Refining Ass’n, 168 Kan. 619, 215 P.2d 209, where the lessee’s liability for salt water pollution of the lessor’s land was based on common law strict liability and our statute, K.S.A. (then G.S. 1935) 55-121; and Duvanel v. Sinclair Refining Co., 170 Kan. 483, 227 P.2d 88, where it was held that in the absence of a covenant in the lease a lessee had no obligation to remove concrete structures or to restore the land to its pre-lease condition upon abandoning the lease. (But see, Decker v. Jones, 194 Kan. 146, 398 P.2d 325, dealing with a subsequently enacted statute on this subject.)
A closer analogy is afforded by Fast v. Kahan, 206 Kan. 682, 481 P.2d 958. There the lessors sued their lessee for damage to crops caused by the drilling of four wells, and also for the loss of thirty-six trees caused by escaping salt water. As to the first claim the court found that under a covenant similar to that in our present lease the lessors were required to prove “actual damages to growing crops resulting from the drilling of the four wells in question.” (p. 686.) The fact that the lessee had paid $600 as agreed crop damage caused by drilling four earlier wells did not amount to an implied modification of the lease so as to provide for a fixed sum, and did not excuse proof of the new damages claimed. As to the tree loss, liability was predicated solely on negligence, as distinct from the crop damage provision of the lease; the court’s discussion on this point deals only with the several liability of members of an unincorporated association whose agents commit a tort. While the lines from which the salt water escaped were maintained by a producers’ association, the water itself was from the lessee’s wells and the resulting damage was, in the language of the lease covenant, “caused by its operations.” The reason the covenant was not relied upon, it would seem, is that the trees were part of the realty rather than a growing crop, and the damage was therefore permanent damage to the land not covered by the covenant. See, Eyman v. National Union Oil & Gas Co., 153 Kan. 45, 109 P.2d 477.
Under this reasoning the Laytons may have been obligated to pay for the loss of fertility in full when the damage first occurred, depending on proof of causation. Once that obligation had been met, however, plaintiffs could not have created a new crop damage action each year by planting on the damaged land, and then recovering again for the already anticipated poor yield. The parties, however, agreed to treat the damage as recurring crop damage and, as the trial court put it, “settle as they did.”
In Texas we find a recent case strikingly similar to this one, Phillips Petroleum Company v. Morris, 518 S.W.2d 444 (Tex. Civ. App. 1975). There the lessee oil company drilled a dry hole, using 4.23 acres for its drilling site and an access road. No crop was growing during actual operations, but the land had previously been planted in milo and the crop harvested before drilling commenced. When the company abandoned its well it filled in the slush pits and broke up the roadway, but the productivity of the land had been lessened, some of it permanently and some temporarily. The plaintiff landowners sued on a lease covenant which provided:
“The Lessee agrees to pay for damages to crops or improvements caused by operations of Lessee.” (p. 445.)
The trial court awarded damages for depreciation of the land permanently damaged and the rental value of the land temporarily damaged. On appeal the court noted:
“There is nothing in this case concerning negligence on Phillips’ part, and there is nothing in the case concerning excess or unreasonable land use. Phillips’ liability here exists by reason of paragraph 13 of the Oil, Gas and Mineral Lease of December 9, 1968, or it does not exist at all: [Citation omitted.]
“We find no Texas case defining the word ‘crops’ as used in the clause in question. However, Texas courts have made a clear distinction between damage to crops and damage to the fertility of the soil, which in turn, results in a failure to produce or a reduction in production of future crops.” (pp. 445-6.)
After discussing Texas cases which make the same distinction as do ours between crop damage and soil damage (or temporary damage and permanent damage), the court concluded:
“In the light of the foregoing authorities and the plain language of the contract itself, providing for damages to crops or improvements, we hold that lessee was not liable to lessors for the loss of anticipated future crops occasioned by damage to the soil as a result of the activities in question pursuant to Phillips’ lease agreement with plaintiffs.” (p. 446.)
The only case we find to the contrary is The Illinois Pipe Line Co. v. Brosius, 106 Ind. App. 390, 20 N.E.2d 195 (1939). There the defendant had agreed to pay “any damages which may arise to crops” from the laying of its pipeline across plaintiffs’ land. The line was laid in February and March of 1929, when no crops were growing, but it damaged drainage tiles so that crops did not mature properly in each year from 1929 through 1932. Plaintiffs were allowed to recover crop damage for each of those years because first, the phrase “any damages” was found broad enough to encompass consequential as well as direct damages; and secondly, “[t]he parties employed the word ‘crops’ as used in its ordinary meaning and without any modification or reference as to the time of existence, so that the word might refer to any crop or crops.” (p. 395.)
“If it were the intention of appellant to restrict its liability for damages to a particular crop, it should have been so stated when the contract was prepared. We think it sufficiently expressed in the language of the contract that appellant was to compensate appellees for damages to crops, whether such crops were growing at the time of the construction of the pipe line or were subsequently planted.” (p. 396.)
Although we don’t deem it of any particular significance, we note that in our lease the covenant is to pay simply “damages,” not “any damages” or “all damages.” Of more significance is our present lease language referring to damage to “growing” crops, signifying to our mind crops growing at the time of the operations causing the damage.
Under the rule of the Texas case the lease covenant here would not support the present action for “loss of anticipated future crops occasioned by damage to the soil” as a result of the lessees’ actions. The covenant was to pay crop damage, not soil damage. That would have been true even for losses during the term of the lease, were it not for the lessees’ 1964 agreement to pay. That agreement in effect converted the permanent soil damage into annual crop damage; i.e., the parties agreed to treat the soil damage as if it were crop damage caused by current operations, and hence covered by the covenant. By the agreement the lessees assumed an obligation under the lease to pay for damage to yet unplanted crops, and they make no complaint on appeal about the judgment holding them to that obligation.
We therefore hold that the trial court was right in concluding that the 1964 letter was part and parcel of the original lease, that it could not be construed as an interminable agreement binding the Laytons in perpetuity, and that when the lease expired so did the lessees’ obligation to pay annual crop damage.
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Spencer, J.:
In an action to recover for personal injuries and property damages sustained in a car-truck collision at a “T” intersection, the jury returned its general verdict for the defendant and judgment was entered accordingly. Plaintiff filed a mo tion for new trial and renewed her motion for a directed verdict. The trial court sustained the latter, set aside the judgment in favor of the defendant, entered judgment for the plaintiff on the issue of liability, and ordered a new trial on the issue of damages. It was subsequently stipulated that if the case were to be tried to a jury solely on the issue of damages, the jury would return a verdict for the sum of $17,500. On this basis, the court entered judgment in favor of the plaintiff for that amount and the defendant has appealed.
On August 16, 1973, a pickup truck then being driven by the defendant in a southerly direction on 35th Street, and an automobile then being driven by the plaintiff in a westerly direction on Southern Street, collided at the intersection of those streets in the city of Parsons, Kansas. That intersection is a “T” intersection in that 35th Street “dead-ends” at Southern. Neither street had any type of traffic control device at the time of the accident, nor had there been any such device at that location for some eleven years prior to that time. Defendant was beginning a left turn on 35th Street in order to proceed east on Southern. He stated that he was traveling five to ten miles per hour as he entered the intersection, and that he did not see the plaintiff’s automobile until he had entered the intersection; that he was familiar with Southern Street in that he had traveled it on several occasions, and that he had never stopped for traffic from 35th; that traffic on Southern goes right by 35th Street and that he did not stop for Southern when turning from 35th on this occasion because he knew there wasn’t much traffic and he didn’t see any dust. Other evidence was to the effect that traffic on Southern does not stop for 35th Street, and the investigating officer testified that, as far as he knew, Southern was a through street at this point. The city engineer also testified that Southern at this intersection had been designated an arterial street in the comprehensive development plan for the city of Parsons. There was evidence also that, at the time the defendant’s vehicle entered the intersection, the plaintiff’s vehicle was approximately thirty-five feet east of the intersection and traveling at about fifty miles per hour. Plaintiff testified that she did not see the defendant’s vehicle until immediately before the impact. The only skidmarks found were those made by the defendant’s vehicle after the impact. During the trial the jury was allowed to view the scene of the accident and there was evidence from which the jury might conclude that the view from a point east of the intersection on Southern to 35th was unobstructed. The court instructed the jury that at the time and place, and with the vehicles involved in this case, any speed in excess of forty-five miles per hour on Southern Street was unlawful, and there was no objection to that instruction.
In granting the motion for a directed verdict, the trial court prefaced its ruling in part as follows:
“I am not satisfied with the verdict by any means, and I think that possibly this is a case that our statutes do not cover. My whole thinking in this case is that the cause of the accident was the negligence of the defendant, and I submitted it to the jury under the instructions that I felt were proper, but I have the feeling that instructing that this is an open intersection, which the instruction I gave follows the open intersection instruction; that is, if both parties enter the intersection at the same time, then the one on the right has the right of way.
“I don’t feel these instructions really cover this case, Mr. Wachter. I feel under all the evidence in the case that Southern Street is a through street. Every witness that testified, testified that Southern Street was a through street, and the physical evidence shows that Southern Street is a through street.
“The facts were that the defendant knew Southern Street was a through street and had been there before. He was acquainted with this intersection. . . .”
and concluded by sustaining the motion for a directed verdict on the issue of liability and with a factual finding that the defendant was negligent and the plaintiff was free from negligence.
In their briefs and arguments before this court, the parties concede that the “T” intersection here involved is an intersection within the meaning of and governed by K.S.A. 1973 Supp. 8-550, then in effect, which provided:
“(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.
“(b) When two (2) vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
“(c) The right-of-way rules declared in sub-section (a) and (b) of this section are modified at through highways and otherwise as hereinafter stated in this article.”
Subsections (b) and (c) of the foregoing are now K.S.A. 8-1526. [For definition of “intersection,” see K.S.A. 1973 Supp. 8:501, now K.S.A. 8-1428 (a); see also Annotation at 7 A.L.R. 3d 1204, Sec. 10, p. 1221.]
Plaintiff argues that K.S.A. 1973 Supp. 8-552 (a), now K.S.A. 8-1528 (a), which provides:
“Preferential right-of-way at an intersection may be indicated by stop signs or yield signs as authorized in K.S.A. 8-568.” (Emphasis added.)
does not require the placing of stop or yield signs at Southern Street in order to constitute it a through highway, and accordingly, the right-of-way rules declared in subsections (a) and (b) of K.S.A. 1973 Supp. 8-550, supra, are modified and the trial court erred in its instruction No. 7 to the jury, which was in part as follows:
“The laws of Kansas provide that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. When two vehicles enter an intersection from different highways at the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. Persons using a public street or highway have the right to assume that each will obey the law. Each is entitled to rely on this assumption until he has knowledge to the contrary.”
A through highway as defined by K.S.A. 1973 Supp. 8-501, in substance the same as K.S.A. 8-1475, is one “to which vehicular traffic from intersecting highways is required by law to yield right-of-way ... in obedience to either a stop sign or a yield sign, when such signs are erected as provided in this act.”
In Daugharthy v. Bennett, 207 Kan. 728, 486 P. 2d 845, the issue was whether a “slow” sign could provide preferential right-of-way to the street it protected. The court held that it could not, noting that K.S.A. 8-552 (a) provided only for stop signs or yield signs as indicators of preferential right-of-way. The court went on to note that in the absence of a stop or yield sign the duty of both drivers approaching or crossing an uncontrolled intersection is to drive at an appropriate reduced speed. (207 Kan. at 732.)
All are in agreement that there were neither stop nor yield signs erected on either Southern or 35th Streets at this intersection. It appears that the trial court based its conclusion on the evidence that Southern was considered a through street by the investigating officer and the city engineer, as well as on the testimony of the defendant. In the case of Wood v. Melton, 179 Kan. 128, 293 P. 2d 252, the court considered a claim by a defendant in an intersection collision case that there was a recognized custom, practice and usage known to the plaintiff that cars traveling a particular north-south road would stop and yield to any traffic on the east-west road on which defendant was traveling. The court considered the right-of-way statute, which the claim was advanced to defeat, and said:
“It is well settled by the law of this state, and generally, that the alleged custom, practice and usage which is contrary to the existing law cannot be used either to establish or defeat an action and evidence thereof cannot be received.” (179 Kan. at 132-133.)
It was held that the trial court had been correct in striking allegations of such custom from the answer and cross-petition.
The fact that Southern may have been designated an “arterial” street by the city of Parsons and considered as such by others who testified in this cause cannot be allowed to defeat the application of the right-of-way statute in the absence of stop or yield signs placed at that intersection to protect traffic on Southern from traffic on 35th.
Plaintiff directs attention to the provisions of K.S.A. 1973 Supp. 8-551, now K.S.A. 8-1527, which provides:
“The driver of a vehicle intending to turn to the left within an intersection or into any alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.”
She argues that since the defendant admitted that he was turning to the left at the “T” intersection, he was required to yield the right-of-way to the plaintiff’s vehicle. Since the plaintiff was approaching this intersection from the east and the defendant entered the intersection from the north, it is obvious that the vehicles were not approaching from the “opposite” direction and the provisions of this statute do not apply. It is stated in 7 Am. Jur. 2d, Automobiles and Highway Traffic, Sec. 200, p. 751, that:
“Under a statute giving the right of way to vehicles approaching an intersection from the right, a vehicle approaching an intersection from the left is under the duty of yielding to a vehicle approaching from the right which reaches the intersection at the same time or slightly in advance of the vehicle on the left, intending to make a right-hand turn into the intersecting street to proceed in the same direction as the vehicle approaching from the left, or intending to make a left-hand turn into the intersecting street.”
We hold that the provisions of the right-of-way statute (K.S.A. 1973 Supp. 8-550, now K.S.A. 8-1526) were applicable in this case and that portion of instruction No. 7 hereinbefore referred to, and which followed PIK Civil 8.27, was properly given.
Defendant argues that the trial court erred in sustaining the motion for a directed verdict and in making the factual finding that defendant was negligent and plaintiff was free from negligence after the jury had returned a verdict for the defendant. A trial judge may grant a motion for a directed verdict under K.S.A. 60-250. In the case of Simpson v. Davis, 219 Kan. 584, 549 P. 2d 950, it was stated:
“In ruling on a motion for a directed verdict pursuant to K.S.A.60-250, the 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. The same basic rule governs appellate review of a motion for a directed verdict.” (219 Kan. 584, Syl. 3.) (Emphasis added.)
In concluding that the right-of-way instruction as given was proper, we must necessarily conclude that the defendant had the right-of-way. This fact alone, however, is not determinative of the negligence of the parties. The right-of-way at an intersection is not absolute but relative, and its main purpose is to demand care of motorists commensurate with the danger of collision. (Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084.) In Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783, the rule is stated:
“The driver of a motor vehicle upon a public street or highway, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street or highway will comply with the obligation imposed upon them, is not absolved of the consequence of his own independent negligent acts. He is required to regulate his use of the public street or highway by the observance of ordinary care and caution to avoid receiving an injury or inflicting an injury upon another. He has a duty to look ahead and see what there may be within his view which may affect his use of such street or highway and to keep a lookout for other users of such street or highway, and he is in law presumed to have seen and heard that which he could have seen and heard had he kept a proper lookout and exercised ordinary care and caution. His failure to use that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar circumstances is negligence as a matter of law. . . (189 Kan. at 50-51.)
(See also Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272.)
Certainly, there was evidence to support a finding that the defendant was negligent. Despite the fact that his view was somewhat obstructed by foliage, he proceeded into the intersection. It is also noted that he turned into the intersection without stopping, even though he knew that traffic on Southern went “right by” 35th. Although Wood v. Melton, supra, held that evidence of a custom of one street having the right-of-way over another could not be used to “establish or defeat an action” where the custom was contrary to existing law, the defendant’s knowledge of such custom would nevertheless be relevant to show his use of due care. (See American Smelting & Refining Co. v. Wusich, 92 Ariz. 159, 375 P. 2d 364 [1962], noting Wood.) However, Wood also provides that evidence of custom, practice and usage cannot be received, and we note that repeated objections were made to questions asked as to whether Southern was a “through” street. But these are mere observations, and notwithstanding any negligence on the part of the defendant, the determinative factor on this appeal is whether any evidence of plaintiff’s contributory negligence is such that reasonable minds could reach different conclusions thereon.
Southern at its intersection with 35th was not a “through”street and plaintiff cannot be said to have had the right to proceed into that intersection without having diminished her speed and on the mere assumption that she had the right-of-way. Plaintiff testified:
“Well, as I was coining up there, I just saw this flash of this red thing. I didn’t even know it was a truck until later because it happened that fast. . . . The impact was just about as soon as I saw it.”
The jury visited the scene of the accident and each juror was thereby able to make a judgment as to the physical aspects at the scene. The jury was instructed as to the claims of negligence and contributory negligence in failing to yield the right-of-way, failure to maintain proper control, failure to keep a proper lookout, and driving at an excessive speed under the circumstances. Instructions were also given on the duty to drive at a speed no greater than is reasonable and prudent under the conditions then existing and at an appropriate reduced speed when approaching and crossing an intersection, and on the right-of-way statute as discussed above. The question of plaintiff’s contributory negligence is one on which “reasonable minds could reach different conclusions” (Simpson v. Davis, supra) and is a question of fact to be determined by the jury under the circumstances of the case and not a question of law to be determined by the court. (Daugharthy v. Bennett, supra p. 732; Morris v. Hoesch, supra, p. 735.)
We note with interest a case with facts almost identical to those here presented, wherein the Louisiana Court of Appeals said:
. . [Plaintiff] testified she thought she had the right of way. She did not even slow down, she did not observe the [defendant’s] vehicle until after it had entered the intersection, and she failed to yield the right of way. We conclude that [plaintiff] was guilty of contributory negligence barring [her] recovery.” (Carney v. State Farm Mutual Auto. Insur. Co., 335 So. 2d 759, 764 [La. App. 1976].)
The case at bar would appear to be one for which comparative negligence was designed. However, as it occurred prior to the effective date of that act, it must be considered under the old rule that contributory negligence is a total bar to recovery. (See K.S.A. 60-258b.)
The judgment is reversed with directions to reinstate the verdict of the jury. | [
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Foth, J.:
Defendants Dean Allen and D. E. Rosebaugh were convicted by a Shawnee county jury of promoting obscenity. Each was sentenced to six months in the county jail and fined $1,000, and each was paroled from the jail term and ordered to pay one-half the costs. They appealed their convictions to the Supreme Court, which transferred the case to this court for hearing and determination under K.S.A. 1976 Supp. 20-3018 {a).
The convictions arose out of defendants’ operation of Dean’s Bookstore in Topeka in the summer of 1974. In June, July and August of that year plainclothes detectives of the Topeka Police Department made a series of “buys” from the book store. The materials purchased were presented to a district judge in an application for a search warrant. The judge heard sworn testimony from one of the officers, which was duly recorded and transcribed, and issued a search warrant for the defendants’ premises. Officers executing the warrant seized publications thought to be obscene which, together with the 19 previously purchased, brought the total to 158. Multicount informations were initially filed against each defendant, but these were later dismissed. They were replaced by the present information which, in one count, charges both defendants with promoting obscenity based on 144 named booklets and magazines.
Defendants filed two pretrial motions. The first was to suppress the exhibits seized under the search warrant, based on alleged irregularities in the application procedure. The denial of this motion was designated as a point on appeal and was briefed, but the point was specifically abandoned at oral argument and will not be considered further.
The second motion was to dismiss the information, based primarily on the alleged unconstitutionality of the statute under which the defendants were charged. The allegation is that the statute was overbroad and too vague to support a conviction. The trial court overruled the motion, and the correctness of this ruling is, in our view, the dispositive issue on appeal.
The obscenity statute then in force, K.S.A. 1973 Supp. 21-4301, made it a class A misdemeanor under subsection (1) (b) to knowingly or recklessly possess any “obscene” material with intent to sell or otherwise disseminate it. The definition portion of the same statute, subsection (2) (a), provided:
“Any material or performance is ‘obscene’ if, considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and the material is patently offensive and utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be intended for distribution to children or any other especially susceptible audience.”
The origins of this statutory language were recently reviewed at length by our Supreme Court in State v. Motion Picture Entitled “The Bet,” 219 Kan. 64, 547 P. 2d 760 (1976). They need not be reviewed here except to note that the language was designed and intended to comport with the obscenity definition first announced in Roth v. United States, 354 U. S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957), and reformulated in Memoirs v. Massachusetts, 383 U. S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975 (1966). At the time the statute was adopted in 1969, Memoirs was the latest word from Washington on what could and what could not be prohibited as “obscene” under the First Amendment, as made applicable to the states through the Fourteenth.
Since then the United States Supreme Court has further refined its thinking in this area, most notably in Miller v. California, 413 U. S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). That case altered the tripartite Memoirs definition of obscenity, as incorporated in our statute, in two respects. Essentially unaltered is the requirement that the material, taken as a whole, appeal to prurient interest according to an average person applying contemporary community standards. But, as noted by our Supreme Court in “The Bet,” the high court in Miller abandoned the requirement that the material be found “utterly without redeeming social value.” Instead, it is enough that the material, “taken as a whole, lacks serious literary, artistic, political, or scientific value.” (413 U. S. at 24.) To this extent the prosecutor’s task is made easier; a mere modicum of social value will no longer “redeem” an otherwise obscene work.
That change does not concern us here; the one we are concerned with is the change which presented the chief issue in “ The Bet,” i.e., the new constitutional requirement that to be obscene the work must depict or describe in a patently offensive way “sexual conduct specifically defined by the applicable state law.” [Ibid.)
Our statute, as written, did not meet this portion of the Miller standards, arguably in two respects. First, it was not clearly restricted to sexual conduct, but apparently included nudity, among other things, without requiring any sexual connotation. Second, the conduct whose description or depiction would fall beyond the pale was not “specifically defined.”
This, however, was not necessarily fatal. The Miller court said that the required specificity could be found in a state statute as written “or authoritatively construed.” [Ibid.) The conviction in Miller was vacated and the case remanded for a state court determination of whether the California statute there in question could be construed to meet the newly announced standard. The Court also noted that “[o]ther existing state statutes, as construed heretofore or hereafter, may well be adequate.” (413 U. S. 24, n. 6. Emphasis added.)
In “ The Bet” the Kansas Supreme Court accepted this invitation to state judicial action and “authoritatively construed” the statute involved here to incorporate the Miller standards, including a list of “specifically defined” representations or descriptions which are to be deemed obscene. (The 1976 legislature also acted, amending 21-4301 to incorporate at least some of the conduct proscribed under the statute as construed in “The Bet.” Laws 1976, ch. 159, § 1.)
Defendants’ argument is this: their conduct occurred in 1974; the Miller requirement of specificity, either statutory or judicial, had been enunciated in 1973; the Kansas Supreme Court did not read the required specificity into the Kansas statute until “The Bef’ was decided in 1976. Hence, they argue, at the time they acted the statute was overbroad and did not give them the “fair notice” they were entitled to under the due process clause of the Fourteenth Amendment. See, e.g., Papachristou v. City of Jacksonville, 405 U. S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839; Coates v. City of Cincinnati, 402 U. S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686; Palmer v. City of Euclid, 402 U. S. 544, 29 L. Ed. 2d 98, 91 S. Ct. 1563. To apply the 1976 construction found in “The Bef’ to their 1974 conduct, they say, would be a retroactive application which would deny them due process of law.
The state’s response to this argument (and the trial court’s, in overruling the defendants’ motion to dismiss) is that the statute had previously been “authoritatively construed” to meet the Miller standards in State, ex rel., v. A Quantity of Copies of Books, 197 Kan. 306, 416 P. 2d 703 (1966). In that case, operating without a statutory definition, the court was required to determine whether the books in question were “obscene” under the then effective statute, K.S.A. 21-1102. It applied the definition which had but recently been formulated in Memoirs and, characterizing the books as “hard core pornography,” found them obscene under the Memoirs standard.
We are hard pressed to see how that case helps the state here. It was summarily reversed by the United States Supreme Court in A Quantity of Copies of Books et al. v. Kansas, 388 U. S. 452, 18 L. Ed. 2d 1314, 87 S. Ct. 2104, with no reason given except a reference to Redrup v. New York, 386 U. S. 767, 18 L. Ed. 2d 515, 87 S. Ct. 1414. From an examination of the latter we can only surmise that in the high court’s view the books in question were not obscene, but instead were immune from seizure under the First Amendment.
But quite apart from the loss of force necessarily flowing from the reversal, the Kansas court’s opinion itself seems to have little bearing on the issue of specificity. The conclusion as to the books was “that the dominant theme of the material taken as a whole appeals to a prurient sexual interest of the average person and that the material is patently offensive because it goes beyond and affronts contemporary community standards relating to the description of sexual matters.” (197 Kan. at 311.) This, it appears, is nothing more than the test of Memoirs* and our present statute. While the court does say that the books deal with sexual matters, neither in this language nor in the balance of the opinion is there any suggestion that only “specifically defined” sexual conduct is subject to the statute’s ban. The case may limit obscenity under the statute to the area of sex, but if specificity is what we are looking for, we simply cannot find it in A Quantity of Copies of Books.
Our view of that case is reinforced by our Supreme Court’s decision in “The Bet.” After reviewing the history of obscenity regulation in this state and in the decisions of the United States Supreme Court, our court concluded:
“Obscene materials, for the purposes of state government regulation, is no longer meaningfully defined except within constitutional guidelines explicated by the United States Supreme Court. The definition of such term ‘obscene material’ in our state statute appears overbroad and is therefore susceptible of authoritative judicial construction conformable with the guidelines and authorized regulatory pattern articulated in Miller and other federal cases.” (219 Kan. at 70. Emphasis added.)
The court then proceeded to determine whether it was justified in saving the constitutionality of the statute by judical construction, or whether it could only invalidate it and leave the problem to the legislature. Concluding that the former course was justified, the court went on:
“We now authoritatively construe and hold the word ‘obscene’ is a word of constitutional meaning and, as used in K.S.A. 21-4301 and related statutes such as K.S.A. 22-3901, et seq., regulating or prohibiting obscenity, it embraces materials and performances which are patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” (Id. at 71. Emphasis added.)
The “materials and performances” embraced in this definition were those given by the Miller court as examples of the type of conduct which could be “specifically defined” by a state statute, either as written or as judicially construed. It seems apparent to us that if this type of specificity had already been read into our statutes in A Quantity of Copies of Books, as the state urges, the court would have taken an entirely different tack in “The Bet.” It certainly would not have found that the statute at that time appeared “overbroad.” Neither would it have found it necessary, in 1976, to “now” authoritatively construe the statute to incorporate the constitutionally mandated specificity.
It therefore appears that in 1974, when defendants offered their material for sale, the statute under which they were later convicted did not meet the specificity requirements of Miller, either as written or as theretofore construed. The question then becomes whether we can now apply to these defendants a statutory construction of the statute which was adopted (in “ The Bet”) almost two years after this conduct.
In “ The Bet” the construction there adopted was applied to the case then before the court. That was, however, a civil proceeding aimed at enjoining future showings of the motion pictures there involved, and at abating an alleged nuisance. Insofar as the injunction was upheld the judgment operated only prospectively. The court also ordered destruction of the films, presumably on the premise that as concededly obscene materials (under any standards) they could be put to no legitimate future use. Even so, this part of the decision, together with the allowance of attorney fees, struck the dissenters as an imposition of penal sanctions which could not be done retroactively. Here, of course, we are dealing only with penal sanctions.
Other state courts which have faced the Miller requirements armed at best with a Roth-Memoirs statute have fallen into two initial groups. There are those which, like our court, have construed their statute to meet Miller, and there are those which have declined to engage in what they conceived to be judicial legislation. The former group is largely collected, cited and followed in the majority opinion in “The BeP; the latter group is cited in the dissent. The majority notes, however, that in the decisions relied on “the courts have held that their obscenity statutes, though not couched in the language of Miller, should be judicially construed in a manner consistent with Miller and thereby evade constitutional challenge in the future.” (219 Kan. at 70-71. Emphasis added.)
Examination of those nine cases reveals the following: In State v. Papp, 298 So. 2d 374 (Fla. 1974); People v. Heller, 33 N. Y. 2d 314, 352 N. Y. S. 2d 601, 307 N. E. 2d 805 (1973); and Price v. Commonwealth, 214 Va. 490, 201 S. E. 2d 798 (1974), the court determined that the state statute had been authoritatively construed to conform to the Miller standards prior to the criminal conduct under consideration. In each case the conviction was affirmed.
In State, ex rel., v. Vixen, 35 Ohio St. 2d 215, 301 N. E. 2d 880 (1973) and State ex rel. Wampler v. Bird, 499 S. W. 2d 780 (Mo. 1973), the court found the material under consideration to be obscene under Miller standards, and a proper subject for injunctive relief. Procedurally these cases are analogous to “TheBeP in making a prospective application of the Miller standards.
State v. Welke, 298 Minn. 402, 216 N. W. 2d 641 (1974); State v. Harding, 114 N. H. 335, 320 A. 2d 646 (1974); and State v. De Santis, 65 N. J. 462, 323 A. 2d 489 (1974), were all criminal cases in which the court recognized that it was construing the applicable statute to meet Miller for the first time. In each case the court held that the new construction could not be applied to the case at bar, and reversed the conviction before it.
Only in State v. J-R Distributors, Inc., 82 Wash. 2d 584, 512 P. 2d 1049 (1973), did the court apply what was apparently a new construction of an obscenity statute to prior conduct in a criminal case. The preface to the opinion in that case indicates it was written prior to Miller but handed down afterwards. The court noted in the preface that the intervention of Miller and its companion cases caused no change in the result, although it had required some revision of the language of the opinion. The retroactivity issue obviously could not have been raised or briefed by the parties, and it was not discussed in the opinion. Neither was the issue discussed in Gibbs v. State, 255 Ark. 997, 504 S. W. 2d 719 (1974), the only other state case called to our attention where an indisputably new Miller construction of the statute was applied to past conduct.
In the federal field the most troublesome case is Hamling v. United States, 418 U. S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). That was a prosecution under 18 U. S. C. § 1461 for sending through the mails material which was alleged to be, in the language of the statute, “obscene, lewd, lascivious, indecent, filthy or vile.” The defendants were convicted and their convictions were affirmed by the United States Court of Appeals for the Ninth Circuit prior to Miller. Rehearing was denied after and in the light of Miller, and on certiorari the United States Supreme Court affirmed.
To the defendants’ contention that the statute was unconstitutionally vague under the Miller standards, the Court’s answer was that its prior construction of the statute, and particularly that in Roth v. United States, supra, had already limited the scope of the statute to hard core pornography. That was sufficient, it said, to meet Miller. The examples given in Miller of the type of pornography which might be regulated were said to be just that — examples and nothing more. It was not required that those examples or any other conduct be enumerated in the statute, either as written or construed.
“The Miller cases, important as they were in enunciating a constitutional test for obscenity to which a majority of the Court subscribed for the first time in a number of years, were intended neither as legislative drafting handbooks nor as manuals of jury instructions. Title 18 USC § 1461 had been held invulnerable to a challenge on the ground of unconstitutional vagueness in Roth-, the language of Roth was repeated in Miller, along with a description of the types of material which could constitutionally be proscribed and the adjuration that such statutory proscriptions be made explicit either by their own language or by judicial construction; and United States v. 12 200- ft. Reels of Film, supra, made clear our willingness to construe federal statutes dealing with obscenity to be limited to material such as that described in Miller.” (418 U. S. at 115.)
To an argument that “fair warning” requires statutory enumeration of prohibited conduct, based on cases such as Bouie v. City of Columbia, 378 U. S. 347,12 L. Ed. 2d 894, 84 S. Ct. 1697, the Court replied: “But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U. S. C. § 1461, conduct which had not previously been thought criminal. That requirement instead added a ‘clarifying gloss’ to the prior construction and therefore made the meaning of the federal statute involved here ‘more definite’ in its application to federal obscenity prosecutions.” {Id. at 116.)
It may therefore be argued that under Hamling a prior construction of an obscenity statute which merely made it conform to Roth is sufficient also to meet Miller. The New Jersey supreme court, in State v. De Santis, supra, rejected that argument. Speaking of Hamling, the De Santis court said: “A bare majority of the Court found that the federal obscenity statute (18 U. S. C. § 1461) had, well prior to Miller, been ‘authoritatively construed in a manner consistent with Miller (94 S. Ct. at 2905) and that consequently the defendant had fair notice and due warning though his conviction preceded Miller. Doubts may be expressed as to whether the few cases it relied on truly support its finding, but that need not be pursued here since the federal obscenity statute is not our present concern.” (65 N. J. 467-68.)
The court went on to discuss the Minnesota decision in State v. Welke, supra, and the New Hampshire case, State v. Harding, supra. It concluded:
“We are persuaded that the course taken in Welke and Harding is the fairest one and should be followed in the consolidated appeals before us. The statute under which the defendants were convicted satisfied Memoirs but did not meet the specificity requirement of Miller, nor did our judicial precedents satisfy Miller’s demand that the prohibited hardcore sexual conduct be ‘specifically defined by the applicable state law, as written or authoritatively construed.’ 413 U. S. at 24, 93 S. Ct. at 2615, 37 L. Ed. 2d at 430. . . .
“Neither our statute nor our precedents gave the defendants the fair notice and due warning required by Miller, accordingly their convictions must be set aside.” (65 N. J. at 471-72.)
The Minnesota court decided State v. Welke, supra, prior to Hamling. It accepted the Miller invitation to construe, and found the materials in question obscene under any standards. But it went on to say:
“The conviction, nevertheless, cannot stand because defendant did not have that clear notice of the legislative proscription which fundamental fairness requires. The necessity of a clear warning is particularly important, moreover, when a line is to be drawn between protected and unprotected speech.” (298 Minn, at 411.)
“Neither as written nor as construed at the time of this defendant’s arrest did the ordinance comport with the requirement of specificity imposed by Miller. Since fair notice is the basic rationale for the requirement of specifically defined sexual conduct, we are not persuaded that a present construction of the ordinance affords requisite notice with respect to a sale made over 4 years ago.” (Id. at 412.)
The New Hampshire court, also writing before Hamling, said in State v. Harding, supra:
“Since various members of the Supreme Court of the United States have expressed dissatisfaction over their inability to frame definite standards in the area of obscenity so as to provide fair warning to those prosecuted under the obscenity statutes, and since the Miller opinion recognized this inability and stressed the need for specificity under state laws as written or authoritatively construed, it would not be correct to say that the defendant had sufficient warning about the obscene nature of the material in issue and it would be a denial of due process'to convict the defendant in this case under a statute that was construed on review to encompass his acts.” (Syl. 11.)
All three state courts, in talking about “fair notice,” “due warning,” “clear warning,” and “sufficient warning,” are using language generally employed in dealing with allegations of vagueness. While closely related, overbreadth and vagueness are distinct concepts. A statute which is overbroad makes conduct criminal which is constitutionally protected (see e.g., Zwickler v. Koota, 389 U. S. 241, 19 L. Ed. 2d 444, 88 S. Ct. 391, and cases cited at 389 U. S. 250). One that is vague leaves the ordinary person to guess as to its meaning and as to whether any particular conduct is criminal or not. (See, e.g., State v. Conley, 216 Kan. 66, 531 P. 2d 36; Zwickler v. Koota, supra.) The distinction is not sharply drawn in Miller, or in Hamling, or in the New Jersey, Minnesota and New Hampshire cases quoted above. Even though lack of specificity would seem to be an element of vagueness, from Hamling it appears that the specificity requirement of Miller deals solely with overbreadth. If so, the New Jersey court, at least, misread Miller.
One thing is clear, however, and that is that either defect will be fatal unless new life is breathed into the statute by judicial resuscitation. In “ The Bet” our statute was found by our Supreme Court, in 1976, to be “overbroad.” A lifesaving feat of judicial construction was accomplished. Prior to that time, it appears to us, the statute was if not dead at least moribund. We, like the three state courts just referred to, would hesitate to apply a statute which is either facially overbroad or facially vague to conduct occurring before the requisite authoritative judicial construction. As Mr. Justice White, dissenting in Coates v. City of Cincinnati, supra, observed on the question of standing:
“Our cases . . . recognize a different approach where the statute at issue purports to regulate or proscribe rights of speech or press protected by the First Amendment. [Citations omitted]. Although a statute may be neither vague, over-broad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute." (402 U. S. at 619-20. Emphasis added.)
That language was quoted approvingly in Gooding v. Wilson, 405 U. S. 518, 521, 31 L. Ed. 2d 408, 92 S. Ct. 1103.
The issue of standing, to which those remarks were addressed, is also inherent in the facts of this case. Counsel for the defendants conceded on oral argument that the material in question here is “obscene” under any definition, including Roth, Memoirs, Miller, or any combination of them. Our independent examination of random samples of the exhibits persuades us that the concession was advisedly made. This alone, however, does not deprive the defendants of standing to raise the constitutional issue of overbreadth. We are here dealing with First Amendment rights, with respect to which a unique set of rules has been developed. See Gooding v. Wilson and Coates v. City of Cincinnati, supra.
In Dombrowski v. Pfister, 380 U. S. 479,486-7,14 L. Ed. 2d 22, 85 S. Ct. 1116, the Court said:
“[W]e have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. [Citations omitted]. We have fashioned this exception to the usual rules governing standing [citation omitted] because of the ‘. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.’ NAACP v. Button [371 U. S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328].”
We therefore conclude that defendants here, whose conduct would doubtless fall within the prohibition of the statute as narrowly construed in “The Bet,” may nevertheless challenge the statute as being facially overbroad.
Our Supreme Court found in “ The Bet” that such a challenge was meritorious. We therefore hold that, at the time defendants’ conduct occurred, our obscenity statute was unconstitutionally overbroad and they could not be convicted under it consistently with due process.
The convictions are reversed and the case is remanded with directions to discharge the defendants. | [
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Buser, J.:
Damon Rashad Glass was convicted of two counts of aggravated robbery following a bench trial on stipulated facts. Glass appeals the denial of his pretrial motion to suppress evidence. He also appeals his sentence which was calculated using juvenile adjudications in his criminal history. We affirm.
Factual and Procedural Background
At about 9:47 p.m., on November 30, 2005, Callie Richmond, a liquor store clerk working at a liquor store in Topeka, Kansas, reported to police that two black males armed with handguns and wearing white t-shirts, black hooded jackets, and black gloves had just robbed the store. Richmond reported the robbers had left on foot westbound but speculated they were headed to the north. About 30 seconds later, the police dispatcher put out a general call reporting the robbery, the store location, and describing the robbers as two black males wearing white t-shirts and black hooded zip-up jackets, who left westbound on foot around the building.
At the time of the dispatch, Officer James Moore was less than 1 mile from the liquor store. He testified the dispatcher described the two robbers as black males dressed in black and armed with a small black handgun. Officer Moore drove toward the crime scene on a street adjacent to the liquor store, which he described as “kind of like a back way in.”
A few blocks from the liquor store and less than a minute after receiving the dispatch reporting the robbery, Officer Moore noticed a vehicle heading eastbound and traveling away from the liquor store. As Officer Moore drove past this vehicle, he shined a light into it and noticed two black males in the front seat. One was wearing a white t-shirt and the other was wearing a black outfit. No other cars were in the area.
Officer Moore made a u-turn and stopped the vehicle. While Officer Moore was speaking with the driver, he noticed the passenger, Glass, stuffing something between the seat and the console. When Officer Moore asked Glass to exit the vehicle, he noticed a third black man, wearing black clothing, sitting in the back seat. When the back-seat passenger exited the vehicle, a large sum of money fell out of his lap. The three men were arrested. Cash in various denominations, liquor, a handgun, a black sweatshirt, two pairs of gloves, and a black stocking cap with holes cut in it were recovered from the car.
Glass was charged with two counts of aggravated robbery. Prior to trial he moved to suppress all evidence recovered as a result of the vehicle stop. In particular, Glass contended Officer Moore did not have a reasonable suspicion to believe the individuals in the vehicle were involved in the robbery at the time of the vehicle stop.
At the suppression hearing, the parties stipulated to Officer Moore’s testimony at the preliminary hearing. Relying on State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986), the district court found that Officer Moore had reasonable suspicion to stop the vehicle and, as a result, denied the motion to suppress. The district court also denied Glass’ motion to reconsider.
Glass was convicted of both aggravated robbeiy counts following a bench trial on stipulated facts. The district court granted Glass a durational departure and sentenced him to concurrent 48-month sentences. Glass timely appealed the denial of his suppression motion and his sentencing.
The Propriety of the Vehicle Stop
Glass contends: “The district court erred in failing to suppress the evidence found in the vehicle and the resulting statements because Officer Moore did not have reasonable articulable suspicion required to stop Mr. Glass.”
“When considering a district court’s decision regarding the suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. Appellate courts do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.” State v. Greever, 286 Kan. 124, Syl. ¶ 2, 183 P.3d 788 (2008).
The State bears the burden of proof to demonstrate that a search or seizure that led to the discovery of the evidence in question was lawful. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).
A traffic stop is considered a seizure under the Fourth Amendment to the United States Constitution. City of Norton v. Wonderly, 38 Kan. App. 2d 797, 802, 172 P.3d 1205 (1997). To stop a moving vehicle, an officer must have a reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008); see K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
“Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less rehable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information’s degree of reliability. Quantity and quality are considered in the totality of the circumstances — the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.” State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).
On appeal, Glass argues the district court erred in basing its decision on Baker. According to Glass, the Baker decision was predicated on a totality of circumstances that was dissimilar to the facts presented in this case.
In Baker, a gas station attendant was robbed by two black men at gunpoint around 11:30 p.m. Two officers in separate cars were 16 blocks from the scene when the dispatcher reported that a robbery was just committed by two black men dressed in black jackets and blue jeans. The officers proceeded toward the scene of the robbery, each using a different route in anticipation that the robbers might be encountered fleeing the scene.
While en route, one of the officers encountered a vehicle traveling in the opposite direction. The officer shined a light from his patrol car on the vehicle and observed the car to be occupied by three black males, each dressed in dark clothing. Based on the dispatcher s description that the robbers were two black males dressed in black jackets and wearing blue jeans, the officer turned his patrol car around to stop the vehicle. Meanwhile, after passing the police car, the suspect vehicle turned at the next intersection and parked at a curb with its lights out. The vehicle’s lights were then turned on as the officer stopped his patrol vehicle, with emergency equipment activated, behind the suspect vehicle. The officer ordered the occupants out of the car. A large sum of money and a firearm were found in the vehicle, and two of the occupants were eventually convicted of aggravated robbery.
Our Supreme Court upheld the district court’s determination that the officer properly stopped the vehicle based upon a reasonable suspicion the men were involved in tire robbery. 239 Kan. at 408-09. The Supreme Court observed:
“[T]he report was of two robbers, with no indication of how they made their getaway, it was not unreasonable for the officers, who were assigned to patrol duty in the area and were familiar with it, to anticipate that the robbers fled in a waiting automobile with a third person acting as the wheelman.” 239 Kan. at 408.
The Baker court highlighted that it was almost midnight, the officer approached the suspect vehicle in a quiet residential area with no other vehicles in the vicinity, the officer’s use of the light evidenced a suspicion that those streets might be used as an escape route, the officer had observed three black men dressed in dark clothing, and that based on this information and his training and experience, the officer decided to check the vehicle and its occupants further. In upholding the search and seizure, the Baker court also referenced the suspect vehicle’s movements after the officer began to pursue the vehicle. 239 Kan. at 408-09.
In the present case, the district court found “by a narrow margin” that reasonable suspicion existed for the vehicle stop by comparing the facts of this case to Baker:
“The facts are substantially the same here. While Officer Moore acknowledged that he saw two males, one in a white shirt and one in black, this description is substantial enough to raise reasonable suspicion when combined with the other factors. While, as in Baker, this Court believes it may have been reasonable to stop a vehicle with occupants that matched the description of suspects of a robbery even though there was no indication the suspects drove away from the scene, it was not reasonable to rest this suspicion merely on the description of two black males driving in the area. The remaining factors, however, complete the total picture in a way that does constitute reasonable suspicion on the part of Officer Moore. The officer in Baker articulated his reason for stopping the vehicle based upon the fact that it was the only vehicle in the area of the robbery, as here, and that it was located close to the scene of the robbery (within sixteen blocks compared to a few blocks here), and near in time to the robbery.”
In seeking reconsideration of the district court’s adverse decision, Glass argued the court based its decision on only two factors: that two black men were observed in a vehicle in close proximity to the armed robbery. The district court, however, found this argument overlooked tíre additional factors that the vehicle was only a few blocks from the location of the robbery within 1 minute of the dispatch call to the officer, it was the only traffic in the vicinity, and at least one of the occupants wore clothing that matched the description of the suspects. The court also rejected Glass’ argument distinguishing this case from Baker, reasoning that although the vehicle in Baker had pulled off the road and turned off its lights, these movements occurred after the officer had decided to stop the vehicle based on substantially similar facts as presented in this case.
On appeal, Glass emphasizes:
“The Kansas Supreme Court did not indicate in Baker whether [the police officer] had reasonable suspicion to stop the vehicle at the time [he] turned his vehicle around to foEow the defendant’s car. Its ruling was based on the totality of the circumstances, including the suspicious driving following [die pohce officer’s] turn in pursuit.”
It is well settled that, for purposes of Fourth Amendment analysis, a seizure is not effected until an individual submits to pohce authority.
“[A] seizure of a person occurs if there is the application of physical force or if there is a show of authority which, in view of afl the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority.” State v. Morris, 276 Kan. 11, 18-19, 72 P.3d 570 (2003) (citing California v. Hodari, 499 U.S. 621, 624, 628, 629, 113 L. Ed. 2d 690, 111 S. Ct. 1547 [1991]).
Until the occupants of the car in Baker had acceded to the officer’s order to get out of the car, they were not seized. Moreover, until the occupants were seized, the officer could properly consider whatever other circumstances arose in. his assessment of reasonable suspicion. In summary, we are persuaded that in Baker, the vehicle’s suspicious movements after being observed by the police were a factor in our Supreme Court’s determination of the totality of the circumstances.
The State counters that this additional suspicious factor in Baker is not sufficient to meaningfully distinguish Baker from the present case and undermine the rationale for Bakers precedent. This argument has merit.
We conclude Baker is sufficiently similar to the facts of the present case as to provide precedent that Officer Moore had a reasonable suspicion based on articulable facts to stop the vehicle. Several factors, considered together, are important to our holding.
First, as in the Baker case, Officer Moore possessed reputable information that an identified citizen from a known retail store had reported to the police that she had just been robbed by two armed men. The source of this information had an indicia of trustworthiness upon which Officer Moore could appropriately rely. See State v. Slater, 267 Kan. 694, 700-01, 986 P.2d 1038 (1999) (“An identified citizen-informant’s tip is high on the reliability scale and ‘[fjurther weighing in favor of the reliability and veracity of a named citizen-informant is that “the informant is exposed to possible criminal and civil prosecution if the report is false.” ’ ”) (quoting Kaysville City v. Mulcahy, 943 P.2d 231, 235 [Utah App. 1997]).
Second, similar to Baker, Officer Moore observed the suspect vehicle traveling away from the crime scene on a route he knew was a “back way” from the liquor store. Given that the robbery had just occurred, it was common sense to anticipate that the perpetrators would attempt to flee the area using a back way to avoid detection. See United States v. Danielson, 728 F.2d 1143, 1147 (8th Cir. 1984) (“automobile was traveling on a route and in a direction which the officers anticipated the fleeing robbers would take”); United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982) (police stopped armed robbery suspects “on a likely escape route”).
Third, mirroring the facts in Baker, at the time Officer Moore observed the suspect vehicle it was only 1 minute after the report of the just-completed robbery and only a few blocks from the robbery scene. This combination of the short period of time which had elapsed since the robbery and the vehicle’s close proximity to the crime scene made it probable that the suspect vehicle was one of a limited number of vehicles which could be occupied by the fleeing robbers. See State v. Bailey, 247 Kan. 330, 335, 799 P.2d 977 (1990), cert. denied 500 U.S. 920 (1991) (“The proximity of time and place with the crime scene was very close.”); Bryant v. State, 157 Ind. App. 198, 208, 299 N.E.2d 200 (1973) (“the time and spatial relation of the ‘stop’ to the crime” was one factor justifying investigatoiy vehicle stop).
Moreover, the suspect vehicle was the only vehicle observed by Officer Moore in the vicinity of the liquor store late that evening. This fact further increased the probability that the occupants were involved in the robbery. People v. Mascarenas, 726 P.2d 644, 645-46 (Colo. 1986) (Defendants’ vehicle was stopped about 1 minute after the burglary was reported and within 1 block of the scene of the crime heading away from the crime scene in a residential area with little traffic.).
Fourth, unlike Baker, Officer Moore observed two black men inside the suspect vehicle which was identical to Richmond’s description of the number, race, and sex of the robbers. In Baker, the responding officer saw three men in the car, although the victim had reported only two men. In the present case, it was only after the stop that Officer Moore observed a third black man in the rear passenger seat. As our Supreme Court observed in Baker, however, “it was not unreasonable for the officers, who were assigned to patrol duty in the area and were familiar with it, to anticipate that the robbers fled in a waiting automobile with a third person acting as the wheelman.” 239 Kan. at 408.
Finally, akin to Baker, one of the occupants of the suspect vehicle was wearing dark clothing, which was consistent with Richmond’s description of the robbers’ clothing.
In addition to Baker, the Bailey case also shares factual similarities to the present case. In Bailey, a police officer was dispatched to an aggravated robbery and shooting which had just occurred at a gas station. The suspect was described as a black male wearing a yellow baseball cap, who fled the area on foot. Fortuitously, the officer was located near the crime scene. As he drove to that location, the officer observed a vehicle driven by a young black man driving away from the area “nervously looking from side to side as though looking for something.” 247 Kan. at 331. In upholding the subsequent vehicle stop, our Supreme Court observed: “[T]he officer made the stop based on the location, time, description and suspicious behavior of defendant, and the need for immediate action.” 247 Kan at 335.
In considering the propriety of the vehicle stop, we are guided by the following questions referenced by our Supreme Court in Bailey regarding tie weight to be given certain facts and circumstances:
“ ‘Are alternative means of further investigation available, such as a license plate check, closer observation of the suspects, or obtaining additional information? If so, the reasonableness of the stop based on scant facts may well be questionable. Is there a possibility that if law enforcement officers do not act immediately the opportunity for further investigation would be lost? A minimal amount of facts may, under these circumstances, be given greater weight than if the opportunity to act in the future is not foreclosed. What actions would be necessary following the stop for law enforcement officers to determine whether to arrest or release the suspected individual? Will the stop create the opportunity to corroborate a known physical feature of a suspect or clothing description with minimal intrusion on personal security?’ ” (Emphasis added.) 247 Kan. at 334-35 (quoting State v. Guzy, 139 Wis. 2d 663, 678-79, 407 N.W.2d 548, cert. denied 484 U.S. 979 [1987]).
In the present case, given the exigencies of the just-reported aggravated robbery, Officer Moore had only a few minutes and a few blocks to apprehend the robbers before they fled the area. If the officer had not reacted immediately and stopped the suspect vehicle, the unique opportunity to apprehend armed robbers in possession of a weapon, the fruits of their crime, and incriminating evidence would have been forever lost. On the other hand, had the vehicle not contained tire robbers, Officer Moore’s brief vehicle stop would have allayed his suspicions with minimal intrusion on the privacy of tire vehicle’s occupants. See State v. Crawford, 275 Kan. 492, 497, 67 P.3d 115 (2003) (brief investigatory stops of motor vehicles based upon reasonable suspicion are “minimal intrusions” when “balanced against the substantial harm caused by intoxicated drivers”) (quoting Slater, 267 Kan. at 706). Accordingly, as in Baker and Bailey, the urgent circumstances of a just-reported aggravated robbery give greater weight to the articulable facts known to Officer Moore at the time of the vehicle stop.
Under the totality of the facts and circumstances in this case, we hold Officer Moore had a reasonable suspicion based on articulable facts that the occupants of the vehicle had just committed the liquor store robbery which allowed him to lawfully stop the vehicle. The district court did not err in denying Glass’ motion to suppress evidence.
Sentencing
Glass next contends the inclusion of juvenile adjudications in his criminal history, which were neither prior convictions nor pled and proven to a juiy beyond a reasonable doubt, unconstitutionally increased the penalty for his crime beyond the prescribed statutoiy maximum pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Glass acknowledges this issue has been decided adversely to him in State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003); however, he contends this case was wrongly decided.
In Hitt, our Supreme Court held: “Juvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the Kansas Sentencing Guidelines Act.” 273 Kan. 224, Syl. ¶ 2. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position in Hitt. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). We know of no such indication.
The district court did not err in including Glass’ juvenile adjudications in his criminal history without submitting them to a jury for proof beyond a reasonable doubt.
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The opinion of the court was delivered by
AlleN, J. :
The petitioner is confined in the state penitentiary under a sentence of the district court of. Douglas county. He was charged with burglary in a freight-car, and with having stolen therein a crate of tobacco-cutters. After the trial of the case, the jury rendered a verdict as follows :
“We, the jury, in the above-entitled action, find the defendant, Robert Tutt, guilty of burglary in the second degree as charged in the information, and lar-' ceny as charged in the information ; and we find the value of the property stolen to be $6.”
On this verdict the petitioner was sentenced to • con finement in the penitentiary for five years. It is claimed on his behalf that the judgment is void, for the reason that chapter 121 of the Laws of 1871, entitled “An act prescribing the punishment for certain offenses against railroad property, and in railroad-cars and buildings,” is unconstitutional: First, because the act contains more than one subject. The act does not include anything more than crimes and punishments, and is not open to this objection. Second, because § 3 provides a cruel and unusual punishment for the offense of larceny. This section reads :
“If any larceny be committed in any railway-depot, station-house, telegraph office, passenger-coach, baggage-, express-, or freight-car, or any caboose on any railway in this state, the offender may be punished by confinement and hard labor, not exceeding seven years.”
While the punishment prescribed is severe, it is of the kind usually inflicted on offenders. This is not the only case in which larceny of property of the value of less than $20 is made punishable by statute by confinement in the penitentiary. The same punishment is prescribed for larceny in a dwelling-house, boat, or vessel, or from the person in the night-time. The third objection made is that- the law does not have a uniform operation throughout the state. The argument is that tobacco-cutters stolen from a car are no more valuable, and the offense can be no greater, than when they are stolen from a store or any other place. The legislature has deemed the place where and the circumstances under which a larceny is committed of importance. The law applies uniformly throughout the state to all offenses committed under like circumstances, and is therefore not open to this objection.
Aside from tlie question of the constitutionality of the law, it is claimed that'the sentence is void, because this court, in the case of The State v. Guiney, ante, p. 532, held §§ 1 and 2 of chapter 121 of the Laws of 1871 unconstitutional; that the conviction of burglary therefor falls, because there is no valid law to support it; that the jury, by finding the value of the property at $6, have rendered a verdict of guilty of petit larceny only, and that under such a verdict the defendant could not be punished by confinement in the penitentiary. But the verdict finds the defendant guilty of larceny as charged in the information, and the larceny charged in the inform ation is larceny in a freight-car. A fair interpretation of the verdict is that the larceny was committed in a car, and that the value of the-property there stolen was $6. This alone might subject -the defendant under the statute to a sentence for seven years. That imposed by the court, being but for five years, is within the limit authorized by law for the larceny. In this proceeding we cannot consider any mere question of error in the manner of rendering judgment. The sole question is whether the court had the power to render the judgment it did on the verdict, and this question must be answered against the petitioner. His application for a discharge will be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
AlleN, J. :
The first claim of error is in admitting testimony to prove that the refrigerator-cars were constructed with dead-woods which rendered it more dangerous for brakemen to make couplings than ordinary cars. It is said that the defendants were not bound to furnish any particular kind of cars, and the plaintiff, knowing the construction of the cars, assumed the extra hazard. After hearing the testimony on this point, the court instructed the jury that the plaintiff had assumed this risk. It is contended, however, that notwithstanding this instruction, the jury were prejudiced by the evidence, and led to believe that such cars were unnecessarily dangerous, and that the court should not have permitted the jury to hear such testimony at all. We are unable to perceive how the court could have ruled that the plaintiff had assumed the extra hazard until such facts were developed by the evidence, as showed the assumption by the plaintiff of this particular hazard.
It is next contended that the accident was occasioned by the plaintiff’s own negligence ; that he did not im mediately after the injury attribute any fault to Can-aga ; that it was not the duty of Canaga to ride the car down, but to stay with the engine ; that there was, in fact, other switching to do, rendering it necessary for him to accompany the engine. It is very clear to our minds that there is ample testimony to sustain the findings of the jury as well on the question of the negligence of Canaga as on that of contributory negligence on the part of the plaintiff. The jury have answered clearly and unequivocally that Canaga was negligent in allowing the car to run down grade to where the plaintiff was to make the coupling unattended by anyone in a position to answer signals or check its speed. They have also found that the plaintiff could not by the use of his senses determine the rate of speed at which the car was approaching in the darkness ; that the plaintiff was free from fault or negligence, and that the injury was occasioned by the negligence of Canaga. The testimony is ample to support these findings, and we find nothing in the record requiring us to interfere with them.
-Complaint is made of the eleventh instruction, by which the jury were told that if the plaintiff's negligence was only slight, or the remote cause of the injury, he might recover if otherwise entitled to a verdict. Under some circumstances such an instruction is misleading. We have held it to be so in the case of O. K. & W. Rid. Go. v. Prouty, ante, p. 503, decided at this term of the court. It is true, if the plaintiff was negligent in attempting to make the coupling as he did, such negligence was proximate and not remote ; but we have no difficulty to contend with in this case on that point, for the jury have expressly found that he was not negligent at all, and that he could not have ascertained, by the use of hm senses, the rate of speed at which the car was approaching, and that he used all reasonable and necessary care in making the coupling. The instruction complained of would also appear more objectionable standing alone than it does . . ..it » ,, n m connection with the very full and clear instructions accompanying it, by which the attention of the jury was called to the specific claims of negligence, and fairly explaining to them the questions of fact presented by the evidence which they were called on to decide. They have found the plaintiff free from any negligence contributing to the injury. We, therefore, have no question presented to us as to the effect on the plaintiff's right' of recovery of slight or remote negligence on his part, for he was. guilty of none.
The seventh instruction is -also criticized, but we find no fault in it.
We now proceed to consider the most important question presented by the record in this case, namely, whether ¶" 1251 of the General Statutes of 1889, applies as well to receivers operating railroads as to railroad companies. The section reads :
“ Every railroad company organized or doing business ip this state shall be liable for all damages done-to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage.”
■ The trial court charged the jury that this section did apply in this case. It is contended with great earnestness, on behalf of the plaintiff in error, that this section of the statute does not in terms apply to-receivers ; that it gives a cause of action where none existed at common law; that such a statute must be strictly construed ; that it cannot be extended to embrace parties not included within its terms ; that receivers are not railroad companies but officers of the court, and cannot be held liable for injuries received by one employee through the negligence of another. The argument in support of this contention by the-learned counsel for the plaintiff in error is clear and forcible and presents in all its strength as it appears, to us that side of the question, and his position is sustained by decisions of-the supreme courts of Georgia, and Texas under very similar statutes.
It is contended that to include receivers is to interpolate by judicial legislation that which the legislature-has omitted from the statute. Many authorities are-cited denying to the court any such power. It is also-urged that this court;, in the case of Beeson v. Busenbark, 44 Kas. 669, has practically decided this question in accordance with that view. That was an action against Beeson & Selden, who were contractors engaged in the construction of a railroad. They used engines and cars for the transportation of materials and other purposes connected with the construction of the road, and the plaintiff in that case was injured while employed in cleaning the ash-box of an engine. The defendants were not a corporation, but a firm composed of private persons, and were not engaged in the operation of a railroad as common carriers, and it ■was held that they did not fall within the statute. We are entirely satisfied of the correctness of the decision in that case. The distinction between contractors employed in the construction of a railroad, or of some portion of a road, and a railroad company operating under a charter from the state as common carriers of’ freight and passengers is broad and well marked. The position of a receiver, however, is in many respects anomalous. He is not in any just sense the owner of the property, nor is. he personally interested, except in the compensation he receives for his services. On the one hand, he represents the court by which he was appointed, and the property in his charge is, in some sense at least, in. the custody of the law; on the other hand, he represents the interests of the corporation, and also of its creditors. The business which he carries on is public, so far as railways are highways open to the public ; it is private, so far as the profits derived from it are concerned.
It is somewhat anomalous for courts through the instrumentality of receivers to conduct private business for profit, yet the public exigencies and necessities for the continued operation of the great public thoroughfares of the country, no matter what the conflicting rights and interests of stockholders and creditors may be, have been regarded as of such force as to require the continued operation of railroads through the instrumentality of receivers while the rights of parties litigant are being adjusted through the medium of the courts. There is no transfer of interest from the corporation to the receiver, but only a transfer of management. The business is carried on, so far as owners and creditors are concerned, for the purpose of securing a profit. This profit goes into the hands of the receiver to be applied in accordance with the principles of law, and paid to the parties justly entitled to it. The surplus, if any, over operating expense goes exactly where it would go if the business of the company was honestly conducted by its officers. There is still the same necessity for a multitude of employees to keep its properties in repair and -working order, to operate its train service, to collect and disburse its revenues, to keep its accounts, and to protect its interests. Receivers must, in the first instance, always assume control and generalship over the army of workers they find in the employ of the company. While they have the power to employ and discharge, the general rule is that the force they find already organized is retained and used, except where found incompetent or inefficient. The receiver becomes, in effect, the general manager, charged with the general supervision of the interests of the company, not through election by the stockholders or board of directors, but by appointment of the court. He stands charged with the performance, then, of the corporate functions of the railroad company. He causes trains to be run, and freight and passengers, mails and express matter to be transported for hire. He collects all the revenues derived from the service. From them he pays all the employees for their services, and discharges all other operating expenses. In substance, then, the business of a railroad corporation in the hands of a receiver moves on as though under the direction of a general manager, to accomplish the same public purposes, to perform the same services for its patrons, to obtain for its bondholders and stockholders the same revenues as before. The receiver, when acting in pursuance of and in obedience to the orders of the court, incurs no personal liability, and has no personal interest in the profits or losses of the business. The substance, then, of the whole matter is that the railroad corporation is neither dead nor dormant. It is, in fact, alive, active, and performing its proper functions as much as before. Its properties are in existence and utilized for the same purposes as ever. Does then the mere shadow of a receivership operate to transform completely the relations its employees sustain to each other, and to the assets of the company? For the life and body of a corporation are its franchises, its business and its property. It is not a sentient being, and has no tangible or personal existence. A suit against a receiver is in form against an individual, but in substance it -is against the corporate property in his charge. It
is, in all essential particulars, in substance against the corporation itself. We. think this is the view best sustained by the authorities, and most in consonance with reason and sound principles. “ It is not the words of the law but the internal sense of it that makes the law, and our law, like all others, consists of two parts, viz., of body and soul. The letter of the law is the body of the law, and the sense and reason of the law are the soul of the law. Quia ratio legis est anima legis.” (Intoxicating-Liquor Cases, 25 Kas. 763, citing Eyston v. Studd, 2 Plow. 465.) The case of Trust Co.v. Thomason, 25 Kas. 1, was an action against the trust company by an employee, to recover damages under the same section of the statute now under consideration, and although the question as to the applicability of the statute to the case of. a trustee operating the road is not much discussed in the opinion, the principle on 'which a liability was sustained in that case is very similar to that under consideration in this. The Union Trust Company was not a railway company, and therefore not within the letter of the statute, but it was operating-a railroad, and the liability, which could arise only by force of the statute, was maintained in that case. In the case of Hornsby v. Eddy, 5 Cir. Ct. App. 560, (56 Fed. Rep. 461,) the identical question now before us was passed on by the United States circuit court of appeals for the eighth circuit. The statute was held to apply, notwithstanding the Georgia and Texas cases which are cited in the opinion. The case of Trust Co. v. Thomason, supra, was regarded as, in effect, a construction of the statute in favor of the liability of a receiver. This decision was on a demurrer to the petition. The case was afterward tried, a verdict and judgment rendered against the receivers for $15,-000, the case again taken to the court of appeals (07 Fed. Rep. 219) and the judgment affirmed. Judge Caldwell/in delivering the opinion, says :
‘ ‘ An elaborate brief is filed by the plaintiffs in error in support of the contention that the section of the Kansas statute referred to does not apply to receivers operating a railroad, and that, as to them, the fellow-servant rule of the common law still obtains. This question was carefully considered when the case was first here. We are entirely satisfied with the result then reached.”
Although the construction placed on the statute of this state by the federal court is not binding on us, the views of a court of such high character are entitled to most respectful consideratien. The Iowa statute, which in terms applies not only to the corporation, but to lessees and other persons owning or operating railroads, was held by the supreme court of that state, in the case of Sloan v. C. I. Rly. Co., 62 Iowa, 728, to include receivers. In the case of T. & P. Rly. Co. v. Cox, 12 Sup. Ct. Rep. 905, the supreme court of the United States held that, as the statutes of Louisiana authorized an action against the receivers of a railway company for wrongfully’causing the death of a brakeman, aiTaction might be maintained in Texas against the receivers for acts done in Louisiana, notwithstanding the decision of the supreme court of Texas in the case of Turner v. Cross, 18 S. W. Rep. (Tex.) 578. For other cases bearing more or less directly on this question, see Little v. Dusenberry, 46 N. J. Law, 614; Farrell v. Trust Co., 77 Mo. 477; Klein v. Jewett, 26 N. J. Eq. 476; Meara, v. Holbrook, 20 Ohio St. 137. Complaint is made that the verdict is excessive, but we cannot say that it is so.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
MartiN, C. J. :
I. The application to remove the cause to the United States circuit court for the district of Kansas was properly overruled. The mere fact that the defendant was a United States marshal, justifying under a writ of attachment issued from the federal court, did not confer upon him any right of removal under the several acts of congress relating to that subject. The order of attachment was issued under the laws of the state of Kansas, the federal courts having concurrent jurisdiction with the state courts in certain cases ; but no federal question could arise upon the pleadings nor upon the petition for removal, and it was not claimed that the parties to this suit were citizens of different states.
II. The record discloses that the attorneys tried the case with reasonable fairness and courtesy as between themselves, and we see little or no cause for the apparent exasperation of the trial judge against the attorneys for the defendant, and particularly against .Mr. Solomon. Mr. Adams took the leading part on that side of the case, and Mr. Solomon had little to say. He resided in a distant place, and the trial judge seems to have considered him in. the light of an intruder. Presumably neither Mr. Solomon nor Mr. Adams had any interest in the' result of the suit, except such as properly arises from the relation of attorney and client. The rights of the parties to the action were the proper subject of consideration by the court, and those rights ought not to be prejudiced by any ill-feelings of the trial judge against counsel. In the case of Cronkhite v. Dickerson, 51 Mich. 177, it is held that “judges must take great care to say nothing in the hearing of the jurors, while a case is progressing, which can possibly be construed to the prejudice of either party,” and the judgment was reversed because of an unfavorable suggestion of the trial judge, the reviewing court saying, “it is impossible to tell to what extent the defendant’s rights may haye been prejudiced by the remarks.” And in Wheeler v. Wallace, 53 Mich. 355, 356, and 361, it was decided that “error will lie on the demeanor of the trial judge, if it be such as to prevent a fair trial, or prejudice the case upon the facts before the jury,” and that it is improper for him to reflect upon the capacity and memory of counsel to whom clients haye intrusted their interests, and the judgment was reversed for this cause among others. “ Irregularity in the proceedings of the court ... or abuse of discretion by which the party was prevented from having a fair trial,” is one of the grounds specified in § 306 of the code for a new trial, and' this was assigned in the motion of the defendant for a new trial, and is renewed in the petition in error here. An examination of the record leads us to the conclusion that the defendant was probably prejudiced by the conduct and bearing of the trial judge toward counsel. We. think that some of the answers of the jury to.particular questions of fact are against the evidence and too favorable to the plaintiffs, and this indicates that the jury may have been influenced unfavorably to the defendant by the bearing of the trial judge and his prejudice against counsel.
The judgment will be reversed, and the cause remanded to the district court of Sedgwick county for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
JohkstoN, J. :
The main contention of the railroad company is, that the special findings of fact do not justify the verdict of the jury'or the judgment of the court. We cannot confine our consideration, however, to the mere findings returned in answer to the special questions which were submitted to the jury at the instance of one of the parties. Although a great number of questions were submitted at the request of the railroad company, the answers or findings do not embrace all of the testimony, nor purport to completely cover the entire case, as was clone by the general verdict. To determine whether the genera] verdict is sufficiently supported, we must look to the testimony as well as the findings, and when they are considered ■ together they appear to be sufficient to establish a liability against the company, and to justify the result that was reached.
Napole was one of a crew of about 20 men who were employed in surfacing a track for the railroad company near Lansing, Kas., and they were in charge of William Fitzgerald, as foreman, or boss, as he was termed, and of Perry Davis, who acted as second boss and controlled and directed the men when Fitzgerald was not present. They traveled to and from their work on two hand-cars provided by the company, 3.0 of the men usually riding’ on each car. On the day of the casualty they went about 10 miles from their boarding-car to the place of work, and while retürning in the evening Napole and nine others were riding on the front car, accompanied by Fitzg«rald, the boss, while the second boss, Perry Davis, was riding on the second car with the other workmen. Napole stood with his back in the direction the car was moving, working the handle of the car up and down, when suddenly the metal lever to which the handle was fastened broke, throwing him in front of the car, where he was run over and received serious injuries, which resulted in his death a few days afterward. To account for the defect and the injury, it was shown that, on the day before, which was Sunday, several of the men went to Leavenworth for provisions, with the permission of the foreman, but Napole was not one of them, and when they reached that place the hand-car on which they rode was placed so near the main track of the railroad that an incoming train struck it, turned it over, and the lever of the car was found to be bent and injured by tlie collision. There is testimony that, within a brief time and before the car was taken from Leavenworth, the bend or defect in the lever was seen by Fitzgerald, Davis, and also by the assistant roadmaster, J. A. Justice. The injured car was placed on the track, taken a short distance, when Davis, one of the foremen, took the lever from the car and straightened it when it was cold with 'a heavy hammer. Testimony was offered tending to show that the bending and straightening of the lever while cold would have a tendency to break the fibers and materially weaken the iron, and that the resulting defect might not be apparent upon the surface by a casual observation. It does not appear that Napole was informed or had any knowledge of the injury to the lever, and it was shown that the defect was such that he could not have discovered it by reasonable observation. Prior.to the collision the hand-car was in good repair and suitable for the use for which it was intended, and upon the day of the injury it appears that a casual glance would not have revealed anything indicating that the lever was not sound or strong enough for the -use to which it was put. It is contended that the defect in the lever was a latent one, which could not be detected by an ordinary inspection, and that as the company had no knowledge of the defect and it was not discoverable by the exercise of ordinary care, it cannot be held liable. It cannot be said, however, in this case that the company was without knowledge of the impairment of the handcar. The evidence showed that the defect was immediately brought to the attention of both the foremen as well as of Justice, the assistant roadmaster, and Fitzgerald actually rode on the car himself after the lever had been bent and before it had been straightened. One of the witnesses states that when the defect was discovered by the assistant roadmaster, he told Perry Davis, the second foreman, that if he did n't fix it, lie would have it to pay for.
It was the duty of the railroad company not only to furnish reasonably safe machinery and appliances for the operation of its road, but to use reaspnable care and diligence to maintain £jiem condition. Of course, if the defect is one which suddenly appears, the company will not be deemed to be neg-_ Rgen’t unless it has been remiss m testing the appliance, or knew or ought to have known of the defects which caused the injury. In Railroad Co. v. Jones, 30 Kas. 601, a case similar in many respects to the present one, it was said to be the undoubted duty of the company not only in the first instance to make reasonable efforts to supply machinery, tools and appliances safe and sufficient, but also to make like efforts to keep such machinery, tools and appliances in good condition, and to this end must make all reasonable and necessary inspections and examinations. In that case it was held that the foreman in charge of a gang ,of men who were engaged in surfacing a track represented the company, for whose knowledge or means of knowledge the company is responsible. Here, the company cannot escape responsibility, for several of those representing it had actual knowledge of the collision and that the lever was bent and out of repair. Although possessed of this knowledge, no pains were taken to ascertain the effect of the impairment, and instead of sending it to the shop to be repaired in an approved way so' as to make it reasonably safe for use, it was straightened while cold, and ill a manner likely to weaken and break the fiber of the iron. While it was apparently sound and fit for use after it had been straightened, the fact is that it was weakened and that it did break by reason of the impairment, and the injury of Napole was the result. While the defect was not easily discoverable after it had been straightened, and while Napole did not discover it, it had been discovered by those in charge of the men, and the company is bound by the notice of such defect.
There is some contention that the special findings are inconsistent with one another and with the general -verdict, and that some of them are not sustained by the testimony. There were 108 questions submitted to the jury, some of which -were involved and puzzling, but while there is some confusion in the answers we think a fair construction of all the questions and answers shows that the jury understood the issues in the case, and that their findings are reasonably consistent with one another and with the general verdict. In regard to the knowledge of the company, it is claimed that the jury found that the assistant roadmaster was the person upon whom notice should have been served in order to bring knowledge of the defect home to the company, whereas the notice was in fact brought to the foreman of the crew. The jury did find that the assistant roadmaster was the agent to whom reports were made in respect to defects in machinery or tools that became in bad order for use, but they also found that notice of the defect was brought home to Fitzgerald, the foreman, and that he was an agent of the company upon whom notice of the defect could be properly served in order to bind the company. They found that while there was no evidence as to what opinion Fitzgerald held as to the safety of the lever after it had been straightened, he saw the car and rode upon it after it was injured, and therefore had knowledge of its defective condition. This finding is explained by the testimony that Fitzgerald not only saw the car shortly after the lever was bent, but that he rode upon it for a short distance before the attempt was made to repair it. Aside from this, we have testimony that notice of the defect was brought to the attention of both the assistant roadmaster and the other foreman, and although all three knew of the defect, all were aware that it had not been sent to the shops to be restored to a reasonably safe condition by proper repairs. We think the testimony is sufficient to sustain the special findings of the jury and the general verdict which they returned.
It is next contended that the action cannot be maintained by the widow who is and was a resident of Missouri, because the injury occurred in August, 1888, before the passage of § 1 of chapter 131 of the Laws of 1889, authorizing the bringing of an action under § 422 of the code by the widow where no personal representative had been appointed. The later provision of the statute is supplemental to section 422, and is intended to make an existing cause of action available where the deceased was a non-resident of the state, or where, being a resident, no personal representative is or has been appointed. It has been held that the amendment does not create a new cause of action nor impose any limitation on an existing one.
It simply changes the remedy, by providing that the cause of action given by § 422 shall not be lost on account of the non-resi-
dence of the deceased or the non-appointment of a personal representative. (Berry v. Railroad Co., 52 Kas. 769.) No error was committed by tlie court in overruling the demurrer «to the petition of the ■widow or in refusing to sustain the objection of the railroad company to all evidence offered'by her.
We find nothing substantial in the objections to the instructions nor in the claim that the conduct of counsel for defendant in error in the argument of the case to the jury was prejudicial.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
MartiN, C. J. :
I. On the trial of the case the plaintiffs were permitted, over the objection of the defendants, to testify to a transaction with their father whereby they claimed ownership of the property levied on by the sheriff. It is asserted by the plaintiffs in error that this ruling was erroneous, and whether it was so or not depends upon the construction to be given to the word “assignee,” as used in § 322 of the code of civil procedure, which, so far as necessary to the consideration of this case, reads as follows:
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to .the cause of action immediately from such deceased person. . . .”
Were the sheriff and the attachment creditors the assignees of James.H. Beard within the meaning of said section? Webster defines “assignee” as —
‘ 'A person to whom an assignment is made ; a person appointed or deputed by another to do some act, perform some business, or enjoy some right, privilege, or property; as, an assignee of a bankrupt. An as-signee may be by special appointment or deed, or be created by law ; as, an executor.”
Worcester, citing Burrill as authority, says an ‘ ‘ assignee ” is :
‘ ‘ One to whom any right or property is assigned ; one who is appointed by another to do any act; one to whom some right or .property is transferred, or upon whom either devolves by the mere operation of law. In this sense, an executor is the assignee of the testator ; and an administrator, of the intestáte.”
Bouvier defines ‘‘ assignee ’ ’ as follows :
. “ One to whom an assignment has been made. Assignees are either assignees in fact or assignees in law. An assignee in fact is one to whom an assignment has been made in fact by the party having the right. An assignee in law is one in--whom the law vests the right; as, an executor or administrator.”
Our act concerning the construction of statutes (ch. 104, Gen. Stat. of 1889) requires that —
“Words and phrases shall be construed according 'to the context and the. approved usage of the language ; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.”
We think that the common acceptation of the word ‘ ‘ assignee ’ ’ is limited to an assignee in fact, and does not comprehend an assignee by mere operation of law. If it had been intended by the legislature to include the latter sense, it would have scarcely been necessary to use the words “executor, administrator, heir at law, next of kin, or surviving partner,” for the word , “ assignee ” would be broad enough to embrace them all, and therefore, the word'“ assignee ” was used in its more limited sense of an assignee in fact. It would be regarded as a strained construction of the word to extend it to a sheriff, or the creditors whom he represents, by reason of the levy of an attachment upon the property of a defendant. The attachment-creditors could not even maintain an action to set aside fraudulent transfers of the property until after the reduction'of their claims to judgment. ( Tennent v. Battey, 18 Kas. 324.) We are not referred by counsel on either side to authorities which we consider directly in point under a statute like ours, and we have reached a decision as of first impression, and hold that the court did not err in the admission of this testimony.
II. Testimony was offered on the part of the defendants below tending to show that James H. Beard, in obtaining extensions after April 5, 1888, of the notes on which he was bound as surety, represented that he still owned the cattle and other property on his place ; that he made like representations to other persons ; and that at 1 o’clock of the night before the officers levied on the property, he went to the house of Mike Beard, a relative, and told him “that Lafe Staley had run all his cattle- out of the country and was ‘busted up,’ and that his creditors were going to attach in the morning, and that he had turned all of his property over to his boys to save himself,’’ and that he (Mike Beard,) “must also put his property out of his hands or it would be attached.’’ All testimony of this character, as well as the offer to prove that prior to the attachment James H. Beard conveyed all his real estate liable to judicial process to his said sons was excluded, presumably on the ground that the acts and "declarations of James H. Beard after he had transferred the personal property to his sons was not admissible against them, and that the transfer of the real property at a time subsequent to the transac tion relating to the personal property could not affect the latter. But it should be borne in mind that the defendants below did not admit that the personal property was transferred in April, 1888, but contended that it did not take place until within a few hours prior to the attachment, and that the real estate was conveyed to the sons at about the same time, so^that the elder Beard divested himself of all means of meeting his obligations; and this was a family arrangement, not in the usual and ordinary course of business. We are of opinion that the testimony was admissible, although James H. Beard had never been a partjj- to the action. In cases of transfers of property alleged to have been made with intent to hinder, delay or defraud creditors, two steps are usually necessary : the first being to prove the fraudulent intent of the debtor, which may be made apparent by his acts and declarations, even though not a party to the action ; the second, to show that the defendant vendee was not a purchaser for a valuable consideration, or that he knew or had reason to believe that the vendor was acting in bad faith toward his creditors. It should be remembered that after April 5, 1888, the cattle and hogs were kept just as before, without any open and visible change of possession, thus enabling James H. Beard to obtain credit on the strength of his possession and apparent ownership, although he may have actually sold the property to his sons. But there was some evidence tending to support the theory of the defendants below that the transfer was of very recent date, even if not in the very face of the officer on the way with his writs. The court should have allowed the introduction of evidence in support of each of the conflicting theories under proper instructions to the jury as to its consideration. For authorities on this subject see Bump, Fraud. Conv. (3d ed.) 579-584 ; 1 Greenl. Ev. (14th ed.), §§ 190, 191; Smith v. Boyer, 29 Neb. 76 ; Gillett v. Phelps, 12 Wis. 392, 400 ; Mamlock v. White, 20 Cal. 598, 600 ; Heartman v. Diller, 62 Pa. St. 37,43 ; Ferbrache v. Martin, 32 Pac. Rep. (Idaho) 252, 253.
Some complaint is made of the instructions given by the court to the jury, and we think they were not as full and comprehensive as they should have been; but, if plaintiffs in error asked any instructions, they do not appeal1 in the record, and we would not feel justified in interfering writh the judgment on the ground of instructions alone.
For errors of the court in excluding evidence as hereinbefore stated, the judgment of the district court is reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
This is a proceeding in quo ivarranto, brought by the attorney general in the name of the state, against" John W. Breidentlial, to determine his title to the office of bank commissioner, and to oust him therefrom. The facts in the case, about which there is no controversy, are stated in the plaintiff’s petition, and the questions for determination arise upon a demurrer of the defendant to the petition. It appears that the legislature of 1891, shortly before its final adjournment, enacted a law providing for the organization of banks and the regulation of the banking business, and it contained the following provision :
‘ ‘ The governor shall appoint, by and with the advice and consent of the senate, a bank commissioner for the state of Kansas, whose term of office shall be four years and until his successor is appointed and qualified.” (Laws of 1891, ch. 43, § 21.)
This act, although approved March 10, 1891, did not take effect until March 21, 1891, and at that time the legislature liad adjourned, and there was no session of the senate to confirm an appointment made after the law became operative until the next regular biennial session, which convened in January, 1893. On March 21, 1891, the day on which the act took effect, Gov. L. U. Humphrey appointed as bank commissioner Charles F. Johnson, who it is admitted was duly qualified and eligible to take and hold the office under the provisions of law, and a commission as bank commissioner, under the seal of the state, was issued to him. The appointment was not confirmed by the senate, but immediately upon receiving his commission, Johnson duly qualified as bank commissioner, took possession of the office, and con- tinned to exercise all the duties and prerogatives thereof until February 13, 1893. On February 8, 1893, Gov. L. D. Lewelling, who had succeeded Governor Humphrey, instead of renewing the appointment of Charles F. Johnson and sending his name to the senate, nominated and appointed for the same office John W. Breidenthal, a citizen and elector duly qualified and eligible to take and hold the office to which he was appointed. That nomination and appointment were submitted to the state senate then in session, and were by the senate, on the 13th day of February, 1893, confirmed. Whereupon the governor issued to Breidenthal a commission, and he immediately took possession of the office and has ever since exercised all the duties and prerogatives of the same, and still retains possession of the office, exercising its duties and privileges and receiving the emoluments thereof. The message of the governor nominating and appointing John W. Breidenthal to office is as follows :
“I have this day appointed John W. Breidenthal as bank commissioner of the state of Kansas, and respectfully request his confirmation by your honorable body. Very respectfully,
L. I). LbweluiNG, Governor.”
After the appointment and confirmation of Breiden-, thal, he qualified in the manner and form prescribed by law. Four years from the time that Charles F. Johnson was appointed, the senate of the state not being in session, Gov. E. N. Morrill appointed to the office of bank commissioner C. S. Jobes, a citizen and elector who was duly qualified and eligible to take and exercise the duties of the office of bank commissioner. There is no claim that Breidenthal has resigned or been removed, nor that he has forfeited or surren dered the office. His claim is that he was the first person regularly appointed to the office, and that in the absence of any provision fixing the beginning of the term, he was appointed for a full term of four years, which will not expire until February, 1897. The state contends that it was the duty of the governor to fill the office immediately after the law became effective, and that having filled it, the first term began with the appointment of Johnson in 1891, and that as the term could not under a constitutional limitation be longer than four years, the term ended on March 21, 1895, when it became the duty of the governor to make another appointment for the second term.
There is no statute which fixes the time for the beginning or ending of the official term, and no provision with respect to the filling of vacancies in the office or term, nor is there a statute in regard to the appointment of a bank commissioner, the duration of the term, or the tenure of office, other than that which has been quoted. It provides, as'we have seen, that the term shall be four years, “ and until his successor is appointed and qualified.” It is well argued that the legislature cannot- by any method extend the fixed term of an office which is limited by the constitution. Under § 2 of article 15 of the constitution it is provided that —
‘‘The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making the appointment, but the legislature shall not create any office the tenure of which shall be longer than four years.”
It seems to be conceded by the parties that the legislature did not intend to enlarge the term or to extend it beyond the fixed period of four years. It is said that the hold-over provision was not intended to enter into or to be descriptive of the term ; but upon grounds of public convenience and necessity, and in order to prevent an absolute vacancy, the law will recognize the incumbent as an officer de facto until his successor is appointed and qualified. It is the opinion of the court that, as a “term” means a fixed and definite period of time, the time definitely fixed in the law at four years is the term of office, and that the holdover provision, whatever view may be taken of the same, does not invalidate or destroy the entire section with reference to tenure. The appointing power would in any event have the right to fill the office at the end of four years, and the right to exercise that power returns to the appointing power at intervals of not more than four years.
Then we have the remaining question of when the term begins. In the absence of a statutory provision upon that subject, it has been held that where a statute authorizes the appointment of an official and declares the tenure of the office, and is silent on the point as to the beginning of the first appointee’s term, the commencement of the official term begins to run from the date of the first' appointment. (Hale v. Bischoff, 53 Kas, 301.) The statute authorizes the governor to appoint a commissioner, but expressly provides that it shall be done by and with the advice and consent of the senate. No provision is made with respect to the first appointment in case there is no senate in session, nor for making an appointment to fill a vacancy which occurs when the concurrence of the senate cannot be obtained. The constitution provides for only biennial sessions of the legislature, and all know that an extra session of that body is rarely called or held. The law providing for the regulation of banks and the appointment of a commissioner was enacted for a public purpose and from a supposed public necessity. It was manifestly the intention of the legislature that it should become operative at once, and whether it went into effect before or after the adjournment of the legislature, that a commissioner would be appointed to execute and carry out its requirements. It was finally passed and approved in the closing days of the legislature, and was not published until several days after the final adjournment. The language and nature of the act indicated an expectation on the part of the legislature that the act would go into immediate effect, and that an officer would be appointed to execute its provisions. Evidently the legislature did not intend that the office should remain vacant for two years after the act went into effect, and as a matter of necessity must have intended that the governor, who by the terms of the act is authorized to appoint, would supply not only the original' vacancy but any other vacancy that might occur when the legislature was not in session. It is true that officers are to be chosen or appointed in the manner prescribed by law. It would seem from the language of this act, as well as from the powers conferred upon the governor by the constitution and laws, that he would be warranted in filling the original or other vacancy in the office when the senate was not in session and had no opportunity to unite in making the appointment. It is contended by the state, and apparently conceded by one of the counsel for the defendant, that this is an implied executive function of the governor, but it is further contended in behalf of the defendant that it is only a temporary or provisional appointment, warranted only by the necessities and conveniences of the public. It is claimed by the defendant, and a majority of the court are of the opin ion, that no regular appointment could be made which would fix the beginning of the first regular term, except by the concurrent action of the full appointing power. It is said that the appointment first made by the governor was only to fill what, has been termed an original vacancy, and is a mere temporary appointment, depending upon inference and implication rather than upon any express provision of law, and is only justified by necessity and because the law abhors an actual vacancy. It is treated as an exceptional vacancy, which forms no part of a regular term, and that under the decisions of this state the making of such an appointment is only a temporary provision to continue until the regular term commences. (Hagerty v. Arnold, 13 Kas. 367, and cases cited.)
There are numerous authorities, which it is unnecessary to cite, holding that officers must be chosen in the manner prescribed by the law, and the view of a majority of the court is that, the legislature having declared that the appointing power resides in the governor and the senate, there was no regular appointment for the term mentioned in the statute until the choice was made by those whom the statute invested with the power of appointment. As the commencement of the official term is to be fixed by the appointment, it is held to mean a full legal appointment, and not a mere special or temporary appointment made to fill an original vacancy; and it is said that if any other view is taken, it would be within, the power of the governor to make every appointment at a time when the legislature was not in session, and in that way the senate would be entirely deprived of any participation in the choice of'a bank commissioner, and thus defeat the manifest purpose of the legislature as to the method of choosing that officer. The con- elusion is that, as tlie appointing power defined by the statute consists of the governor and the senate together, and as the governor and senate did not act jointly until February, 1893, at the time when the defendant was apj>ointed and confirmed, it follows that he was the first commissioner regularly appointed for a full term, and that the term for which he was chosen wall not expire until February, 1897.
The writer is unable to concur in this conclusion, and his views, very briefly stated, are as follows : When the office of bank commissioner was created it was ipso facto vacant, and there being no senate to advise and consent, it was the duty and within the power of the governor to fill the office by appointment. Whether this is to be treated as an exceptional and temporary provision, and whether or not it is justified on the mere grounds of public convenience or necessity, it must be conceded that the appointment of Charles F. Johnson, on March 21, 1891, was legally made and invested him with all the powers which he could have exercised if there had been a confirmation. There were no limits on his power, and his duties and responsibilities were the same as if the choice of the officer had been shared by the senate. He was lawfully in office, his right and authority -were recognized by all the departments of the government, and he exercised the duties of the place with the general acquiescence of the people of the state. Having been legally appointed and lawfully invested with the office, and it having been decided that where the law is silent about the commencement of a term a legal appointment fixes the beginning of the first term, it is the opinion of the writer that the first term of the office commenced upon March 21, 1891. Under the ordinary practice, this appointment entitled Johnson to hold the office until the senate convened, at which time it was the duty of the governor to renew the appointment to the senate and obtain the concurrence of that body. The person then appointed and confirmed would serve out the unexpired portion of the four-year term. Under the other theory, if the appointment of Johnson had been renewed according to the usual practice, and the appointment confirmed, he would have been entitled to hold the office until 1897, a period of about six years. In the opinion of .the writer, Breidenthal was chosen to fill out Johnson’s unexpired term, and his right to the office terminated on March 21, 1895.
As the majority of the court hold that his tex’m does not expire until 1897, judgment will be awarded in favor of the defendant.
AixbN, J., concurring.
JOHNSTON, J., dissenting. | [
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The opinion of the court was delivered by
MabtiN, C. J. :
The original suit was brought July 7, 1890, by said James B. Wood against said John Norton and William Muff and. Henry Muff to recover judgment upon a promissory note executed by said William Muff in favor of said Wood, and to foreclose a mortgage on real estate given to secure the same. It was alleged in the petition that, after the execution of the note and mortgage, William Muff conveyed the land to Norton and Henry Muff, “who, as a part of the consideration thereof, agreed' to pay the amount due” Wood. Personal service was made on Norton and William Muff, but Henry Muff was not served. Norton and William Muff made default. On October 1, 1890, at September term, Wood obtained a personal judgment by default against William Muff and Norton for $2,398.95, bearing interest at 12 per cent, per annum, and costs of suit; and a decree of foreclosure of said mortgage was entered, it being found by the court that the land was then owned by Norton, “who, as part of the purchase-price thereof, assumed and agreed to pay the said sum found due to the plaintiff. ’ ’ In March, 1891, Norton appeared in court by counsel, and filed his motion for the vacation of said personal judgment as to him, on the ground that, although he had taken the title to the land subject to the mortgage, he had never assumed or agreed to pay the in debtedness, and that the allegation to that effect in the petition, was untrue, but he knew, nothing of the same, not suspecting that any false averment would be made for the purpose of fastening a personal liability upon him. The motion was overruled by the court, Norton excepting; and he has presented his petition in error to this court for review against Wood alone. A motion is now interposed by Wood to dismiss the case because William Muff is not made a party.
The judgment against Norton and William Muff is joint. If, after the sale of the mortgaged property, a balance should remain unpaid, a general execution might be taken out against both for the collection of the residue. If collected from William Muff, he would have a valid claim against Norton for contribution. If we were to reverse the personal judgment, and Norton should be relieved from it, the whole weight of the residue would be cast upon William Muff. We cannot so shift the burden upon the latter in his absence. A condition precedent to such a change of responsibility by order of this court is that he be brought into it as a party in due time. This is familiar law here. (Paving Co. v. Botsford, 50 Kas. 331, 332, and cases cited; Steele v. Baum, 51 id. 165 ; Loan Co. v. Lumber Co., 53 id. 677.) If the case were here on its merits, the result might not be more favorable to Norton. He was guilty of gross negligence in permitting judgment to be taken by default, without even knowing the nature of the claim made by Wood. He employed a lawyer at the second term, after his case had been disposed of. This was very late.
But the petition in error must be dismissed for want of á necessary party.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J. :
W. S. Richardson and John A. Jamison were candidates for the office of trustee of Mound Yalley township, in Labette county, prior to the election of 1893. These candidates were voted for at the election. After the election the canvassing board of the county declared John A. Jamison elected. Richardson contested the election. The contest court declared Richardson elected. On January 13, 1894, J amison commenced an action in the district court to reverse the decision of the contest court. Such proceedings were had in that action that the court found the contest court had committed error, set aside its action, and, upon the request of the parties, held the matter for trial. The action being called for trial, the county cleric was called as a witness, and produced the ballots cast at the election in dispute. From the evidence, the court found John A. Jamison had received 168 legal votes, and W. S. Richardson 167 legal votes, and that John A. Jamison had been elected to the office of trustee of said township. Judgment was entered accordingly. Richardson excepted, and brings the case here.
The trial court ruled that the ballots could not be counted if marked other than the way prescribed by chapter 78, Laws of 1893, and therefore, upon the objection of Jamison, refused to count certain votes cast for Richardson that were not properly marked in the designated square or place by the voters with a cross (X) • Within the authority of Taylor v. Bleakley, just decided by this court, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
AlleN, J. :
The record in this case fails to show that the motion for a new trial was filed within three days after the rendition of the judgment. The recital in the record is as follows: ‘‘Afterwards, to wit, on the — day of-, 1890, said plaintiffs filed herein their motion for a new trial of this cause, which motion is in the words and figures following, to wit.” We therefore are not at liberty to examine the record for the purpose of determining such question as could only be raised on a motion for a new trial. (Deford v. Orvis, 52 Kas. 432; City of Eskridge v. Lewis, 51 id. 376.)
Counsel for defendants in error contend that this ends the inquiry; that every question that could be raised on the record, except whether the pleadings uphold the judgment, would properly arise only on a motion for a new trial, and has been waived by the plaintiffs’ failure to file their motion in due time. The position of the learned counsel is not sound. Section 306 of the code of civil procedure defines ‘a new trial as follows : ‘ ‘A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court.” The section then prescribes the grounds on which a new trial may be granted. It requires only a careful reading of this section to show that it applies only to the trial of issues of fact. Section 265 of the code defines a “trial” as “a judicial examination of the issues, whether of law or fact, in an action.” The succeeding section provides for the trial of issues of law by the court, unless referred, and of issues of fact by a jury, the court, or referee. In order to obtain a new trial of an issue of fact, a motion or petition must be filed in accordance with the provisions of §§ 308, 309 or 310 of the code. When an issue of law has been tried and determined by the court, a motion for a new trial is not required as a condition precedent to the right' of the party to have the decision of the court reviewed on petition in error. This is conceded as to decisions of the issues of law arising on the pleadings by demurrer or otherwise. Nor is it contended that the rule would be different if all of the facts had been agreed to by the parties. It is contended, however, that, as the facts found by the trial court were excepted to by both parties, they cannot be regarded as the conceded facts of the case, and the decision of the court of the issues of law based on such findings can only be reviewed after a motion for a new trial has been duly filed and overruled.
Whether this court could proceed to direct judgment on findings which were excepted to by the successful party under § 559 of the code, wé shall not now stop to consider. All it is necessary to determine in this connection is whether the court may review the conclusions of law and judgment, based on the conclusions of fact, found by the trial court. The conclusions of fact stand as the result and final determination of the issues of fact in the case, and where no new trial is asked by either party, where no motion is made to set aside such findings of fact, or any of them, they stand as the facts in the case.- They supersede the aver-ments of the pleadings, at least so far as they are consistent with the issues properly triable. They eliminate whatever false averments and claims have been made by either party, and present to the trial court the basis of fact on which arise the issues of law. They stand as a statement of facts similar, if not in fact in all respects identical, with the statements of a petition challenged by demurrer, or an agreed statement of facts, or a special verdict of a jury, as to the legal effects and consequences of which issues of law arise, are argued and determined by the court. It may be contended that, on a trial before court or jury, questions of law arise which must be passed on by the court; that in the admission of evidence, in instructing the jury and in various other rulings as the trial progresses, the court decides issues of law, and that the correctness of these rulings can only be determined where a motion for a new trial is duly presented. One of the grounds for a new trial is that the verdict is contrary to law. This, it may be said, presents the whole of the issues of law in the case. The answer to this contention, however, is that it is only those rulings of the trial court which serve as aids or directions to the jury, or which show the process by which court or referee has reached its determination of the issues of fact, only those rulings which are included in and summed up with the decision of issues of fact, which must be challenged by motion for a new trial. Where an action is tried by a jury and a general verdict only is rendered, all the rulings of the court and all the instructions are but aids to the jury in arriving at a general result, which sums up and covers all the facts and all the law applicable to the case. Prom the nature of such a trial, the questions of law and of fact are answered finally by the jury in one general verdict in favor of one party or the other. If an erroneous verdict has been reached it may be due either to a misdirection of the court as to the law or a failure to follow the testimony as to the facts. The legislature, therefore, has wisely provided that whenever a retrial of an issue of fact is sought, an application for that purpose must first be made to the trial court which has seen the witness, heard the testimony and is fully informed as to all that has occurred at the trial. When, however, all questions as to the facts have been eliminated, this court is in as good a position to determine issues of law upon a written statement of facts as any trial court can be, and no ne- ^ cessity exists for the trial court to again pass on the identical questions of law arising in the case. This view of the law has been steadily adhered to by this court in very numerous decisions. (Osborne v. Young, 28 Kas. 769 ; Horn v. Newton City Bank, 32 id. 518 ; Lender v. Caldwell, 4 id. 339 ; Coburn v. Weed, 12 id. 182; Holcomb v. Dowell, 15 id. 379 ; St. L. & S. F. Rly. Co. v. Shoemaker, 38 id. 723; Stettauer v. Carney, 20 id. 474; Stapleton v. Orr, 43 id. 170 ; Windmill Co. v. Buchanan, 46 id. 314 ; Comm’rs of Wyandotte Co. v. Arnold, 49 id. 279.) This conclusion in no manner conflicts with the cases of Nesbit v. Hines, 17 Kas. 316 ; City of Atchison v. Byrnes, 22 id. 65, or Lucas v. Sturr, 21 id. 480. We still adhere to the rule that, in order to review any errors of law occurring at the trial of an issue of fact, a motion for a new trial must be duly filed and considered by the trial court.
The findings of the trial court show that the deed from John Ritchie and wife to the Kansas, Nebraska & Dakota Railway Company and the written contract executed on behalf of the railway company to Ritchie were executed at the same time, each as an inducement and consideration for the other. They separately evidence a part of the agreement, the whole of which can only be ascertained from considering the two writings together. The land conveyed was valuable property, located within a half mile from the state capitol, and prior to the trial of this action became included within the corporate limits of the city of Topeka. The only considerations for the conveyance were : First, a nominal money consideration of $1; second, the construction and operation of the Kansas, Nebraska & Dakota railroad over the land to Fort Scott; third, the erection, maintenance and use of a passenger-depot and a freight-depot for the accommodation of the public.; fourth, free transportation for the grantors during their lives over the railroad to be constructed by the grantee.
The tract of land conveyed included about 10 acres in a quarter-section, most of which was owned by the grantors. The main object in making the grant was. to enhance the value of the remaining property of the-grantors by the construction of the railroad and depots.. Ritchie platted a portion of the remaining lands into' city lots, expecting that the sale thereof at good prices; would be stimulated by the construction of the new railroad and the establishment and use of the depots on the land conveyed. The mere construction of a railroad across a piece of land is ordinarily regarded as a disadvantage to the remaining portions rather than an advantage ; but the erection and maintenance of depot buildings in or near a populous city, to which great numbers of people will find it necessary to resort for the transaction of business, and in traveling to and from the city, usually tends to materially enhance the value of neighboring property. The negotiations between the railway officials and Ritchie with reference to a right-of-way and ground for depots, switches and other purposes resulted in the execution of the deed and contract copied in the findings. The railway company procured the land without the expenditure of any but a nominal sum of money. It paid therefor by its written agreement which Ritchie accepted as an equivalent for the value of the land. The substantial requirements of that contract were that the railroad company should construct its line of railroad through the land; that' it should erect and forever maintain upon said land a passenger-depot and a freight-depot of a size and character suitable and •sufficient for the transaction of its business and the accommodation of the public at said point, and should cause all passenger- and freight-trains to stop at such depots respectively so as to transact business and perform all business that might be offered. The contract further provides :
‘ 'And if said company shall fail to construct its line of railroad through said tract of land and erect thereon said passenger- and freight-depots within one year from this date, or shall fail to keep and maintain said depots and use the same as herein provided, then the conveyance of said real estate to said company shall be void, and said real estate shall revert to said John Ritchie and his heirs."
It appears from the evidence that the railroad company did construct its railroad across the lands, and did erect two buildings, one suitable for a passenger-depot and the other suitable for. a freight-depot, in accordance with the requirements of the contract and within the time limited. It also appears that the freight-depot was used for the purpose for which it was designed from the time of its construction. The court further finds that—
“From the time of completion of said passenger-depot up to the commencement of this action it was not kept open for the accommodation of passengers, and although there was a stove in the middle or office-room, no fire was kept in it except occasionally, and during part of the time the stovepipe was down. Temporary plank seats were left in the waiting-room on completion of the building, but they were removed at some time which does not distinctly appear. Passengers awaiting trains stood or sat upon the depot platform, the projecting roof at the side or end affording some shelter from snow and rain, but sometimes they would go into the office-room of the freight-depot where a fire was kept when the weather required it, and the freight-depot room was always unlocked, except when employees were absent at meals or temporarily on business,.and no passengers were excluded from said room, although there was no sign or notice posted to show that it was intended for the accommodation of passengers, and the only seating arrangements were 'two or three chairs. No passenger- or freight-traffic was ever refused at South Topeka.”
No tickets were kept on sale at the passenger-depot, until about 10 days before the commencement of the trial in the district court, which appears from the-record to have been on the 25th day of November,, 1889. No baggage was checked, and, hi fact, none of the ordinary facilities afforded by a passenger-depot were provided by the railway company. The build ing designed for a passenger-depot might, so far as the accommodation of the public was concerned, have been called anything else as well as a passenger-depot. A barn from which the public were excluded, if surrounded by a platform and wide eaves, would have answered the same purpose.
The findings further show that the building at the corner of Adams and Fifth streets was the only one, in fact, used for a passenger-depot prior to the commencement of this action. Can this be held to be a substantial compliance on the part of the railroad company with its contract? Clearly it cannot. The substantial advantage .which would have accrued to Ritchie and his heirs from a passenger-depot, at which tickets were sold, baggage checked, information given, passengers sheltered and accommodated while waiting for trains, with all the other usual and ordinary conveniences for the public, were denied and withheld from them. Can the railroad company say because it built and maintained a freight-depot, and had a building, which it did not use, for a passenger-depot, that it has fulfilled its contract? The contract says it shall do both. It has then as much right to withhold both as one. The fact that the company has constructed side-tracks, roundhouse, stock-yards, water-tank, and various other buildings for its own convenience and accommodation, found in detail by the trial court, have no tendency whatever to show a compliance with the contract, whatever equitable considerations may arise from them. The contract of the railroad company converts the estate passed by the deed into one on conditions subsequent. The continuance of the railroad company’s estate depends on its performance of the conditions, and it is not necessary for the court to inquire as to the damage resulting to the plaintiffs from the non-performance of the conditions, for, the parties haying stipulated that the estate shall revert in case of a breach of the conditions, the plaintiffs cannot be driven to an action for damages for each recurring breach of the covenant. The question is, Have the conditions been substantially complied with? The court finds facts showing that that requiring the maintenance of a passenger-depot has not been so fulfilled. May the plaintiffs, then, maintain ejectment to recover the land? By the common-law advantage of a breach of a condition subsequent working a forefeiture of an estate could only be taken by formal entry, on the principle that it required as solemn an act to defeat as to create an ¿state. (2 Washb. Real Prop. 14.) But in this state there is no such thing as livery of seizin in the common-law sense. Estates are created by written instruments. Delivery of possession of land is, of course, a circumstance of some weight in determining questions of title. Under our statute, a party having either a legal or an equitable title may maintain an action for the recovery of real property. (Simpson v. Boring, 16 Kas. 248.) No formal entry is necessary here as a condition precedent to the bringing of an action of ejectment. Recent authorities are to the effect that an ordinary action of . 17 „ eiectment answers all purposes of a common-law entry. (Tied. Real Prop., § 277.) The condition on which, the grant was made being lawful, and one which the parties had a right to agree upon, must be enforced on the demand of the plaintiffs. (Clarke v. Brookfield, 81 Mo. 503 ; Jeffery v. Graham, 61 Tex. 481; Richter v. Richter, 111 Ind. 456 ; Heywood v. Land and Town Improvement Association, 11 Pac. Rep. 246 ; Railway v. Hood, 66 Ind. 580 ; Pepin Co. v. Prindle, 61 Wis. 301 ; Railroad Co. v. Covington, 2 Bush, 526; Railway Co. v. Griffeth, 17 S. W. Rep 277; Horner v. Railway Co., 38 Wis. 165; Wilson v. Wilson, 86 Ind. 472; Railway Co. v. Coburn, 91 Ind. 507 ; O’Brien v. Wetherell, 14 Kas. 616.)
It is strenuously insisted that the plats filed by the Ritchies operated as a dedication of the lands for railroad purposes. To this, however, we cannot assent, for several reasons : (1) A dedication of land can only be made by the person who is the owner of the land at the time the dedication is made. (Boerner v. McKillip, 52 Kas. 508.) The legal title to this land was in the railroad company at the time these plats were filed. The land having been conveyed on conditions subsequent, the title of the company was not divested until the grantor or his heirs claimed a forfeiture. The railroad company had nothing to do with the execution of the plat; hence, no statutory dedication was made. (2) While the location of the tracks and depot buildings of the defendant are shown on the map, and in a space not platted into lots where the depots are shown to be located, the words “K. N. & D. depot grounds” appear, only the boundaries of the tract on the side next the city of Topeka are shown on the map. No eastern boundary whatever is indicated, nor are streets indicated through the lands covered by the deed to the railroad conrpany, except by dotted lines. No distances on any boundary of the tract are given. (3) While the streets and alleys are expressly dedicated to public uses, there is nothing written on the plats indicating a pUrp0Se cjeclicate any lands to railroad uses. All that can be said in any way to indicate such a purpose, is the fact that the locations of the tracks and buildings are marked on the plat. We think this could be done with perfect safety and propriety, because the tracks and buildings were already there, and the plats merely show what was visible to the eye on the ground and their locations with reference to the balance of the property.
The lands in controversy having been conveyed on valid conditions subsequent, and there having been a substantial breach of those conditions, the plaintiffs may maintain ejectment for the recovery of the lands. It only remains to consider what order this court should make on the facts presented by the record. The petition alleges that the plaintiffs are the owners, both in law and equity, of the lands in controversy, and that they are entitled to the possession thereof, and asks judgment for their recovery. The answer is a general denial. The facts developed at the trial and stated in the findings of the court show that the plaintiffs seek to enforce the forfeiture of the estate granted by John Ritchie, deceased, and wife to the Kansas, Nebraska & Dakota Railway Company. -The findings also show that the railway company took' possession under the deed, and thereafter constructed many valuable improvements, which are still on the land. Are the plaintiffs also entitled to recover these improvements as a part .of the realty ? While the law enforces the lawful contracts of parties; and even gives effect to forfeitures, equity gives relief against the hardships incident to such forfeitures in very many cases. It is a universal rule that the instrument creating the forfeiture will sti'iotly construed, and that its terms will never be extended by construction. (Wier v. Railroad Company, 40 Kas. 130.) The general doctrine of equity on this subject is thus stated in Pomeroy on Equity Jurisprudence (§ 381) :
“The general doctrine was finally settled that wherever a penalty or forfeiture is inserted merely to secure the payment of money or the performance of some act or the enjoyment of some right or benefit, equity regards such payment, performance or enjoyment as the real and principal intent of the instrument, and the penalty or forfeiture as merely an accessory and will therefore relieve the debtor party from such penalty or forfeiture whenever the actual damages sustained by the creditor party can be adequately compensated.”
All the Justices concurring.
In this case, the damages resulting to the grantors from a failure of the grantee to comply with the conditions of its contract for a given period of time are not susceptible of accurate measurement. How much the plaintiffs might have been benefited by the maintenance and use of a passenger-depot prior to the commencement of this suit is, of necessity, a matter of opinion and speculation rather than accurate computation. The parties by their contract have said that the estate granted shall revert to the grantor in case of a failure to perform the conditions. The estate granted was the bare land, and that estate, we think., reverts to the heirs of the grantor. The railroad-tracks, roundhouse, depot buildings, etc., were not granted by the deed, but have been constructed by the grantee. The values of the various improvements made by the railroad company are not stated in the findings. The defendant, being a railway corporation, has a right to condemn these lands, or so much thereof as is necessary for its use, but in case of such condemnation would be required to make full payment therefor. In this case,'the defendants have not filed any pleading praying relief from the effects of the forfeiture, but as the plaintiffs allege an equitable estate, and as the rules of pleading in actions of this-kind under the code are extremely liberal, we do not feel at liberty to direct a judgment to be entered on the special findings which would be inequitable. The filing of the plat by Ritchie, and of the subsequent one by his heirs, are some evidence that up to that time the plaintiffs had not insisted on a forfeiture ; but the findings of fact show that the nonuser of the depot building continued after the filing of the plats up to and after the time of the commencement of this action. A waiver on the part of the plaintiffs of past breaches of the condition cannot be construed into a waiver of all right to future observance and performance of it. The right to a forfeiture was first insisted on and brought to the knowledge of the defendants by the commencement of this action. We think the rights of the parties should be determined as of that date; that under the facts as disclosed by the record and the findings of the court the plaintiffs were entitled to recover the specific property, or its value measured as of that date ; but if the defendants desire to maintain a railroad across the lands and to continue the use thereof for railroad purposes, they should be permitted to retain the land and also the improvements they have constructed thereon on payment or the value of the land computed as of the date of the commencement of this action, with interest since that time, without any charge on account of improvements made by the defendant thereon. (Cohen v. Railroad Co., 34 Kas. 158.) There are no findings in the record showing what this value was, nor has the defendant indicated its desire to retain and pay for the land. Tlie incompleteness of the find-x ings renders it necessary to direct a new trial of the action. The judgment is therefore reversed for further proceedings in accordance with the views above expressed. | [
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The opinion of the court was delivered by
Martin, C. J. :
The question in this case is whether the’court erred or not in arresting judgment upon the conviction for burglary, and this depends upon the constitutionality of §§ 1 and 2 of chapter 121, Laws of 1871, entitled “An act to prescribe the punishment for certain offenses against railroad property and in railroad-cars and buildings.” (¶’¶’2196, 2197, Gen. Stat. of 1889.) The defendant claims that these sections are in contravention of both clauses of § 16 of article 2 of the constitution, the latter of which provides that, “No law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.” In Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 600, this court held that the first clause of this section is mandatory, and we see no reason why the second clause should receive a different construction and be treated as merely directory. One purpose of the clause was to discon tinue the practice of amendments by striking out and inserting, and another was to call specific attention to the old statute in the enactment of the new, although, when the new is properly enacted with refer-' erence to the old, the latter is repealed by the very force of the constitutional provision, without any legislative declaration to that effect. (Comm’rs of Jefferson Co. v. Hudson, 20 Kas. 71, 75 ; Case v. Bartholow, 21 id. 301, 308.) The constitutional clause in question was not intended to abolish the doctrine of repeals by implication; (Comm’rs of Norton Co. v. Shoemaker, 27 Kas. 78 ; The State, ex rel., v. Cross, 38 id. 700) ; nor to forbid the enactment of supplemental laws ; (Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kas. 759, 768, 769, 770,) and we recognize the rule that before an act of tlie legislature can be declared unconstitutional, its repugnance to the fundamental law must clearly appear. (Comm’rs of Cherokee Co. v. The State, ex rel., 36 Kas. 337.)
Are §§ 1 and 2 of the act in question intended to be amendatory of §§ 68 and 69 of the crimes act, or are they supplemental thereto, or are they intended to repeal them wholly or in part by implication? If these sections of the act of 1871 had only provided penalties for breaking into any "passenger-coach, baggage-, freight- . or express-car or other railway-carriage . with intent to commit therein a felony or misdemeanor,” they could be upheld as supplemental legislation, for prior thereto no adequate penalties were denounced against those who committed such depredations. But station-houses, depots, ticket-offices and other railway buildings were already under the protection of §§ 68 and 69 of the crimes act as warehouses and other buildings ; and if these sections, and also §§ 1 and 2 of the act of 1871, are still in force, then we have two laws on the same subject, and these inconsistent with each other ; for by the crimes act the breaking and entering of such structures would be burglary in the second degree only when committed in the night time and with intent to steal or to commit any felony therein, while by the the act of 1871, the offence "would be of that degree, although committed in the daytime and with intent to commit therein a felony or misdemeanor. Under § 69 of the crimes act, the breaking and entering of such a structure in the daytime is burglary in the third degree only. The punishment for burglary in the second degree is confinement and hard labor in the penitentiary not less than five nor more than 10 years, while for burglary in the third degree the term is not less than one nor more than five years. Again, under § 2 of the act of 1871, burglary in the third degree consists of a mere attempt to break and enter, while under § 69 of the crimes act there must be an actual breaking and entry; besides, § 417 of the crimes act makes special provision for the punishment of an attempt to commit a crime. It is impossible for a trial judge to instruct a jury correctly or properly administer the law of burglary in such cases on the assumption that §§68 and 69 of the crimes act and §§ 1 and 2 of the act of 1871 are in force. One or the other must be disregarded. And we cannot hold that said §§ 68 and 69 of the crimes act are wholly or in part repealed by implication, for they are much broader in their scope than §§ 1 and 2 of the act of 1871. If we are to accord to the latter legislation any force or effect, we must treat it as amendatory, and §§68 and 69 of the crimes act as repealed at least in part. On the whole we think that legislation like §§ 1 and 2 of said act of 1871 was in hibited by the second clause of § 16 of article 2 of the constitution ; that they are inoperative and void ; and that §§68 and 69 of the crimes act are not affected thereby.
It is suggested by counsel for the state that the constitutionality of the act of .1871 has stood unchallenged for many years, and that such long acquiescence is a strong argument in favor of its validity, and they cite Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kas. 62, 74; Philpin v. McCarty, 24 id. 393, 405, and The State, ex rel., v. Cross, 38 id. 696, 700. But in all those cases important rights and property interests had accrued under the several acts in question, and a decision adverse to their validity would disturb these rights and interests, and this was a consideration not lightly to be esteemed ; but it has no application here.
Entertaining these views, we hold that the district court did not err in arresting judgment on the conviction for burglary. Judgment affirmed.
All the Justices concurring. | [
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Allen, J.
While the plaintiff in error assigns a great number of errors in the rulings of the District Court and Court of Appeals, and discusses them at great length in his brief, the questions involved in the case are neither numerous nor complicated. Though there is much discussion as to the validity of the assignments of the sale certificates from Richmond, the original purchaser, to Thompson, who took out the renewal certificate, and from Thompson to the plaintiff, they appear to be sufficient to have passed whatever rights the assignors had in the land to the plaintiff, Griffith.
Richards held a patent issued by the Governor of the State, regular in form, reciting that he had paid the full purchase price of the land. There is nothing in this case showing, or tending to show, that the legal title was not in the State of Kansas at the time of the execution of the patent. Being unquestioned by the State, the patent passed the legal title to the grantee, Richards. It is not shown, nor is it contended here, that Griffith had paid the full purchase price under his certificate for the land, and the evidence shows that only one-tenth of the purchase-money had been paid by those under whom he claimed. He himself had never paid any of the principal. The equitable title, then, to the extent of nine-tenths of the purchase price, still remained in the State at the time the patent was issued, and Richards, having paid the whole amount due the school fund, succeeded to the equitable title of the State. He, then, at the time this action was tried, held the full legal title and the equitable title, subject only to whatever rights Griffith had ’under his certificate of purchase. That a patent for public land is prima facie valid and implies the existence of every fact essential to its validity is well settled. Colorado Coal Co. v. United States, 123 U. S. 307; Leviston v. Ryan, 75 Cal. 293; Carman v. Johnson, 20 Mo. 108; Jackson v. Marsh, 6 Cowen, 281; The People v. Mauran, 5 Denio, 389; Bradley v. Parker, 20 Kan. 462; Burnham v. Starkey, 41 id. 604.
Conceding that the plaintiff, being in possession of a part at least of this land, may maintain an action under section 594 of the Code of Civil Procedure for the purpose of determining the interest of any person claiming adversely to him, it was incumbent on him to show that the patent issued to Richards was invalid. It did not devolve on Richards to bolster up his patent by showing a state of facts authorizing the Governor to issue it. The plaintiff rested his case on the sale certificate issued long prior to the patent, with proof of his possession under it, and the payment of the installments of interest as they fell due. None of the proof offered was necessarily inconsistent with the right of the Governor to issue a perfectly valid patent. There was no proof whatever with reference to the payment of taxes. If the taxes were not in fact paid, and if Richards in fact held a tax-sale certificate for the requisite time, and paid the balance of the purchase money, he was entitled to a patent which would absolutely cut off all interest of the plaintiff in the land. Larabee v. Prather, 51 Kan. 743. Other states of fact may also be imagined which would authorize the issuance of a patent to Richards. The case seems to have been tried on the erroneous theory that the burden rested on the defendant to prove the validity of his patent, and that the mere fact of possession under the prior sale certificate, with proof that the interest had been paid, was sufficient to show the invalidity of the patent. This cannot be, for every fact shown by the defendant may exist without being in the slightest degree inconsistent with the validity of the patent. Indeed, it may be that the right to issue the patent at all depended on the fact that there was an outstanding sale certificate, rendering the lands taxable or in some other manner furnishing a basis for the action of the Governor in executing the patent. Under the evidence in the case the defendant appears to .have not only the legal but also the full equitable title. If, however, it can be shown that the plaintiff’s rights under the certificate of purchase have not been forfeited, and that the patent was wrongfully issued, then Richards would be a trustee of the legal title, and. might be required to convey it, on payment to him of the balance of the purchase money due under the plaintiff’s contract — if it shall appear that Richards, having paid it into the county treasury, is equitably entitled to have it returned to him.
The plaintiff in error very earnestly insists that this court shall direct judgment to be entered in his favor on the facts found by the trial court and the undisputed evidence in the case. This we should feel bound to do were it not evident to us that the case was tried on a wrong theory with reference to the burden of proof and the presumptions arising from the execution of the patent. That it was so tried is apparent from the remarks of the Judge incorporated in the record. While under section 559 of the Code of Civil Procedure, where the facts are found by the trial court, this Court is authorized to direct the entry of the proper judgment, yet, where it appears that there has not been a full and fair trial of the issues of fact, and that, owing to the adoption of an errone ous theory by the trial court with reference to the burden of proof, the facts have not been fully developed, it is sometimes necessary, in furtherance of justice, to direct a new trial rather than to enter judgment on what is, evidently, but a partial statement of the case. Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36.
The judgment will be reversed, and the case remanded with direction to grant a new trial.
All the Justices concurring. | [
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Johnston, J.
On April 16, 1888, J. A. Rexroad was the owner of lots 1, 3 and 5 on Second Avenue,. East, in the city of Hutchinson, except 61 feet off the south end of lot 5. He began the erection of a three-story hotel building on these lots, known first as the “New Howard House,” and afterward as the “ Brunswick Hotel.” He employed no architect, but, being himself a builder, he had in mind a general plan, subject, however, to changes from time to time. No general contract was mad.e by him for the entire work, but he did part of the work himself and entered into contracts with others for labor and material for specified portions of the work. On the 2d day of July, he borrowed from the Kansas Loan & Trust Company $20,000, and secured the payment of the same by a mortgage upon the real estate. On the same day he executed another note to the Kansas Loan & Trust Company for $3,000, and secured the payment of the same by a mortgage upon the same property. The hotel building was substantially completed on March 31, 1889, and, on June 11, 1889, Rexroad executed a conveyance of the premises to A. J. Higley and G. W. Carpenter, subject to certain incumbrances against the property.
Frank Ringle, who performed labor on the building and who had filed a statement for a mechanic’s lien, brought an action in the District Court against Rex-road and others to foreclose his mechanic’s lien, and numerous lien claimants were made parties defendant, who appeared and set up their respective claims. A trial was had in December, 1891, and the principal controversy was between the mortgagees and those claiming liens for material and labor furnished during the construction of the hotel. It was adjudged that a large number of those who had furnished labor and material had concurrent first liens. A number of the claimants who had furnished labor and material were •denied a lien because the lien statements were held not to have been filed in good time. M. Wohlfort was adjudged to have a second lien under a judgment in his favor against Rexroad rendered April 10, 1889, for $27. The Kansas Loan and Trust Company was adjudged to have a third lien for the sum of $20,000, inferior only to the mechanic’s liens adjudged to be valid and the judgment lien of Wohlfort. The Kansas Loan & Trust Company contends that the Court •erred in holding that several of the mechanic’s liens were superior to the mortgage lien of the Company, and also in adjudging that the judgment lien of Wohlfort was superior to its mortgage lien.
J. M. Adams, who furnished labor, and the E. A. Drew Glass Company; which furnished material, and whose liens were disallowed, have filed cross-petitions in error and insist that they are entitled to first liens upon the premises concurrent with those which were allowed.
The objections mainly urged against the validity of the liens allowed are that the statements of the claimants for liens were not filed at proper times. The lien claimants, having dealt directly with Rexroad, the owner of the premises, are to be regarded as original contractors; and the building of the hotel, toward which they all contributed, must be treated as a single plan and project, and not as being made up from several distinct and independent plans and contracts. Under the Mechanic’s Lien Law of 1872, which continued in force until March 1, 1889, the time for filing lien statements by such claimants was reckoned from the completion of the building. It provided that the statements should be filed within four months after the completion of the building (§ 3, ch. 141, Laws 1872) ; while the later act provides that the statements shall be filed within four months after the date upon which material was last furnished or labor last performed under contract with the owner. § 2, ch. 168, Laws 1889. The law of 1889 became operative upon March 1 of that year, which was 80 days before the completion of the hotel, and before any of the claimants had the right to file lien statements. It is settled that the right to liens accrued under the act of 1872, but the procedure for enforcing them, including the filing of the lien statements, is governed by the act of 1889. Nixon v. Cydon Lodge, 56 Kan. 298; Hotel Co. v. Hardware Co., 56 id. 448. As the law was changed a long time after the material was furnished or work performed by the claimants, but before the building was actually completed, and before any of the claimants were entitled to file lien statements, the question arises, whether those filed more than four months after the material was furnished and work performed, are in good time.
It is evident that the Legislature did not intend to take from lien claimants any existing rights or to hamper them in the enforcement of the same. Under the law of 1872, lien statements might be filed within four months after the right to file them accrued, and under the law of 1889 they are to be filed within four months after the right to file accrues. If no change had been made in the law, the lien claimants before us would have had more than four months after March 1,1889, in which to protect their liens by the filing of statements, and in the absence of a specific provision regulating the time of filing statements of those whose rights had already accrued before the change of law was made, it must be held that they were entitled to a reasonable time after the new act took effect within which to comply- with its provisions. It is not necessary to determine what would be a reasonable time in every case, but by analogy it cannot be extended beyond the statutory limitation — that is, four months after the act took effect. A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628; Bauserman v. Charlott, 46 id. 480; s. c., 50 id. 794; Rork v. Comm’rs Douglas Co., 46 id. 175; Comm’rs Graham Co. v. Van Slyck, 52 id. 622; Plow Co. v. Witnam, 52 id. 185; Groesbeck v. Barger, 1 Kan. App. 61; Brick Co. v. National Bank, 2 id. 704.
Applying these rules to the claims against which objections are made it appears that G. W. Hardy, whose lien to the extent of $1,868.21 was allowed, is entitled to have the same enforced. His statement for a lien was filed on May 17, 1889, two months and 17 days after the new law came into force, which is deemed not to be an unreasonable time. Although the bricks used in the erection of the building were manufactured by another, the testimony sumciently shows that they were furnished by Hardy .under a contract with the owner, and he was therefore entitled to enforce a lien against the premises. The objection that the lien is defective because the promissory note taken by Hardy from the owner was not filed with the claim of lien cannot be sustained. The-statute relieves the claimant from the burden of filing-an itemized statement of the labor or material furnished where a note has been taken, but it is permissive rather than compulsory. The statement filed was properly itemized, and the claim that the note had been transferred to another is not sustained by the-testimony.
The claim of Lacey & Fix, amounting to $414.47, was improperly allowed as a lien, as their lien statement was prematurely filed. It was filed on February 20, 1889, while the law of 1872 was in force, and before the building was completed. The right to file a lien had not then accrued, and no statement was filed after the law of 1889 took effect, nor were any effective steps taken to preserve their lien under either law. A statement filed before the time named in the statute is not sufficient to create a lien. Conroy v. Perry, 26 Kan. 472.
An objection is made to the lien allowed in favor of the Hutchinson Hardware Company, on the ground that it was not claimed nor yet allowed upon the whole of the real estate upon which the hotel was erected. The hotel, as we have seen, was built upon lots 1, 3 and a part of lot 5. In most of the cases liens were claimed upon lot 5, except 61 feet off the south end of the same. The Hutchinson Plardware Company claimed a lien on lots 1, 3 and 140 feet off the north end of lot 5. The Court, however, finds that the Company claimed a lien on lots 1 and 3 only, but this may have been inadvertently done, as it clearly appears that a lien was claimed on the north end of lot 5, and besides, the record contains a stipulation to - the effect that all the lien claimants claim liens on lots 1, 3, and 5, less the rear 61 feet of lot 5, .and as to that 61 feet they all agreed that no claim to the same should be made ; and the final judgment of the Court seems to follow the stipulation. The finding of the Court heretofore referred to, therefore, is not sustained by the testimony ; which all shows that the Hutchinson Hardware Company is entitled to a lien upon the entire premises.
An error appears to have been committed in giving the Wohlfort judgment priority over the mortgage liens. The judgment was rendered on April 10,1889, long after the execution and recording of the mortgages, and we find nothing in the record showing that a lien in favor of Wohlfort attached to the premises before the rendition of the judgment.
The cross-petitioners, J. M. Adams and the F. A. Drew Glass Company, were entitled to the liens which they claimed. J. M. Adams commenced work upon the building September 6, 1888, and continued until October 20, 1888. He filed a lien statement on May 23, 1889, which appears to be in proper form, 'and under the rule established is entitled to a first lien upon the premises, concurrent with those which were allowed by the Court. The F. A. Drew Glass Company furnished material to the value of $345 during the month of November, 1888, and they filed their lien statement on May 24, 1889, which appears to be in substantial compliance with the statute, and entitles them to a first lien upon the premises, concurrent with the others which were allowed.
There were several other claims contested in the trial court, but those that have been mentioned are the only ones to which reference is made in the printed briefs and argument, and no others will be considered here.
The judgment will be modified by striking out and disallowing the lien adjudged in favor of Lacey & Fix, also by making the judgment lien of M. Wohlfort subordinate and inferior to the mortgage liens. It will also be modified to the extent of allowing the Hutchinson Hardware Company a lien upon the entire premises, as well as the allowance of the liens claimed by J. M. Adams and the F. A. Drew Glass Company.
The judgment, when so modified, will be affirmed.
All the Justices concurring. | [
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Allen, J.
The defendant was charged, as president, director and managing officer of the Sherman County Bank, a corporation organized under the laws of Kansas, with having received deposits of money when the bank was insolvent, knowing that it was in that condition. The information contains ten counts, five of which charge him as principal and the others as accessory. He was convicted as accessory under four counts of the information, and sentenced to four years’ imprisonment in the penitentiary and to pay a fine of $2,000. From this judgment he appeals. Numerous errors are assigned in the brief. We shall consider only those questions decisive of the case and which might arise on a retrial.
George W. Edwards was called as a juror. On his examination he stated that he had telked with various persons about the case; that he had an opinion as to whether or not the bank was solvent at the time the deposits were received; that it would require evidence to remove it; that he might have expressed an opinion, though he could not say whether he had or not; that he would take the opinion he had with him into the jury-box. Though he also said, on further examination, that he had not a settled conviction, he had such an opinion with reference to one of the principal issues in the case — the solvency or insolvency of the bank — as would render him incompetent as a juror. The Court erred in overruling the challenge.
A more important and prejudicial error, and the •one on which a reversal of the judgment is mainly based, is in the admission of the deposition of E. Lindsay, taken at St. Joseph, Missouri,.on written interrogatories prepared by counsel for the defendant, and cross-interrogatories by the State. On the trial, the defendant had testified at length with reference to many matters ; and, among others, that he went to the State National Bank in St. Joseph and made arrangements for $5,000 more money, if the bank should need it; that this was done shortly before the bank •closed; that his bank then owed the St. Joseph bank $2,500, and that he made arrangements for, and was •told by Mr. Lindsay that he could get, $5,000 if he wanted it, thereby increasing the indebtedness to $7,500. This deposition was offered by the State in rebuttal, and portions of it were admitted over the objection and exception of the defendant. In that part which was read in evidence to the jury, Mr. Lindsay .testified that he was the president of the State National Bank, and resided in St. Joseph, Missouri; that Tomblin’s bank owed them $10,000; that Tomblin made application'for funds two days before the suspension of the bank and that it was not granted; that Tomblin asked for $2,500. This evidence was important. It squarely contradicted the statements of Mr. Tomblin, and tended to show that the accounts, of the Sherman County Bank with the St. Joseph bank were in a much less favorable •condition than Tomblin had stated, and, also, that Tomblin could not obtain the assistance from Lindsay’s bank that he claimed he had secured. The 10th section of the Bill of Rights, in the Constitution of •this State, secures to the accused in all criminal prosecutions the right “to meet the witness face to face.” The defendant did not waive this right by ■causing the deposition of Lindsay to be taken. He •did not offer the deposition in evidence; and, notwithstanding the fact that he had caused it to be •taken and filed in the court before the trial commenced, he still had the right to insist on meeting face to face eveiy witness who should testify against-him at the trial. This constitutional guaranty is one of the most important safeguards to the citizen when charged with crime, and no court has any right to-abridge or deny it. Rice on Evidence, § 243; Cline v. State, 36 S. W. Rep. 1099. The facts in this case do not-fall within the exception, sometimes urged, where the accused was personally present at the time the testimony was taken, for it appears from the record in. this case that he was not present when this deposition was taken. We express no opinion, however, whether this distinction can be maintained. The mere fact-that the defendant asked that the deposition might betaken did not amount to a consent that, whatever the-witness might testify to, the deposition might be read in evidence at the trial.
While the instructions fairly state the law, in the-main, the concluding paragraph of the fourteenth instruction given seems to imply that the defendant-might be held guilty in a criminal prosecution if, through his negligence, he did not know the actual-condition of the bank when it was.in fact insolvent. It was proper for the jury to take into consideration-the defendant’s relation to the bank, as a managing-officer, and the duties he owed to it, for the purpose-of determining whether he actually knew its insolvent condition ; but mere negligence would not render him guilty of a crime. It was incumbent upon the-State to establish, not only the fact of insolvency, but-the defendant’s knowledge of it.
We find no error in the ruling of the court on the-plea in abatement. Nor do we think the ruling of' the court on defendant’s motion to withdraw from the-consideration of the jury-each count, separately, operated as a final discharge of the defendant from further prosecution on those counts to which the motion was at first sustained and afterward overruled. While the court announced its ruling on the motion, there was yet no actual discharge of the defendant from further prosecution ; and, on the record, we think no error was committed by the court in recalling and correcting the decision at first announced.
We do not think it was incumbent on the State to show that the bank held a certificate of the Bank Commissioner authorizing it to transact business. Nor was it essential to show that the county treasurer was authorized by the county to deposit funds in the bank. Whether the deposit was made rightfully or wrongfully by the county treasurer, it was still a deposit within the meaning of the law.
Many other alleged errors are discussed in the brief, concerning which we express no opinion, as it is probable that the same questions may not arise on another trial, and they do not appear to us of such importance as to require discussion in this opinion.
The judgment is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Johnston, J.
This was a prosecution on a charge of perjury. In the information it was alleged that, in May, 1896, W. I. Park was tried in the District Court of Harvey County on a charge of grand larceny, and, at the trial, he became a witness in his own behalf; that on cross-examination he was asked by counsel for the State — for the purpose of affecting his credibility — whether or not he had been convicted of grand larceny or any other felony in the State of Missouri and as punishment for such offense been sentenced to and confined in the penitentiary of the State of Missouri for a portion of the years 1893 and 1894; and that in answer to such inquiry he swore that he had never, at any time, been convicted of grand larceny or other felony in the State of Missouri or in any other place, and that he had never, at any time, been confined in the penitentiary of Missouri; whereas, in truth and in fact, he had been, on the 31st day of May, 1893, duly convicted of grand lar ceny in the County of Vernon, State of Missouri, and on that day had been sentenced to the penitentiary of that State for the term of two years, and on the 1st day of June, 1893, had been lawfully placed in that penitentiary and held and confined there under the sentence until the 24th day of November, 1894. The information contained the requisite averments in respect to the administration of the oath, the nature of the proceeding in which it was administered, and as to the materiality of the statements alleged to be false. The information was quashed for the reason that the facts alleged therein were deemed insufficient ; and the defendant was discharged. This ruling appears to have turned on the materiality of the alleged false statements, and this is the only question presented on the appeal taken by the State.
To constitute perjury the false statements must be material to the subject under consideration, or such as would tend to influence the determination of the issues to be decided. The question whether the defendant had been previously prosecuted and punished for committing grand larceny in Missouri, although in a certain sense collateral to the question on trial, can hardly be treated as immaterial. In the trial wherein false statements are alleged to have been made, Park voluntarily became a witness in his own behalf, and he was therefore subject to the same rules on cross-examination as any other witness. He having assumed the position of a witness, it was competent for the state, upon cross-examination, to test his veracity and credibility. It is well settled .in this State that a defendant may be asked questions disclosing his past life and conduct; and the State may even go to the extent of inquiring if he has ever been convicted of the same offense as that for which he is upon trial. The State v. Pfefferle, 36 Kan. 90; The State v. Probasco, 46 id. 310; The State v. Wells, 54 id. 161. Not only was the statement of the witness, therefore, competent, but it had an important bearing upon the credit to be given to his whole testimony ; and.it is generally held to be perjury to swear falsely to anything affecting the credibility of the witness himself or the credibility of another witness in the case. In Wood v. People, 59 N. Y. 117, it is held that “it is not necessary that the false statement tends directly to prove the issue in order to sustain an indictment for perjury; if circumstantially material, or if it tends to support and give credit to the witness in respect to the main fact, it is perjury.” The Texas Court of Appeals has held that perjury may be predicated on a false answer of a witness that he had never been convicted of a felony, as such answer affects his credibility and is therefore material to the issue. Williams v. The State, 28 Tex. Ct. of App. 301. See, also, United States v. Landsberg, 23 Fed. Rep. 585: Washington v. The State, 22 Tex. Ct. of App. 26; 2 Bishop’s New Crim. Law, §1032; Clark’s Crim. Law of Canada, 389 ; Tiffany’s Crim. Law, 850 ; 3 GreenL Ev. § 195.
The judgment of the District Court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Johnston, J.
H. C. Trigg brought this action against the city of Garden City to recover $2,084.27, with interest at 7 per cent, from the loth day of July, 1889, on warrants issued by the City in favor of Jacob Holloway for the construction of certain sidewalks. The warrants provided that the amount of each should be paid out of a specific sidewalk fund arising from an assessment on particular lots, and that if not paid thus by July 15, 1889, it should be paid out of any funds not otherwise appropriated. It appears that in May, 1887, petitions were presented to the City Council asking that sidewalks be constructed upon a number of the streets. The petitions were granted, and a resolution was passed and published that the sidewalks were deemed to be necessary. On June 25, 1887, an ordinance was enacted providing for the construction of the,sidewalks, and the committee on streets was authorized to contract for the building of the same in the name of the City “ on such terms as may seem best.” It also provided for levying an assessment against the abutting property according to the front foot thereof, to be collected as other taxes, giving to the lot owners the privilege of building the walks at their own cost at any time prior to August 1, 1887. On October 22, 1887, the City entered into a contract with Holloway to build the walks in accordance with certain specifications, and'that when the work or any part thereof had been completed and duly approved, warrants should be issued by the city for the amount necessary to pay for such sidewalks, payable out of the fund produced by the special assessment; but it further provided that if any of said warrants were not paid by July 15, 1889, they should become payable out of any funds in the city treasury. The sidewalks were built in accordance with the contract, warrants were issued, and a portion of the same were paid from the special fund arising from the assessments. On July 15, 1889, the warrants in question remained unpaid by reason of the failure of the owners of some of the property to pay the amounts assessed against it. On that day the warrants were presented and payment demanded. There was then in the city treasury no money belonging to the special fund, but there was in the general fund money sufficient to pay a part of said warrants; but the Treasurer, on the instruction of the City Council, refused to pay the same. The trial court ruled that the City was liable upon the warrants, and gave judgment for the amount of the same.
The contention that the City had no power to make the contract that was made cannot be sustained. Garden City is a city of' the second class. The statute specifically empowers such cities to build sidewalks ; and they are authorized to make all contracts necessary to the exercise of the corporate powers conferred. ¶ ¶ 759, 788, Gen. Stat. 1889. While the statute provides for assessing the cost of the improvement against the property benefited, the city is not limited to that method of making payment. It has been determined that this provision requiring an assessment to be made for the improvements relates to the ultimate liability therefor, and is for the purpose of raising a fund to reimburse the city for the amount paid for such improvements. City of Wyandotte v. Zeitz, 21 Kan. 649; City of Atchison v. Leu, 48 id. 138; King v. City of Frankfort, 2 Kan. App. 530. The same authorities hold that it is competent for the city to contract for the building of a sidewalk, payment to be made when the work is completed, and to give a suitable acknowledgment of the indebtedness. It is true the City might have made a contract to build the sidewalks stipulating that payment should be made solely from the proceeds of the special assessment, but perhaps the delay and uncertainty of that course made it impossible to make an advantageous contract for the work. The course adopted was a combination of the two methods. The contractor was to build the sidewalks and take his pay from the proceeds of a special assessment,, provided the taxes were paid within the prescribed time. The sidewalks appear to have been completed in the early part of 1888. The earliest annual tax to which the special assessment could be added was that of 1888. The first half of the tax would therefore be due on December 20, 1888, and the second half on June 20, 1889. Moneys collected by taxation for the City must be turned over to the city treasurer on July 15, and •obviously the contract was made with reference to these dates, as the warrants were made payable absolutely on July 15, 1889. Such improvements being in great part for the benefit of the general public and -the use and convenience of the whole city, it is primarily liable for them ; and no reason is seen why the •city may not enter into such a contract as was made in this case. The statute contained no restrictions as to the manner of payment, and the ordinance authorized the committee to contract for the building of the sidewalks in the name of the City on such terms as might seem best. The contract is not unreasonable in its terms, nor does it appear to be in conflict with either the statute or the ordinance.
The District Court ruled correctly in holding the City liable upon the unpaid warrants, and its judgment will therefore be affirmed.
All the Justices concurring. | [
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Allen, J.
Section 10 of chapter 78 of the Laws of 1893, known as the Australian Ballot Law., provides:
“The certificates of nomination, and nomination papers being so filed, and being in apparent conformity with the provisions of this act, shall be deemed to-be valid, unless objection thereto is duly made in writing. Such objections or other questions arising in relation thereto in the case of nomination of state officers- or officers to be elected by the voters of a division less than the state and greater than a county, shall be considered by the secretary of state, auditor of state and attorney general, and the decision of a majority of these officers shall be final. Such objections or questions arising in the case of nominations for officers to-be elected by the voters of a county or township, shall be considered by the county clerk, clerk of the district court and county attorney, and the decision of a majority of said officers shall be final. ... In any case where objection is made, notice shall forthwith be given to the candidates affected thereby, addressed to their place of residence as given in the nomination papers, and stating the time and place, when and where such objections will be considered.”
The questions in this case are as to the extent of the inquiry which the County Clerk, Clerk of the District Court and County Attorney may make under objections filed to certificates of- nomination, and the force and finality of their determination. As to the extent to which the interests of the public, the parties to this case, or the political party to which they adhere will be affected by the determination of the controversy we are not advised ; but the question involved is ,of the utmost importance to the people of the State. It relates to the freedom of expression at the ballot-box, of the will of the voters, and to the power of the special tribunal created by the statute to determine what nominations may, and what may not, be submitted through the instrumentality of the official ballot to the electors for their suffrages. The language of the statute is far from being clear or explicit. On the one hand, it is contended that where objections to nomination papers are filed the inquiry is limited to matters of form, and at most to questions as to the genuineness of the papers themselves. On the other hand it is claimed that this tribunal has ample power not only to determine all questions as to the regularity and genuineness of the certificates themselves, but also to go behind the certificates, and inquire whether a convention was, in fact, held, whether it represented the political party it claimed to represent, and whether the action of a political convention has been subsequently abrogated and superseded by the lawfully constituted party committee or authority. The question is suggested at once whether the law contemplates that political parties are to be treated as well-defined divisions of the people, having the right, not only to nominate-candidates, but to enforce disci- pline among their members, prevent factional strife, and dictate as to the use of the party name. Authorities are cited, which in some of the language used, if not in the decisions of the cases, seem to recognize this view. In the case of The State, ex rel. O’Malley, v. Lesueur, 103 Mo. 253, it was said :
“And, aside from testimony to that effect, it would seem inherently necessary in all party oganizations that there should be some governing head, some controlling power, some common arbiter, which, if an emergency" should arise therefor, can lay its hand on the heads of warring factions within the party, and compel the observance of wholesome regulations conducive alike to efficient party organization, order, fair dealing, and good government. Certainly a court of justice could not look with unpropitious eye upon all proper rules which would protect every citizen in the unt^ammeled exercise of their choice in selecting those for whom they desire that their suffrages shall ultimately be cast. The same considerations which should induce courts of justice to maintain the purity of the ballot-box, when the final vote is taken, should equally operate with them to promote honesty and condemn fraud when a preliminary vote is taken, or a nominating convention held.”
There is language of somewhat similar import in the case of In re Redmond, 25 N. Y. Supp. 381. In the case of Chapman v. Miller, 52 Ohio St. 166, the Supreme Court of Ohio held valid, and enforced, the decision of the Secretary of State as to certain nomination papers, without discussion of the broad question we are now considering. It will be observed that in the case under consideration no question is. presented as to the regularity of the nomination papers of the plaintiffs, as to the genuineness of the signatures attached thereto, nor yet as to the fact that a convention was held at the time and place stated therein which nominated the plaintiffs as its candidates. There is not even a question presented as to the fact that this convention was called and held as a Republican convention. It is admitted in the return of the County Clerk, and in the objections which were filed before the county officers, that the Republican Party of Wyandotte County was divided into two factions ; and that a convention for the nomination of county officers was held by each faction of the party, and a full list of nominations was made by each. The attack on the right of the plaintiffs to have their names appear on the official ballot,is based on what has transpired subsequent to the convention. It is not claimed that the convention which placed plaintiffs in nomination has ever reconvened and reversed its action, nor that the convention has ever taken any subsequent action in reference to the matter, nor that the plaintiffs have ever withdrawn from being candidates. But it is claimed and shown that an agreement was entered into between the rival candidates and committees, to the effect that a primary election should be held under the primary election law, and the claims of the rival factions referred back to the Republican voters of the county. It is contended by the defendant that this was done, that the decision of the voters was against the plaintiffs, and that the board of county officers provided for in section 10 had a right to take cognizance of this agreement and enforce it. On the part'of the plaintiffs it is claimed that before the primary election was held, influences were brought to bear by the State Committee against them and in favor of the other faction ; and that thereupon, and before the election, they withdrew from the arbitration, if it may be so termed, and advised their faction to take no part in the primary election. It is shown that a notice of this kind was published by the plaintiffs-. The substantial question then is whether the special tribunal had power, under the law, to enter into an investigation of these matters, to determine the rights of the opposing factions, and to place the candidates of one of them on the official ballot and exclude the other. If they have this power it certainly is one of vast importance ; for if they might exclude the plaintiffs, they might equally, on like objections, have excluded the opposing faction and have placed the names of the plaintiffs on the ballot instead. As the statute makes their decision fina], and no appeal is given to any court or tribunal, if they have full and exclusive jurisdiction of all such controversies, there would seem to be no limit whatever to their power to exclude the candidates of any convention or political party against whose nominations objections might be filed. The State Board, under this construction of the law, might decide between opposing factions in the party to which they owe their own election, or in the opposing party, and absolutely exclude from the ballot the opponent most dangerous to them. The fact that power is liable to abuse is not necessarily a valid objection to its existence. But the liability to such abuse may and ought to be taken into consideration, in a case of doubt, in determining whether or not the Legislature intended to confer it. The Court will take judicial notice of the fact that in a large percentage of elections, the officers designated as tribunals to determine these controversies are themselves candidates before the people at. the election, directly interested in the result, and, therefore, directly interested in the determination of the questions presented to them. It is to their interest to avoid factions within their own party, and to cause divisions and discord in the ranks of their.opponents. Prior to the passage of the Australian Ballot Law any faction of any party, or any citizen, or number of citizens, was at liberty to print and circulate tickets to be used at the election, containing whatever names the authors of the ticket saw fit to place thereon, subject only to punishment for the fraudulent use of party names or headings. Can it be supposed that the Legislature in passing this law intended to strengthen party machinery, and the domination of party leaders and party committees over the members of their political organizations? Can the courts recognize, as was said in the case of The State, ex rel. O’Malley, v. Lesueur, supra, a supervisory control by party committees over the individual members of the party when they are disposed to divide into factions? One of the great evils in our system, against which the better elements of all parties have cried out, is the domination of the party bosses and the undue influence of what are termed machine politicians. It seems to us that the courts, at least, should treat political parties as at all times purely voluntary associations of absolutely independent citizens, who are at perfect liberty to sever their connection with the political party to which they have adhered, at any .moment when they deem it right to do so ; that they may divide' into such groups as may please them, and that courts and tribunals created under the law are not authorized in any case to enforce discipline upon the members of a political party at the call of committees, candidates, or any one else. In the ex-exercise of his right to vote the American citizen is an absolute sovereign. He owes no allegiance, save to his country and his fellow citizens. It is his unmixed duty to cast his ballot as he deems for the best interest of himself and those who are affected by the result of the election. In performing this duty, no partisan authority has rights over him. No official, high or low, may interfere with him. And in construing laws affecting the suffrage of the citizen, that construction should always obtain which affords the citizen the greater liberty and freedom of choice.
It is urged that frauds may be perpetrated by placing on the official ballot the names of persons as candidates of a political party who are not such in fact; and that the voters may be thereby misled and deceived into casting their ballots in a manner which fails to express their real wishes. That there is force in this suggestion must be conceded. It is possible that the Legislature may hereafter deem it wise to restrict in some manner the multiplication °f candidates on the official ballot. But the question now presented is, where rival factions in a political party each puts forward candidates, whether the board, which must act on objections within a very few days after they are filed, and which is given none of the powers usually and necessarily conferred on courts of compelling the attendance of witnesses and the production of papers and of enforcing obedience to its mandates, may finally and conclusively determine the rights of the opposing factions ; place the candidates of one on the official ballot, and exclude those of the other ; or whether the people themselves at the election have the sole and exclusive power to determine which is the false, and which the genuine? This they certainly might have done under the law as it was before the passage of the act under consideration; and we do not think it was the purpose of the Legislature to take this right away from them, or authorize any set of public officials to do so. Cases involving substantially the same question have been passed on by the courts of neighboring States. In the case of Shields v. Jacob, 88 Mich. 164, it was decided:
"When the call for a convention of a political party, results in the holding of two nominating conventions, it is not the province of the board of election commissioners to determine which convention represented the regular nominating convention of the party, but it is their duty to place upon the ballot the names of the candidates certified to them by the committee of either branch of the party represented by the two conventions ; and if the name of a party shall be certified by each of the two committees, it is the duty of the commissioners to print the names so certified without further addition or distinctive designation than such as is contained in the certificate so furnished.”
And in the case of The State v. Allen, 43 Neb. 652, it was held:
"Where two factions of a political party nominate candidates and certify such nominations to the secretary of state in due form of law, the latter will not inquire into the regularity of the convention held by either faction, but will certify to the several county clerks the names of the candidates nominated by each, such practice being in harmony with the rule which requires courts, in case of doubt, to adopt that construction which affords the citizen the greater liberty in casting his ballot.”
And in the recent case of Phelps v. Piper, 67 N. W. Rep. (Neb.) 755, in a carefully considered opinion it was said :
"Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their own will. The voters ultimately must determine e.very such question. The voters constituting a party are, indeed, the only body which can finally determine between contending factions, or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for judicial tribunals, for the courts to undertake in any case to investigate either the government, usages, or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination by an organization which a portion, or perhaps a large majority, of the voters professing allegiance to the particular party believed to be the representatives of its political doctrines and its party government.”
In the case of The People, etc., v. District Court, etc., 18 Colo. 26, it was said in the syllabus that “ it is not the province of either executive or judicial officers to give official sanction to the mere course, regularity or genuineness of any political organization as such.” These cases were decided under statutes substantially like ours, and fully sustain the proposition that no power is vested either in the special board provided by the Australian Ballot Law or in the courts to pass on the merits of the claims of rival factions of a political party ; but that where both hold conventions and nominate candidates, both must be recognized, and given a place on the official ballot. The Supreme Court of Missouri, in the case first cited, holds, that there was a .valid agreement to arbitrate; that the award was made in accordance with that agreement, which was binding on the parties. We have very serious doubts whether the courts can take cognizance of and enforce such agreements with reference to controversies of this character. But if the position of that Court be sound, there was an express withdrawal by the plaintiffs from the submission in this case before the primaries were held, and the award made. The general rule is well established, that an agreement to arbitrate may be revoked at any time before final submission. It seems to us, however,- a matter of politics rather than of contract. In conclusion, without attempting to lay down a definite fixed rule limiting the inquiry of the county officers named on objections to a certificate of nomination, we hold that they have no power to inquire into the rights of opposing factions of a political party, nor to enforce agreements with reference to the withdrawal of one or another set of candidates after their nomination by a convention, nor to give effect to any supervisory power or control of party state committees over local party organizations ; that after the candidates have once been nominated by a convention held by a party or faction of a party and genuine certificates in due form have been filed with the proper officer, the names must be printed on the official ballot under the heading of the party which they claim to represent, unless such candidates withdraw in the manner indicated by the statute.
A premptory'writ is awarded as prayed for.
Martin, C. J., concurring. | [
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Doster, C. J.
The defendant in error, plaintiff below, sued for damages resulting from bodily injuries, caused, as he says, by the defendant’s negligent maintenance of obstructions to sight and hearing at a public road crossing, and by its failure to signal the approach of its train to such crossing, as required by law. The evidence showed that he was traveling in a Wagon along the public highway and nearing the defendant’s track, and that his view of the direction of the approaching train was obstructed by a grove of trees and a line of hedge, extending from the adjacent lands to the defendant’s right-of-way, and to within about 26 feet of the track. The jury found, in answer to special interrogatories, that the hedge and grove of trees in question constituted such an obstruction as to prevent the plaintiff from seeing the approaching train ; and also found that he looked in the proper direction, but was unable to see the track or train because of such obstruction ; and also found that he was unable to hear the approaching train because of the lack of noise in its movement and of the noise of the wind in the trees of the grove. The locomotive collided with his wagon and team, throwing him to the ground, breaking the bones of one of his legs, and also one of his arms, and making large and severe flesh wounds on one of his shoulders, and also making, using the language of his petition, “large contused wounds and gashes on his head,” from all of which injuries, as he says, “he was for a long time confined to his room, and for two months of such time confined to his bed, and has, during all such time endured, and does still endure, á great deal of pain and suffering on account of said injuries.” The petition contains no statement of injurious consequences to his mental faculties or mental health because of any of the hurts received. The place where the accident occurred was on the level, open prairie of Sumner County, distant two miles or more from Belle Plaine, the nearest station. The court below, over the objections of the plaintiff in error, received evidence of impaired memory and weakened mental condition resulting from the injuries received, and instructed the jury, against the defendant’s objection and exception, that damages might be allowed for “ the injury to his memory and mental faculties, if it be found that he suffered such.” The reception of this evidence and the giving of this instruction constitute error. A party is entitled to recover for all consequences which are the natural and probable result of injuries negligently inflicted upon him by another — that is, for those consequences which the common experience of men justify us in believing will result from an injury, the extent and character of which are known — without specially alleging them as grounds of recovery. Any result following an injury, but beyond the usual and natural consequences flowing therefrom, must be specially alleged, so as to apprise the opposing party of an intention to claim damages therefor. We may well conclude that, in consequence of the severe injuries which plaintiff received, he would suffer much physical pain, would be lamed, and disfigured in person ; but it is not according to the common experience of men that such injuries result in mental infirmities. If, however, they do, the injured person may well claim damages therefor; but, being beyond the range of natural and probable consequences, they must be specially alleged.
It is quite questionable, also, whether'the instruction of the Court authorizing the jury to take into ac count, as elements of damage, the diminution of the plaintiff’s powers and capabilities of enjoying social life, and the embarrassment and mortification suffered by him on account of the crippled and disfigured condition of his person, resulting from his injuries, was not erroneous for the same reason ; they not having been specially alleged.
In respect to the maintenance of the hedge and grove on the defendant’s right of way, as obstructions to the view of travelers on the public road, the Court instructed the jury, in three separate paragraphs, as follows :
“If you believe from the evidence that the defendant had growing upon the right of way of its railroad a hedge and trees and shrubs, so as to prevent a person, coming up to said track for the purpose of crossing it, from seeing a train approaching on said,track, and. was keeping and maintaining said right of way in that condition after having knowledge or reasonable means of knowledge of its condition, then you will be justified in finding that the defendant -was guilty of negligence in permitting said right of way to remain in that condition. And if you believe from the evidence that the plaintiff, on approaching the crossing of the railroad track, exercised ordinary prudence and care in attempting to cross said track, and was prevented from seeing the approach of defendant’s train by reason of said hedge, trees and undergrowth, and the plaintiff’s injury was occasioned by the fact that he failed to see said train on account of said trees, hedge and undergrowth, then your finding should be for the plaintiff.
“It is the duty of a railroad company, operating a line of railroad on which it runs trains of cars by locomotive engines, to keep its right of way — that is, a space 50 feet wide on either side of the center of its line of railroad — free and clear from any growth of trees, shrubs or hedges, w'hich will obstruct the view of a traveler on a public highway desiring to cross the railroad, track ; and if you find from the evidence in this case that there was a growth of trees and undergrowth and a hedge, on the right of way of the defendant, which obstructed the view of the plaintiff and which prevented him from seeing the approach of the defendant’s train until it was too late to avoid a collision, then your finding should be for the plaintiff, unless you find that the plaintiff was guilty of such negligence or want of care as occasioned the accident.
“If you believe from the evidence that-the witnesses, W. H. Willey and Geo. Willey, exercised ordinary care and prudence in attempting to cross the defendant’s railroad track, and acted, in going up to and attempting to cross said railroad track, with such caution and care as an ordinarily prudent man would exercise under like circumstances ; and you further find that the servants of the defendant failed to sound the locomotive whistle 80 rods from the crossing, or that the defendant permitted a grow'th of trees and undergrowth and hedge to stand upon its right of way so as to obstruct the view of said witnesses and to prevent them from seeing the approaching train, and that their view was prevented by such trees and undergrowth and hedge, and the accident was caused either by the failure of the servants of the defendant to sound the locomotive whistle, or by reason of said trees and undergrowth and hedge obstructing the view of said witnesses, then your finding must be for the plaintiff.”
The giving of these instructions likewise constitutes error. In the cases of C. R. I. & P. Rly. Co. v. Williams, 56 Kan. 333, and C. R. I. & P. Rly. Co. v. Hinds, id. 758, it was held that the question whether the maintenance upon a railroad right- of way of obstructions to the sight of passing or crossing travelers is negligence, is a question of fact for the jury, and not of law for the court. In the case under consideration, it will be observed that the court below declared the law to be, without qualification, that the maintenance by the company of the hedge and growth upon its right of way, if of sufficient height and density to obstruct the view from the highway, was negligence as to the plaintiff, if injured because thereof. This instruction cannot be upheld.
The above are the views of the majority of this Court, but not of the writer hereof. The general doctrine that negligence is a question of fact for the jury and not of law for the court, is conceded ; but it is also true that, where the facts are admitted, or proved be-3rond dispute, and but one deduction can be drawn from them, the case presents a question of law for the court. K. P. Rly. Co. v. Pointer, 14 Kan. 38, 53. To my mind, this case falls within the doctrine last stated. The allowance upon the right of way of the grove and hedge in question was absolute^ unnecessary to any conceivable purpose of the Company ; and it admitted the fact by cutting the same down soon after the accident in question. This obstruction to a view of the railroad track and approaching trains was a source of daily danger to passing travelers, to the lives of the Company’s passengers and employes, and to the safety of its own property interests. If proved to be of sufficient height, and density, and closeness to the track to obstruct the view from the highway, every element of disputed fact is removed from the field of controversy. There remains, therefore, but a single question : Was the maintenance of such obstruction, subserving no possible use to the Company, negligence in law? In my judgment it was. The courts of Illinois have so held. C. & E. I. R. R. Co. v. Tilton, 26 Ill. App. 362—366; I. & St. L. R. R. Co. v. Hillman, 72 Ill. 235, 239; I. & St. L. R. R. Co. v. Smith, 78 id. 112; Dimmick v. C. & N. W. R. R. Co., 80 id. 338; P. P. & J. R. R. Co. v. Sillman, 88 id. 529.
It is also very questionable to my mind whether it was not the duty of the plaintiff below, being unable, because of his obstructed view, to see whether a train was approaching, or to hear its approach because of the noise of the wind in the trees, to stop, before driving so close to the track, and assure himself of safety ; and whether his failure to do so should not, as a matter of law, be adjudged contributory negligence ; but this view has likewise been precluded by the case of C. R. I. & P. R. R. Co. v. Hinds, supra, and like preceding ones. Regard for one’s own personal safety, and that of others to whom he may stand in dangerous relations, requires the exercise of diligence and caution; and the policy of the law should be to impose penalties upon the negligent injurer, and likewise to withhold relief from the negligent sufferer.
Many other claims of error are urged. None of them, however, impress us as substantial or prejudicial ; but because of the two above ruled upon the judgment must be reversed and a new trial awarded.
Joi-inston and Allen, JJ., concurring. | [
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Maktin, C. J.
On January 9, 1891, Nannie J. Johnson filed her petition against John W. Jones, Sheriff, to enjoin him from, selling a certain tract of land in said county, of which she claimed to be the owner, upon an execution issued to him out of said District Court, in an action wherein Julius Kuhn was plaintiff and Constant & Johnson were defendants, the Sheriff having levied upon the land and advertised the same for sale, and she not being a party to said action. She set up, as an exhibit, a copy of her deed to the property and it shows the conveyance to have been made April 1, 1889, by C. P. Johnson to her, and that the same was recorded April 3, 1889 ; and these are all the facts alleged in the petition which was verified by said Nannie J. Johnson and upon which a temporary injunction was granted. The Sheriff duly filed an answer and afterward an amendment thereto. These contained a general denial except as to facts thereinafter admitted. It was then stated that the Sheriff had levied said execution, and also another wherein Long Brothers were plaintiffs, both being against Charles P. Johnson and Hiram Constant, said Charles P. Johnson being the husband of Nannie J. Johnson and the real owner of said land, and he having made said deed without consideration and for the purpose of hindering, delaying and defrauding his creditors, and further that said Charles P. Johnson was about to engage in the grocery business and to become largely indebted to said Julius Kuhn and Long Brothers and to the Hutchinson Mill Company, and said Nannie J. Johnson well knew said fraudulent purpose of her husband in the execution of said deed; that she simply holds said deed to prevent the application of the land to .the payment of the just debts of her husband; that the conveyance to her is void and that Charles P. Johnson and the estate of Hiram Constant are insolvent. The defendant prayed that the deed be set aside, and that said judgment be decreed a first lien upon said land, and that the same be sold and the proceeds applied to the satisfaction thereof. The plaintiff below replied by a general denial. The cause was called for trial March 28, 1892, and a jury being waived the issues were submitted to the Court, which, held that the burden of proof was on the defendant below. Certain evidence was offered by him, when the plaintiff objected to the introduction of any testimony, on the ground that the answer and the amendment did not state facts sufficient to constitute a defense, and this was sustained ; whereupon the plaintiff below moved for a perpetual injunction and for costs, which motion was sustained. The motion of the defendant below for a new trial was overruled December 1, 1892, and the defendant below duly excepted to these rulings and orders of the Court. He now insists that plain tiff’s petition did not state facts sufficient to constitute a cause of action, and in this he is right; for the issue of an execution presupposes a judgment, and there is no allegation of its date. It may have become a lien before the delivery of the deed from Charles P. Johnson to Nannie J. Johnson. The answer throws some additional light upon the transaction by stating that Charles P. Johnson, against whom two judgments were rendered, was the husband of Nannie J. Johnson, but it is quite obscure ; and there is no allegation that Johnson was insolvent or even indebted at the time he executed the deed to his wife. Neither party seems to have been willing to plead the facts, and each, perhaps, deemed it best to rely chiefly on vague conclusions of fact and of law. The qualified general denial with the other facts or conclusions pleaded did not justify the Court in granting to the plaintiff below a perpetual injunction without evidence ; for the verification of the petition cannot be treated as evidence on the final hearing. The pleadings ought to have -been recast before the trial.
The judgment will be reversed, and a new trial awarded.
All the Justices concurring. | [
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Martin, C. J.
I. The homicide being admitted and the only defense thereto being that it was justifiable, instruction 24 was of paramount importance. There was no evidence that the defendant went before any magistrate with a view of having Mullen bound over to keep the peace, although he probably had abundant' opportunity of doing so during the course of the afternoon and after the difficulty at the billiard hall. He did apply to a constable and a police officer for protection, but this was insufficient according to this instruction. We have been unable to find any authority introducing this element into the law of self-defense. Counsel for the State cite several cases in support of the instruction, and we have examined them all but find in them no justification of the State's contention. Section 9 of the Crimes Act (¶ 2130 Gen. Stat. 1889) is itself a definition of justifiable homicide in this State, and it contains no such element as that required by instruction 24. Instruction 29 further impressed upon the jury the duty of the defendant to go before a justice of the peace for protection as a prerequisite to the plea of self-defense, thus repeating the error in giving instruction 24.
II. Instruction 25 was also erroneous and material. The doctrine that a party unlawfully attacked must “retreat to the wall” before he can be justified in taking the life of his assailant in self-defense does not obtain in this State. The State v. Reed, 53 Kan. 767. Where the defendant is in the wrong and commences the affray, even with no intent to kill or inflict great bodily harm, and the other party being thus provoked makes a deadly assault, then it is the duty of the defendant to retreat as far as the fierceness of the assault will permit him to do without danger of great personal injury to himself before slaying his antagonist. The State v. Rogers, 18 Kan. 78. In the present case it -was for the jury to determine from the evidence whether Hatch of Mullen was in the wrong in commencing the affray at Second and Main streets, which resulted in the death of Mullen. The Court should not assume that one party or the other was first or chiefly in fault when that fact is in issue, but should instruct the jury on the theory of the defendant as well as that of the State, provided each theory finds some support in the evidence as in this case.
Instruction 15 defining murder at the common law is subject to the criticism that it omits the word unlawfully ; but in connection with other instructions we think it could not have been prejudicial to the defendant, although it should be corrected on a retrial. Evidence touching the declarations of Mullen during the afternoon while armed with the shotgun should not have been admitted ; but they were scarcely prejudicial to the defendant, and the judgment would not be reversed on these grounds alone.
For the error of the Court, however, iu giving instructions 24, 25 and 29 the judgment will be reversed and the case remanded for a new trial.
All the Justices concurring. | [
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Allen, J.
This was an action for divorce and alimony brought by E. PI. Johnson, who claimed to be a resident of Bourbon County, Kansas, against her husband who resided in Zanesville, Ohio. The only ground relied on for a divorce was cruelty. The defendant answered denjdng generally and specifically the charges set out in the petition and averring misconduct of the plaintiff. The pleadings show that the parties were married at Port Scott, Kansas, on the 15th of October, 1885 ; that immediately thereafter they went to Zanesville, Ohio, where they resided together until the 24th of December, 1887, when the plaintiff returned to Port Scott, her former home, where she has resided ever since. As the result of the trial the Court found ;—
“ 1st. That the defendant has not been guilty of extreme cruelty toward the plaintiff as charged and alleged in the petition ; and all the issues herein as to divorce are found for the defendant.
“2d. That the plaintiff is not entitled to a decree of divorce from the defendant.
“ 3d. That the plaintiff is entitled to additional alimony and an additional amount for attorney’s fees, and that the defendant should pay the costs of this action.
“4th. That the plaintiff is entitled to the care, custody and control of the minor child, Lucas Havens Johnson, as hereinafter ¡Drovided, until the further order of the court or judge.”
Thereupon the Court rendered judgment denying the plaintiff a divorce, but allowing her $300 for attorneys’ fees ; and for the support of herself and her child — $100 to be paid by the 1st of April, 1892, and $125 on the first day of every third month thereafter until otherwise ordered by the Court. The custody of the child was also awarded to the plaintiff with provisions for visitations by the father. Judgment was also entered against the defendant for costs. The defendant alleges error in rendering judgment against him for alimony, attorneys’ fees and costs, after having determined the main issue in his favor.
His counsel argues that having found against the plaintiff as to the facts on which a divorce was claimed, it being shown and admitted that the parties had been domiciled in Ohio where the defendant still resides the Court was without jurisdiction to do more than dismiss the action ; that the domicile of the wife follows that of the husband except when she separates from him for some just and sufficient cause ; that the wife must submit to the will of the husband as to their place of residence unless he affords her just cause for separation. By section 640 of the Code of Civil Procedure it is provided that the plaintiff in an action for divorce must have been an actual resident of this State for one year before filing the petition. Section 651 reads : “A wife who resides in this state at the time of applying for a divorce, shall be deemed a resident of this state, though her husband resides elsewhere.” Whatever the rule may be in jurisdictions where there is no such statute, the section quoted gives to a wife the right to acquire, independent of the will of her husband, a residence in this State for.the purpose of bringing a suit for divorce. The defendant having answered, the Court was invested with full jurisdiction to determine all questions that might be properly adjudicated in an action for divorce.
On the merits of the case the finding of the Court was against the plaintiff — that she had no ground for divorce. Section 649 of the Code of Civil Procedure provides that the wife may obtain alimony from the husband for any of the causes for which a divorce may be granted. Section 646 makes provision for the allowance of alimony where the divorce is granted, and also for the disposition of the property of the parties in such cases. Section 643 reads,—
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such propertjr, whether the title thereto be in either or both of said parties.”
There can be no doubt that under this section the Court had full jurisdiction to make all necessary and proper orders for the custody and care of the minor child, which was born and had always lived in Kansas. Had the Court power to decree to ‘the plaintiff $125 every three months as permanent alimony for the support of herself and child, and to further adjudge against the defendant the payment of $300 as fees for plaintiff’s attorneys, and costs of the suit? In Van Brunt v. Van Brunt, 52 Kan. 380, where it appeared that the parties had been married for many years, had acoumulated a considerable amount of property, the title to nearly all of which was vested in the wife, and that the parties were in equal wrong, and a divorce was refused, an order dividing the. property and awarding judgment in favor of the husband for $1,000 out of the property held by the wife, was affirmed by this Court,— the decision being rested on the section of the statute last quoted. See also In re Johnson, Petitioner, 54 Kan. 726. In this case a divorce was refused because no ground existed for a divorce. If the action had been brought under section 649 for alimony, the plaintiff must have failed for the -same reason that she failed to obtain a divorce: May the court, then, under the guise of dividing the property of the parties as authorized by section 643, in fact grant permanent alimony payable at stated intervals, not merely out of any property now possessed by the husband, but out of any he may hereafter acquire by his own efforts unaided by the co-operation of his wife, and to an amount which in the course of a few years will far exceed the value of the property he now owns? It appears from the opinion delivered by the Judge trying the case and incorporated in the record, that the whole property of the defendant was worth $1,500 to $1,800. $300 was awarded the plaintiff for her attorneys, and $500 a year for the support of herself and child. In three years this allowance would have taken the whole of the defendant’s property at the highest valuation stated, and would leave him still liable to a charge of $500 a year. It therefore cannot be said that the judgment rendered is in substance merely a division of the property owned by the parties at the time the decree was rendered. It is strictly and technically a decree for alimony, coupled in gross with a provision for the maintenance of the minor child. The distinction between an allowance of alimony and a division of property is discussed at length and clearly recognized in the case of Bacon v. Bacon, 43 Wis. 197. In 2 Am. & Eng. Encyc. Law. 92, alimony is thus defined: “Alimony is an allowance, which by order of court, the husband, or former husband, is compelled to pay to his wife, or former wife, from whom he has been legally separated or divorced, for her support and maintenance.” The foundation for its allowance is the duty of the husband to provide for the wife’s support; and where a divorce or separation occurs because of his fault, the duty of providing for her maintenance continues, and the court by an allowance of alimony compels its performance. A division of the property of the parties is an essentially different thing. No matter which party may be at fault, nor what the decision of the court on the merits of an application for a divorce, the court may for good cause make an equitable division and disposition of the property of the parties. In doing this the power of the court extends only over the property of the parties owned by them at the time the order is made. It cannot reach into the future and bind subsequent earnings or accumulations of either party. The order in this case being strictly in the nature of an allowance for alimony, and made in a-case where the Court finds that no sufficient ground for such an order exists, is erroneous.
The Court also erred in requiring payment by the defendant of $300 as fees for plaintiff’s attorneys, and costs of the suit. Section 644 of the Code of Civil Procedure authorizes the court during the pendency of the suit to make such order relative to the expenses of the suit as will insure the wife an efficient preparation of her case, and on granting a divorce in favor of the wife, or refusing one on the application of the husband, the court may require the husband to pay such reasonable expenses of the wife in the prosecu tion or defense of the action as may be just and proper, considering the respective parties and the means and property of each. Neither of the contingencies named in the statute existed in this case. The wife had been refused a divorce which she applied for. The husband had not asked for a divorce. The wife had not been compelled to employ counsel or incur expenses in resisting any application of the husband for a judgment against her. The whole trial was had on charges made by the wife against the husband, which the Court found unsubstantia] and insufficient to warrant a divorce. Under these circumstances it was error to adjudge attorney’s fees and costs against the defendant as a part of the final judgment in the case. Wagner v. Wagner, 34 Minn. 441; 2 Bishop, Mar. & Div. § 416; Newman v. Newman, 69 Ill. 167; Wilde v. Wilde, 2 Nev. 306. The Court had power in this case to make a proper order for the support of the child of the parties. It also had power to make an order for the equitable disposition of the property of the jDarties. But it erred in awarding permanent alimony to the plaintiff, and also in adjudging attorney’s fees and costs against the defendant. The judgment is therefore reversed, and the case remanded for such further proceedings as are consistent with the views herein expressed.
Johnston, J., concurring. | [
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The opinion of the court was delivered by
.JOHNSTON, J. :
It is contended that the amount awarded by the jury is not warranted by the testimony, and that it is so excessive as to betray passion and prejudice on the part of the jury. That Mary Stewart fell while leaving the train, and that it resulted in some injury to her must be conceded, but the cause of the accident and the extent of the injury are matters of dispute. Her theory is that the train did not stop at the station of Douglass a sufficient time to allow the passengers to alight from the cars, and that the train started while she was on the lower step of the car, attempting to step to the depot platform, and that she was thereby thrown between the cars and the platform. On the part of the railroad company it is claimed that the train was stopped the usual length of time, and that Mary Stewart had alighted from the train, but was holding to the railing of one of the cars when the train started, and she was thereby, through her own fault, jerked down and injured.
A reading of the testimony satisfies us that it is sufficient to sustain the finding of the jury that the company, was negligent in starting the train while she 'was endeavoring to alight, and also sufficent to sustain the award of actual damages. ' The amount of the award is quite large, but the testimony offered in behalf of the plaintiff below tends to show that the injury occasioned by the fall was severe, that it resulted in blood passing from her and in sinking spells, and that she has suffered pain ever since the time of the injury, and was unable by reason of her suffering to perform labor or obtain rest and sleep. Considerable testimony was produced in behalf of the company to the effect that she was not interrupted in her regular employment, and that she did not thereafter show evidences of pain or suffering. The conflict, however, has been determined by the jury, and we are unable to say that the sum of $2,000 allowed by the jury is so excessive as to require a reversal.
The items of $500 as exemplary damages and $150 as attorney’s fees which were awarded by the jury cannot be allowed to stand. The allowance of an attorney’s fee, in addition to one for exemplary damages, is conceded to be erroneous, and we find nothing in the testimony which justifies an award in any amount as exemplary damages. Nothing in the conduct of the employees in charge of the train indicates malice or oppression, or any wanton, -willful and deliberate disregard of the rights of the plaintiff below. As slie was not entitled to exemplary damages, no instruction upon that question should have been giyen, and the award made by the jury beyond actual damages should haye been stricken out.
We do not regard the rulings upon the testimony to haye been prejudicial, nor do we deem the objections raised upon the special questions to be material. The jury, in answer to questions concerning the age of the plaintiff and the compensation she was able to earn, stated “We do n’t know.” The testimony upon these questions was somewhat confused and uncertain, and hence the jury may not haye felt able to giye satisfactory answers. We do not think, however, that the questions are very material, nor that any error was committed by the refusal to compel the jury to answer them. We find no other matters in the record which require discussion.
The cause will be remanded, with directions to the district court to disallow and strike out the items for exemplary damages and attorney’s fees, and when the judgment is so modified it will stand affirmed. The costs of this court will be divided between the parties.
All the Justices concurring | [
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The opinion of the court was delivered by
JohnstoN, J. :
This action was brought by the Atchison, Topeka & Santa Fe Railroad Company against the city of Argentine to recover $3,000, being a share of the cost of two viaducts constructed in the city of Argentine by the railroad company, and which the city had agreed to pay. It appears that, prior to to the settlement of Argentine, the railroad company had established large yards, with many tracks', at that location, and that afterward people settled and built homes on both sides of the railroad yards. Two streets were laid out and opened across the yards, which the inhabitants of the city used in going from one side of the .yards to the other. When the city reached a population of 5,000, and had within its limits a smelter and a number of elevators, making a great deal of business in the yards, crossing over the same at grade was deemed to be inconvenient and dangerous. An ordinance was then adopted by the city directing the railroad company to construct a viaduct over all the railroad-tracks operated by it, at a point near a certain avenue to be selected by the city council, and which was to be 20 feet wide, and, with the approaches, would be about 1,388 feet long. It was to be constructed according to certain plans and specifications which had been prepared, at an estimate cost of $15,000. A further provision -was that the railroad company should.also build a foot-viaduct over the same tracks at another point, and it was provided that, on the completion of both viaducts in accordance with the plans and specifications, the city of Argentine should pay to the railroad company $3,000 of the cost thereof. It was provided that on the completion of the viaducts they should be public highways, to be used by the public instead of the grade-crossings, and should be forever maintained and kept in repair by the city, without expense to the railroad company. Other'provisions were made with respect to the change of the grade of the streets to correspond with the approaches to the viaducts, as well as for the reconstruction or widening of the same in certain contingencies, and for the laying of water- and gas-mains under the tracks of the railroad company. It was ■ finally ordained that if, within 30 days after the passage of the ordinance, the railroad company should file in the office of the city clerk a written acceptance of the provisions of the ordinance, it should then become a contract between the city and the railroad company, binding upon both parties. Within the time limited the terms and conditions of the ordinance were accepted by the railroad company. The city selected the locations for the viaducts, and they were built by the railroad company in compliance with the provisions of the ordinance and with the plans and specifications which had been prepared, at an actual cost to the railroad company of about $15,700 ; and, if the usual charges for transportation of material were made, it would add to the amount named from $1,600 to $2,000. The city and its officers knew’’ of the building of the viaducts, and no legal steps were taken to prevent it, and since then the viaducts have been in constant use by the inhabitants and others for teams, vehicles and pedestrians. At a special election in the city, bonds to pay the $3,000 claim of the railroad company and for the construction of certain sewers and the building of a city hall, were voted upon. The bonds have been issued and sold for such purposes, taxes have been levied in the city to pay these bonds, and the sum of $3,000 is in the hands of the city treasurer, set apart as the viaduct fund, having been derived from the sale of the bonds voted for the purpose of paying the $3,000 claim of the railroad company. The claim was duly presented in writing by the railroad company to the mayor and council, with a full account of the items thereof, duly verified as required by law, but payment was refused by the city, when the present action was brought. The railroad company recovered the full amount claimed, and the city complains and presents the single proposition that it had no power to make the contract which was made with the railroad company.
Argentine is a city of the second class, and although • there is no statute which in express terms provides for the building of viaducts in cities of that class, there appears to be ample authority for such a city to build or require the building of viaducts or bridges over railroad-tracks where the convenience and safety of the public make it necessary. In the act governing cities of the second class, authority is given to open and improve streets, avenues and alleys, and to build bridges within the city. (Gen. Stat. of 1889,¶ 788.) It also provided that the city may provide for the passage of railways through the streets and grounds of the city, regulate depots, and depot-grounds, the crossing of railway-tracks, the running of railway - engines, cars and trains within the limits of the city, and make any other and further provisions to prevent accidents at crossings and on the tracks of railways. ( ¶ 821.) In addition to these, there are provisions vesting the care, management and control of the city in the mayor and council, authorizing them to open, widen, extend, or .otherwise'improve the streets and avenues of the city, and to prevent all encroachments upon them, and granting authority to them to enact all such ordinances as they shall deem expedient for maintaining the good government and welfare of the city, its trade and commerce. ( ¶ 787, 811, 812, 824.) Under these general provisions, we think there is ample power in a city of the second class to construct or require the construction of viaducts over railroad-tracks. In addition to these, however, there in express authority given for the construction of bridges. In the more enlarged sense of that word, viaducts over railroad-tracks are included. Worcester defines the word ‘ ‘ bridge : ’ ’ “A pathway erected over a river, canal, road, etc., in order that a passage maybe made from one side to the other.” Webster defines it as “A structure, usually of wood, stone, brick or iron, erected over a river or other watercourse, or over a ravine, railro.ad, etc., to make a continuous roadway from one bank to the other.’.’ The last-named author - ito defines the word “viaduct” as “abridge.” According to modern usage the term ‘‘ bridge ’ ’ may be appropriately applied to the viaducts which were constructed by the railroad company, and we think it may he fairly said that the term was used in that sense in the statute. (Gen. Stat. of 1889, ¶ 788 ; The State v. Gorham, 37 Me. 461.)
It is conceded by the city that, it had the power to compel the railroad company to build the viaducts wholly at the expense of the company; and that the city can build them at its own expense, under the provisions mentioned, there can be little doubt. As the city may construct them entirely at its own expense, no reason is seen why it may not contribute a part of the expense of viaducts determined to be necessary. The questions of necessity and expediency of viaducts, the character and cost of those which the safety and convenience of the public may require, and the means of providing them, including what proportion of the expense should be borne by the city and what by the railroad company, are for the determination of the mayor and council, rather than the court. The fact that the city can compel the railroad company to build a viaduct upon certain conditions at its own expense does not prevent the city from sharing the expense under other circumstances where it is deemed to be just that a division of the expense should be made, and that question, like the others which have been mentioned, so far as the municipality is concerned, rests with the legislative authority of the city.
It is contended that the viaduct is not a public highway, but is constructed over the private property of the railroad company, and for this reason also the power of the. city is questioned. The viaducts were to be constructed at a place to be designated by the city, and to connect with the streets on each side of the tracks-and yards. They were supported by posts of iron, resting on foundations of masonry, braced with iron bolt.s and sway-rods, so as to make a safe and substantial structure. It was provided that the viaducts, when constructed, should be and remain public highways, for the use of the public. The railroad company having accepted the provisions of the ordinance and constructed the viaducts over its yards lias effectually dedicated the land as a public highway, and would be estopped from interfering with the easement so long as it is maintained as a public highway.
Our opinion is that the district court reached a correct conclusion in holding that the city had the power to contract with the railroad company for the construction of the viaducts, and that it is liable for the share of the cost of the same which it agreed to pay. It is unneccessary to determine the validity of the provisions as to future maintenance, and upon that question we express no opinion.
The judgment of the district court will be affirmed.
All the Justices concurring.. | [
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Per Curiam:
There is nothing filed in this case calling for consideration. The clerk of the district court of Labette county certifies to a bill of exceptions in the case, but no duly-authenticated transcript is filed. The appeal must therefore be dismissed. (The State v. Fink, 49 Kas. 577, and cases therein cited.) | [
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The opinion of the court was delivered by ’
HortoN, C. J. :
The Fort Scott, Wichita & Western Railway Company, on the 18th day of May, 1888, made a written contract with J. H. Sparks to transport eight car-loads, consisting of 107 head of cattle and 75 hogs, from Cónway Springs., in this state, via Kansas City, Mo., to Chicago, Ill.,'and to carry Sparks on the train in which his stock was taken. The contract was signed by Sparks and C. M. Stewart, the agent of the railway company, in duplicate. One was delivered to Sparks prior to the shipment of the stock and the other was retained by the agent of the railway company. The contract contained the following provisions :
“For the consideration aforesaid, the said second party hereby further agrees that the said persons in charge of said stock under this contract shall remain in the caboose-car attached to the train while the same is in motion, and that whenever such persons shall leave the caboose-car or pass over or along the cars or track they shall do so at their own risk of personal injury from every cause whatever, and that the said first party shall not be required to stop or start its trains or caboose-cars from depots or platforms, or to furnish, lights for the accommodation or safety of such persons.”
At the date of the contract the stock was shipped from Conway Springs, and Sparks had accompanying him James M. Harper, J. A. Fowler, J. C. Dudley, and R. F. Hargrove, as attendants of the stock. The train consisted of 11 cars of stock, a caboose, an engine, and tender.. Between Conway Springs and El Dorado, Sparks and his men rode in the caboose-car, attached to the train, arriving at El Dorado, in this state, the end of a division, about 8 o’clock p. m. on the 18th. The train stopped at the station, with the engine at the water-tank. Sparks was a regular shipper of stock over the road, and had general knowledge of the depot and yards at the station. Before their arrival at El Dorado, Sparks and his men were notified that they would have to change cabooses. Sparks got out of the caboose after the train had come to a full stop, and started with Harper and their luggage for the outgoing caboose. After the arrival- of the train at El’ Dorado, the incoming caboose was detached from the train and placed on to a switch north of the main track. The outgoing caboose was located on a switch south of the main track, and 400 to 500 feet from the point where the incoming caboose stopped. This caboose had a red light on the outside at its west end. There was only one track — the main track — between the incoming caboose and the outgoing caboose. There were no switch-engines or trains moving at the time in the yards at the station, except the train carrying Sparks’s stock. Main street, near the passenger depot, and not far from where the west end of the stock-train stopped on its arrival at the station, was lighted by an electric arc-light, and there was light at the depot and other parts of the yards. The direction of the outgoing caboose was. pointed out to Harper, who was with Sparks. The¡ latter, with Harper, walked eastward in the direction of the outgoing caboose from 200 to 300 feet. This, caboose was from 200 to 300 feet further east. While proceeding on their way in the direction of the outgoing caboose, they came up to the main stock-train. They mounted with their luggage to the top of tho. nearest car, directly after which they, together with: the other three attendants, were transferred to the-point of the outgoing caboose. ’ They got on the top., of the stock-car about four minutes after leaving the-the incoming caboose. James M. Harper, a witness, for plaintiff below, testified, among other things, as follows :
“Ques. If any one suggested that you get on top-of the car that you did finally get onto, who made the suggestion to get up there? Ans. Mr. Sparks.
“Q,. State fully how he came to make the' suggestion— the circumstances of it? A. That if we got on top of the car in which the stock was loaded we would run no chance of being left, and he was not certain as-to the caboose we were to get into.
“ Q,. I will ask you to state if you didn’t insist on going and getting into the caboose? A. There was an 'argument — a little controversy — between Mr.. Sparks and me, as to what caboose we would get into. I was going to the caboose myself, and he said to get on the train and we would not be left.
“ Q,. What car did you get onto? A. A car belonging to the Missouri Pacific.
“ Q,. Where was this car? A. This car was east of the caboose which we were on.
“Q,. How far east? A. Well, I should judge about a block and a half — a block, possibly.
“Q,. What did Mr. Sparks do after you got on top of the car? A. Mr. Sparks went on ahead to look after the cattle just immediately after we got on
“ Q,. When the train was backed back on to the caboose, where was Mr. Sparks? A. He was on top of the box car.
“Q. And when you climbed onto it? A. Yes, sir.
“ Q,. How many persons up there at that time? A. I am not certain whether all five were up or not on top of that box car.
“Q. What did you do immediately after the train was coupled onto the caboose? A. We put our provisions into the caboose — provisions and luggage.
“Q. How did you do that? A. We handed them down from the top of the car to a person standing at the end of the caboose, receiving them into the caboose.
“Q,. What did you do next — what did Mr. Sparks do? A. Pie went forward to look after the cattle.
“ Q,. After you bad backed up to the caboose or before? A. I think after we had backed on to the caboose ; but, however, I am not certain on that point.
“Q. When you had gotten your luggage down, what did you do next? A. We got on top of the caboose. We were getting into the caboose, or went to get in at the top.
“ Q,., Mr. Sparks was on top of the caboose at this time? A. Yes, sir.
“Q. What became of Mr. Sparks? A. Mr. Sparks ~was knocked off.
“Q. By what? A. By the bridge.
“Q,. What part of the bridge? A. The west end of the bridge.
“ Q,. What part of the west end? A. The south part of the west end.
“ Q,. What was that — what was there? A. The framework of the bridge.
“Q,. Was there a brace there? A. Yes, sir.
“Q,. What struck him? A. I think it was the brace.
“Q,. What became of him when he was knocked off? A. He fell down on the framework of the bridge.”
Sparks testified, among other things, as follows :
“ Q,. Did you have a conversation with Mr. Harper about getting upon that cattle-car, and did n’t he tell you that he wanted to go on the caboose? A: I do n’t remember whether he did or not; I think I had some conversation with him, no doubt.
“ Q,. And he wanted to go on down to the caboose? A. Yes, sir.
“ Q,. And you said, ‘No; we’ll get upon the box car, and then we will be sure to find our car?’ A. Yes, sir.
“Q,. And then you got upon top of the boxcar. Did you get up immediately after this • conversation was had? A. Yes, sir.
“ Q. How soon after this conversation was had before you got up? A. I don’t remember just how long; I suppose it was done quick, of course.
“ Q,. Well, about how long after this conversation was it that you got upon this box car — how long before you went to get up? A. I couldn’t scarcely form an idea what length of time, or what the conversation consisted of.
“ Q,. Don’t you remember, before going on the train, of the employee telling you that before you got there there would be a caboose waiting? A. I don’t remember their telling us, but I knew they had to have a caboose to take us on.
“ Q,. Well, do n’t you remember of their telling you that? A. I don’t remember it. A man wouldn’t have to ask that question.
“Q,. You knew there was always a caboose there to take you on ? A. Yes.
“Q. And that the caboose was generally on the house-track ? A. Yes, sir ; on the east end.
“Q,. On .what is called the ‘ house-track ? ’ A. I don’t know about the track.
“ Q. Well, it is a track that runs from the back of the depot on the south side of the yard. A. I couldn’t say; I hadn’t time to locate the depot.
“Q. You had been there frequently ? A. Yes, sir.
‘ ‘ Q,. You knew the ordinary distance between these cabooses ? A. Yes; I knew about how long the switches were.
“ Q. After you got on top of that car, what became of you? A. Well, they handed down the luggage — some of the other fellows — and went in, and I and another party heard a number of hogs squealing like there was steers laying on them, and we started to go and see about them, but saw we were not able to do it, and immediately started back, and the other party got in. I would have got in, I suppose, if it hadn’t been for the bridge. One man got in ahead of me.
“Q. And you stood there and was waiting until they had got in and out of your way? A. Yes, sir.
“ Q. Were you standing with your back to the engine? A. Yes, sir.
"Q. Looking down toward the caboose? A. Yes, sir.
“Q,. Ready to get in? A. Yes, I was standing ready to get in.
“ Q,. How far was that from the place they hitched ■on to the caboose? A. I couldn’t say certainly; not very far —150 yards, or such a matter
“ Q. At about what rate were the trains running? A. Quite a lively rate; I couldn’t say how fast; it was down grade and, of .course, it was double-quick.
“ Q. What became of you? A. Well, that’s as far as I know.
“ Q. Well, where do you remember of being? A. They brought me back home to Conway Springs.”
When Spai’ks was knocked off of the top of the caboose he was severely injured. Under the written contract between the Fort Scott, Wichita & Western Railway Company and Sparks, the latter was required to "remain in the caboose-cár attached to the train while the same is in motion.” This was a reasonable ■contract. It was intended for the safety and convenience of Sparks, who was a passenger, as well as for the protection of the railway company. It does not contravene any law pr a sound public policy. We perceive no good reason why its provisions may not be fully enforced. ( Goggin v. K. P. Rly. Co., 12 Kas. 416 ; Sprague v. Mo. Pac. Rly. Co., 34 id. 351; Express Co. v. Foley, 46 id. 457; Pa. Rld. Co. v. Langdon, 92 Pa. St. 21; O’Donnell v. A. V. Rld. Co., 59 id. 239; Creed v. Pa. Rld. Co., 86 id. 139, distinguished ; Sedgwick v. I. C. Rld. Co., 34 N. W. Rep. [.Iowa] 790; Rates v. O. C. Rld. Co., 17 N. E. Rep. 638.)
Sparks, when he climbed upon the top of the car attached to the stock-train, and stood there or walked upon the top of the cars while the train was in motion, was not only in a place of obvious danger, but was also violating the express terms of his written contract. (Railroad Co. v. Lindley, 42 Kas. 714 ; Player v. Burlington, etc., Rly. Co., 62 Iowa, 723 ; Martensen v. C. R. I. & P. Rly. Co., 15 N. W. Rep. 570 ; Goldstein v. M. & St. P. Rly. Co., 21 Am. Rly. Rep. 391; 2 Wood, Railroads, § 304; Pa. Rld. Co. v. Langdon, supra; L. R. & Ft. S. Rly. Co. v. Miles, 13 Am. & Eng. Rld. Cas. 10; Thomp. Carr. 265.)
Upon the admitted facts and the findings of the jury, Sparks cannot recover for his injuries which resulted from his occupying voluntarily, a place of danger on the top of a moving car or train in violation of the terms of his contract. (Pa. Rly. Co.v. Langdon, supra ; Sedgwick v. L. C. Rld. Co., supra; Bates v. O. C. Rld. Co., supra.)
It is suggested on the part of the plaintiff below that he could not, under the terms of his contract, pass over or along the tracks at El Dorado from the incoming and the outgoing caboose without violating his contract, and therefore that he had the privilege of climbing upon the top of the car to ridé to the outgoing caboose. The cabooses were only 400 or 500 feet apart, and Sparks had walked about half of that dis tance in the direction of the outgoing caboose before he got on top of the car. There was no necessity for his crossing any switch to get to the outgoing caboose, and the only trade between the two cabooses was the main one. The jury found that there were no other trains in the yards of the railway company at El Do-rado after Sparks reached there except the train carrying his stock, and the jury also found that there were no switch-engines passing back and forth or running in the yards. Therefore Sparks incurred no risk of any personal injury in walking from the incoming to the outgoing caboose. The yards of the railway company at the station, upon the night of his injury, were not a place of obvious or apparent danger. The court instructed the j ury :
“In this case, it is not denied'that the plaintiff signed a contract of shipment or bill of lading, expressly providing that he would remain in the caboose-car attached to the train while it was in motion, and that this agreement was binding upon the plaintiff, and would be sufficient to prevent a recovery by him upon the admitted facts, unless it were shown that there was either some actual necessity which impelled him after the train arrived at El Dorado to climb 'to the top of a stock-car, and remain in that position until the time of the accident, or some apparent necessity, under uhe surrounding circumstances, which would have led a man of ordinary caution and prudence to do as he did.”
This instruction was misleading upon the facts disclosed upon the trial. It is true that Sparks testified that while walking in the direction of the outgoing caboose someone said “Let’s go on top.” But neither Sparks nor any other witness testified that this excla.mation came from the conductor or anyone in charge of the train.
Again, an attempt is made to excuse the conduct of' Sparks in violating Ms contract, because the conductor, before arriving at El Dorado, informed him and his men that he was in a hurry and would not stop over five minutes at the station, (see Railway Co. v. Elliott, 55 Fed. Rep. 949,) and that it had been his custom upon other occasions to climb on top of the cars and ride to the outgoing caboose. It appears that the stock-train was much longer at El Dorado than five minutes, and it also appears that, at the instance of Sparks, the conductor made a change of three cars containing his stock, which were at the front end of the train when it arrived at the yards, to the end of the train and next to the outgoing caboose. During • the time these cars were being shifted in the trains, Sparks was on top of one of the cars shifted. He did not request the conductor or any of the trainmen to give him more time to walk from one caboose to the other, and he made no request concerning his stock or the train not complied with.
The trial court did not rest this case with the jury upon any custom of the railway company transporting stockmen on the top of cars from one caboose to another at El Dorado. On the other hand, the court observed to the jury that this custom "could not of itself justify or excuse the plaintiff for assuming any extra-hazardous position.” But it does not appear that when Sparks or other persons rode upon the top of cars, with the consent of the trainmen, that they had contracted in writing not to do so. But, waiving all this, the contract in this case is controlling. Its terms cannot be set aside by mere usage or custom. (Mason v. Mo. Pac. Rly. Co., 27 Kas. 83 ; Warren v. S. K. Rly. Co., 37 id. 409; U. P. Rly. Co. v. Estes, 37 id. 715; M. & C. R. Co. v. Womack, 4 S. Rep. 619 ; 1 Thomp. Neg. 453-459 ; Ferguson v. C. I. Rly. Co., 58 Iowa, 293 ; Kroy v. C. R. I. & P. Rly. Co., 32 Iowa, 357 ; Colf v. C. St. P.M. & O. Rly. Co., 58 N.W. Rep.[Wis.] 409 ; Clark v. Railroad Co., 36 N. Y. 138.)
We are referred to I. & St. L. Rld. Co. v. Horst, 93 U. S. 291, as favorable to a recovery by the plaintiff below. In that case the conductor in charge of the train commanded the shippers to get out of the caboose and go on top of the cars. In this case there is no claim that Sparks was commanded by the conductor to go on top of the cars. This case differs from the Horst Case. Here was a written contract that Sparks should remain in the caboose while the car was in motion. Not so in the Horst Case.
Upon the admitted facts and the findings of the jury, the judgment will be reversed, and cause remanded with direction to the district court tó render judgment for the plaintiffs in error, defendants below.
All the Justices concurring. | [
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The opinion of the court was delivered by
HortoN, C. J. :
On November 1, 1885, one George A. Kirkland executed and delivered to Martha Barnitz his promissory note for $1,500, and to secure the payment of the note he executed and delivered at the same time his mortgage deed upon the following-described real estate, to wit: The northeast quarter of section 12, township 10 south, of range 12, in Shawnee county. On the same date, Kirkland executed and delivered to Martha Barnitz 10 interest coupon notes for $60 each, payable at intervals of six months from the date of their execution, which notes wrnre secured by the same mortgage as the principal note. All of the coupon notes were paid except the one falling due November 1, 1890. The principal note and the last-mentioned coupon note not being paid, on January 21, 1893, this action was brought to recover upon the notes and for the foreclosure of the mortgage. Previous to the institution of this action the property was conveyed to various parties, and John L. Beverly was the owner of the equity of redemption of tire property at the time of the commencement of this action. The principal note sued upon in this action provides that—
‘ ‘ It is expressly declared and agreed that this note and the coupons hereto attached are made and executed under and are to be construed by the laws of the state of Kansas in every particular.”
It was stipulated in the mortgage as follows :
‘ ‘ But whether the legal holder or holders of this mortgage elect to pay such taxes, assessments or insurance premiums, or not, it is distinctly understood that the legal holder or holders hereof may immediately cause this mortgage to be foreclosed, and shall be entitled to immediate possession of the premises and the rents, issues and profits thereof ; and the said party of the first part, for said consideration, does hereby expressly waive an appraisement of said real estate.”
On July 7, 1893, judgment was rendered in this action for the sum of $2,077.94, and for the foreclosure of the mortgage. Appraisement was waived in the mortgage, and the judgment provided for six months’ stay. On January 9, 1894, an order of sale was issued, and on February 12, 1894, the property was sold to Martha Barnitz for $2,000, being less than the mortgage debt or judgment. On February 16, 1894, the order of sale haying been duly returned by the sheriff, a motion was filed for the confirmation of the sale, and on February 26, 1894, the sale was confirmed by the court, and the sheriff ordered to execute a deed of the premises to the purchaser. At the time of the hearing of the motion for the confirmation of the sale, John L. Beverly appeared, and showed to the court that he was the owner of the equity in the premises, and in the possession thereof by tenant, and asked the court to order the sheriff to execute to the purchaser a certificate under § 1, chapter 109, Laws of 1893. This request was denied. The court ruled that chapter 109 of the Laws of 1893, relating to the sale and redemption of real estate, is unconstitutional, so far as it is intended to apply to mortgages previously executed and delivered, and that the defendant is not entitled to any right of redemption under the statute, for the reason that the mortgage foreclosed in this action was executed and delivered prior to the enactment of said law. From the order and judgment of the court directing the sheriff to execute a deed to the premises to Martha Barnitz, John L. Beverly appeals to this court. The only question for the court to determine is whether, under the admitted facts, the court below should have ordered the sheriff to execute to the purchaser of the premises a deed or a certificate of purchase.
The judgment will be affirmed under the authority of Watkins v. Glenn, ante, p. 417. In that case it was ruled that —
“Any subsequent law of the state which so affects the remedy as substantially to impair and lessen the value of the contract is forbidden by article 1, § 10 of the constitution of the United States, which ordains that ‘ no state shall .' . . pass any . .. . law impairing the obligation of contracts.’ Chapter 109, Laws of 1893, concerning the sale and redemption of real estate, has no retroactive operation, and therefore does not apply to mortgage contracts existing at and before its passage. If the legislature intended the act to apply to such contracts, it violated article 1, § 10 of the constitution of the United States.”
Judgment affirmed.
JOHNSTON, J., concurring.
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The opinion of the court was delivered by
Martin, C. J. :
On November 1, 1885, George A. Kirkland executed a negotiable promissory note to Martha Barnitz for $1,500, payable in five years, with interest at 8 per cent, per annum, and after maturity at the rate of 12 per cent, per annum, which note was secured by a mortgage on a quarter-section of land in Shawnee county, Kansas, appraisement being waived. The land was afterward sold to John L. Beverly, subject to the mortgage. On January 21, 1893, an action was commenced in the district court of Shawnee county to obtain judgment upon said note and to fore-' close said mortgage. On July 7, 1893, a personal judgment was rendered for $2,113.46, bearing interest from that date at the rate of 12 per cent, per annum, and $44.95 costs, and the land was ordered to be sold for the payment of said judgment. On January 9, 1894, an order of sale was issued, and the property was sold to Martha Barnitz by the sheriff on February 12, 1894, for $2,000. On February 19, 1894, John L. Beverly filed a motion asking that, upon confirmation of the sale, the court order, adjudge and determine that said real estate is subject to redemption as provided by chapter 109 of the Laws of 1893, ( which took effect March 17, 1893,) and that the sheriff be ordered and directed to make to the purchaser the certificate of sale mentioned in said chapter, he being in actual possession of said real estate by his tenant, the same never having been abandoned, but being occupied in good faith. ■ This relief was refused by the court, and it was ordered that the sale be confirmed and a deed executed by the sheriff to the purchaser for said premises, holding that said chapter 109 is unconstitutional so far as intended to apply to mortgages previously executed and delivered. On a proceeding in error in this court, said judgment was affirmed. The companion case of Watkins v. Glenn was decided at the same time, and the opinions appear ante pp. 417 et seq. (40 Pac. Rep. 316-326). The plaintiff in error asks a rehearing.
Does this statute impair the obligation of this prior contract? If it does so in the slightest degree it must be held unconstitutional as to such contract. If, on the other hand, the act affects only the remedy, or some provision of the contract which is inoperative and void under the laws of Kansas where the contract was made, then it must be held valid ; and all legal presumptions, so far as this court is concerned, favor the validity of the act. (Cooley, Const. Lim. 216, 217). When Chief Justice Marshall delivered the opinion of the supreme court of the United States in Sturges v. Crowninshield, 4 Wheat. 122, the learning upon the inhibition “No state shall . . . pass any . . . law impairing the obligation of contracts” was well-nigh exhausted. Little was left for other or subsequent judges of that tribunal but to apply the law as there clearly laid down. The legislature of New York had in 1811 enacted an insolvent law which not only purported to liberate the person of the debtor, but to discharge him from all liability for any debt contracted previous to his discharge, on surrendering his property in the manner prescribed by the act; and it was held that, in so far as it purported to discharge a debtor from his obligation without performance, it was invalid, but not so as to releasing the debtor from imprisonment, then a common and very persuasive remedy. The court says (p.197):
“A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract. In the case at bar, the defendant has given his promissory note to pay the plaintiff a sum of money on or before a certain day. The contract binds him to pay that sum on that day; and this is its obligation. Any law which releases a part of this obligation must, in the literal sense of the word, impair it. Much more must a law impair it which makes it totally invalid and entirely discharges it.”
And again (pp. 200, 201):
‘ ‘ The distinction- between the obligation of a contract and the remedy given by the legislature to enforce that obligation has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the -wisdom of the nation shall direct. Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it; but the state may refuse to inflict this punishment, -or may -withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation.”
See, also, Mason v. Haile, 12 Wheat. 370; Beers v. Haughton, 9 Pet. 329, 359 ; Penniman’s Case, 103 U. S. 714, 717.
In Bronson v. Kinzie, 1 How. 311, 315, 316, the court, speaking through Chief Justice Taney, in respect to an Illinois mortgage, said :
“If the laws of the state passed afterwards had done nothing more than change the remedy upon contracts of this description, they would be liable to no constitutional objection, for, undoubtedly, a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It- must reside in every state to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community. And, although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not 'follow that the law is unconstitutional. "Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the constitution.”
In Terry v. Anderson, 95 U. S. 628, it was held that an enactment reducing the time prescribed by the statute of limitations in force when the right of action accrued is not unconstitutional, provided a reasonable time be given for the commencement of a suit before the bar takes effect. The court says (p. 633): “The parties to a contract have no more a vested interest in a particular limitation which has been fixed than they have an unrestricted right to sue.”
In Antoni v. Greenhow, 107 U. S. 769, 774, 775, although the Virginia funding act of 1871 required the state to receive certain coupons for all taxes and demands due her, and authorized the writ of man-damns to compel the proper tax-collector to receive the same, yet the act of 1882, which required the coupon holder to first pay his taxes in cash and file his coupons in the court of appeals, and after a circuitous proceeding receive back his cash in lieu of the coupons, was held to affect only the remedy, and not to constitute an impairment of the contract.
In Life Ins. Co. v. Cushman, 108 U. S. 51, it was decided that the Illinois statute of 1879 entitling the purchaser, in case of redemption, to receive interest upon Ms bid at the rate of 8 per cent, per annum (the previous law prescribing 10 per cent.) was applicable to all decretal sales of mortgaged premises thereafter made, although the mortgage was given before the passage of that statute ; that such reduction in the rate of interest did not impair the obligation of the contract between mortgagor and mortgagee, because the. amendatory statute did not diminish the duty of the mortgagor to pay what he agreed to pay, or shorten the period of payment, or affect any remedy' which the mortgagee had by existing law for the enforcement of his contract; and that existing laws with reference to which the mortgagor and mortgagee must be assumed to have contracted are only those which in their direct or necessary legal operation controlled oí’ affected the obligations of their contract. And in the opinion the court says (pp. 64, 65) :
“The rights of the purchaser at the decretal sale, if one was had, were not of the essence of the mortgage contract, but depended wholly upon the law in force when the sale occurred. The company ceased to be a mortgagee when its debt was merged in the decree, or at least when the sale occurred. Thenceforward its interest in the property was as purchaser, not as mortgagee. And to require it, as purchaser, to conform to the terms for the redemption of the property as prescribed by the statute at the time of purchase does not, in any legal sense, impair the obligation of its contract as mortgagee. It assumed the’position of a purchaser, subject necessarily to the law then in force defining the rights of purchasers.”
And again the court says (p. 66):
“That the reduction of interest to be paid to the purchaser would lessen the probable number of bidders at the decretal sale, and thereby diminish the chances of the property bringing the mortgage debt, are plainly contingencies that might never have alisen. They could not occur unless there was a de-cretal sale, nor unless the mortgagee became the purchaser ; and are too remote to justify the conclusion, as matter of law, that such legislation affected the value of the mortgage contract.”
In Morley v. L. S. Rly. Co., 146 U. S. 162, it was held that a state was not forbidden by the clause of the federal constitution under consideration from legislating, within its discretion, to reduce the rate of interest upon judgments previously obtained in the courts, the judgment-creditor having no contract whatever in that respect with the judgment-debtor. The court held that the state law regulating the rate of interest on judgments formed no part of the contract, and quoted approvingly (p. 171) from the opinion of Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. 213, 343, as follows :
“If the law becomes a part of the contract, change of place would not expunge the condition. A contract made in New York would be the same in any other state as in New York, and would still retain the stipulation originally introduced into it.”
In Curtis v. Whitney, 13 Wall. 68, the court held that a statute which required the holder of a tax-sale certificate, made before its passage, to give three months’ notice, with a copy of the certificate, the name of the holder, and the time the deed will be applied for, to an occupant of the land, if there be one, before he takes his tax deed, does not impair the obligation of the contract evidenced by the certificate ; and accordingly a tax deed was adjudged void for want of the notice. Mr. Justice Miller, in delivering the unanimous opinion of the court, said (pp. 70, 71):
“That a statute is not void because it is retrospective has been repeatedly held by this court, and the feature of the act of 1867, which makes it applicable, to certificates already issued for tax sales, does not of itself conflict with the constitution of the United States, nor does every statute which affects the value of a contract impair its obligation. It is one of the contingencies to which parties look now in making a large class of contracts, that they may be affected in many ways by state and national legislation. For such legislation demanded by the public good, however it may retroact on contracts previously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to the other party, there is no restraint in the federal constitution, so long as the obligation of performance remains in full force.”
In each of the foregoing cases, except that cited from 1 How. 311, the supreme court of the United States held that the state statute enacted subsequently to the making of the contract affected the remedy only and not the obligation of the promisor to perform his contract, and other cases of like character might be cited. In some cases expressions have been used in the opinions of the judges which, if taken alone, would obliterate the line of demarkation between the obligation of the contract and the remedy for its enforcement; but, as was well said by Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. 333, “The positive authority of a decision is coextensive only with the facts on which it is madeand opinions of judges are to be understood in the light of the issues to be decided, and as limited by them. Thus, in Louisiana v. New Orleans, 102 U. S. 203, Mr. Justice Field, in delivering the unanimous opinion of the court, said (pp. 206, 207) :
“The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced — by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened.”
But it .was therein held that a state law requiring the registry in the office of the controller of judgments rendered against the city of New Orleans on former contracts, before any proceeding could be had for their enforcement, was a reasonable regulation and constitutional. The bonds in judgment were issued in 1854, and prior to the act of .1870 the judgment-creditor was entitled to the writ of mandamus to enforce collection. That act, however, purported to divest the courts of the state of authority to allow any summary process or mandamus against said city to compel payment, and required that judgment-creditors file transcripts of their judgments in the office of the controller, after which the judgments should be paid in the order of their registration. The supreme court of Louisiana held that this act was valid, and the plaintiff’s case was dismissed and all relief denied, and this decree was affirmed by the supreme court of the United States. This decision is in line with Curtis v. Whitney, supra, where the holder of the tax deed was defeated because he did not comply with the subsequent state law requiring him to give to the occupant notice of the time when he would apply for a deed, together with a copy of the tax-sale certificate. The cases are in entire harmony, and yet it seems impossible to reconcile the propositions of the two great contemporary jurists who wrote the respective opinions; each concurring, however, in the opinion of the other. It is too much to expect perfect accuracy and clearness of doctrinal statement at all times, even from great judges.
Edwards v. Kearzey, 96 U. S. 595, involved the validity of the exemption clause in the North Carolina constitution of 1868. Under the prior statutes the exemptions to debtors in that state were quite limited, the provision of the new constitution being much more liberal, and it was held that this was unconstitutional as applied to prior contracts. Some expressions in the opinion of the court, delivered by Mr. Justice Swayne, might lead to the conclusion that no other or further exemptions were permissible than those existing at the date of the contract; but this would be a contradiction of the doctrines announced by the supreme court in prior and subsequent cases, and the concurring opinions of Justices Clifford and Hunt plainly show that the decision was placed upon the ground that the extension of the exemption was so large as to seriously impair the creditor'’s remedy for collection of his debt, Mr. Justice Clifford saying, “Beyond all doubt, a state legislature may regulate all such proceedings in its courts at pleasure,' subject only to the condition that the new regulation shall not in any material respect impair the just rights of any party to the pre-existing contract.” In the opinion, delivered by Mr. Justice Swayne, he says : ‘ ‘ The remedy subsisting in a state when and where a contract is made and is to be performed is part of its obligation; and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract, is forbidden by the constitution of the United States, and therefore void.” And this clause of the opinion is made the syllabus in the report of the case. It would be difficult to justify the first clause of this sentence by any decision of the supreme court, or upon any principle of general jurisprudence. We know that the general remedies provided by our state laws do not form part of a contract, for if so they would necessarily be effective in any state or country where suit was brought to enforce the contract. 1 It is a fundamental principle, not requiring in its support the citation of authorities, that the remedy is governed by the lex forl, and not by the lex loci contractus. A lawyer suing in the courts of this state upon a contract made in Louisiana, New York, or Illinois, would be thought reckless indeed if he should presume to ask remedies allowable under the laws of those states respectively, but not recognized here. The most that, can be truthfully said is that each civilized state is under a moral obligation to afford to foreign or domestic creditors adequate remedies for the enforcement of their rights, but these are subject to change at any time, whether as to existing or future contracts. If by the last clause of the proposition it is meant that any substantial impairment of the contract is forbidden, certainly there can be no objection to it; but the value of a contract may be incidentally lessened by state legislation without impairing its obligation at all, as decided in many cases by the supreme federal tribunal.
In Seibert v. Lewis, 122 U. S. 284, the syllabus in Edwards v. Kearzey, supra, is quoted approvingly, but its principle was in nowise necessary to a decision of the case. By the act of March 28, 1868, the legislature of Missouri authorized the issue of bonds in payment of subscriptions to the stock of railroad companies, and therein stipulated that the county court should from time to time levy, and cause to be collected in the same manner as county taxes, a special tax in order to pay the interest and principal of any such bond, and it was held by the supreme court that it was a material part of this statutory contract that such creditor should always have the right to a special tax, to be levied and collected in the same manner as county taxes, and that a subsequent act of the legislature which took away this right and gave in return no equivalent means of payment was an impairment of the contract. There are other cases of like character, and certainly a creditor who takes the bond of a municipality upon the assurance of a statute which authorizes its issue and provides the means for its payment has a right to rely upon such statute as implicitly as upon the stipulation of the terms of payment in a private contract; but a bondholder would have no just cause to complain if the number of the terms of court should be reduced or the obtaining of an order of attachment rendered more difficult, or the law' as to the appointment of receivers modified. Such matters do not enter into the contemplation of the parties in making a contract, so as to forbid a legislative change, nor follow the contract into other jurisdictions. The correct doctrine is concisely stated in 3 American & English Encyclopedia of Law, 753, as follows :
1 ‘ The remedy provided by law for the enforcement of a contract is no part of its obligation, and whatever pertains merely to the remedy may be changed, modified or abrogated by the legislature, in its discretion and to any extent, provided a substantive remedy be still left to the creditor, and such changes may constitutionally apply to existing contracts. But if the parties to a contract include in it, in express terms, the remedy to be sought upon its breach, or the means to be used for securing its performance, subsequent legislation changing the remedial process they have agreed upon is, as to them, inoperative.”
This brings us to a consideration of the change of our law as to the redemption of real estate. Prior to 1893 lands could not be sold for less than two-thirds of their appraised value, unless appraisement was waived in the mortgage or the bond or promissory note which it was given to secure ; but in case of such waiver the order could not issue for the sale of the lands until six months after the rendition of the judgment. Of course, the mortgagor might redeem at any time before actual sale by paying his debt, interest, and costs. By the act of 3893, the statutes requiring appraisement were repealed so that an order of sale may be issued at any time after the entry of judgment, and the land, after due notice, sold for whatever price it will bring. Upon confirmation, which may be had at any time after the sale when the district court is in session in the county, the creditor is entitled to the proceeds of the sale up to the amount of his judgment, interest, and costs. Under our practice, a personal judgment is rendered in the first instance for the full amount due, and if the proceeds of the sale are insufficient to pay the whole judgment-debt, interest, and costs, they are simply credited thereon so that it is unnecessary to obtain a judgment over as in the federal courts of equity, and a general execution may issue for the balance due. The act of 1893 does not operate upon the rights of the mortgagee until his claim as such has been extinguished, either wholly or to the full extent of the proceeds of the sale of the mortgaged property. The mortgagor, it is true, may redeem the land within a certain time by payment of the sale price and interest thereon ; but this is a matter wholly between him and the purchaser. If the mortgagee or judgment-creditor has deemed it best to become the purchaser, and thus voluntarily change his relation, it is difficult to see how he has any just cause of complaint. By the mortgage contract, the real estate was pledged for the payment of the debt, subject to the equity of redemption. The state by its proper officer has at bis instance sold the property for its payment, and after be gets the proceeds of the sale he has no further claim upon that property, although he may proceed by general execution to obtain any balance due by seizure and sale of other property.
‘ ‘ In this state the common-law attributes of mortgages have been by statute wholly set aside, and the ancient theories demolished. The mortgagee has a mere security creating a lien upon the property, but vesting no title, and giving no right of possession whatever, cither before or after breach. The statute confines the remedy of the mortgagee to an ordinary action and sale of the mortgaged premises.” (Waterson v. Devoe, 18 Kas. 223, 233.)
‘ ‘ In this state a real-estate mortgage conveys no estate or title, in whatever form the mortgage may be drawn ; it creates only a lien upon the mortgaged property; and such a lien can be enforced only by a judgment or order of the district court. A holder of a real-estate -mortgage cannot, even after condition broken, take possession of the mortgaged property, or of the rents or profits thereof, except by consent of all the parties, or by an action in the district court; and he cannot realize upon his mortgage except by judgment of such court. And this is true, whatever the form of the mortgage may be. . . . Where the mortgaged property is not a sufficient security for the mortgage debt, the district court may in some cases appoint a receiver to take charge of the mortgaged property, and to receive the rents and profits thereof, but in no case can the holder of the mortgage, without suit, and without the consent of the mortgagor or his as-signee, take possession of either the real estate mortgaged or the rents or profits thereof.” (Seckler v. Delfs, 25 Kas. 159, 165.)
The act of 1893 does not purport to repeal or modify §254 of the code of civil procedure, (¶ 4349, Gen. Stat. of 1889,) wliich. authorizes the appointment of a receiver in a foreclosure case ‘ ‘ where it appears that the mortgaged property is. in danger of being lost, removed, or materially injured,” or when “the condition of the mortgage has not been performed,” and “the property is probably insufficient to discharge the mortgage debt.” In such cases a receiver maybe appointed at any time after the action is commenced, and the receivership may continue until the sale of the land by the sheriff, when the mortgagee’s claim upon it is satisfied and extinguished, and as a creditor he has no further concern with it. The act of 1893 does not become operative until after the sale, and it matters not to the former creditor how the land is occupied during the period of redemption. Where appraisement is waived, as in this case, the mortgage creditor may now have a sale on request six months sooner than formerly. In certain contingencies, the purchaser may obtain a deed as soon after judgment as under the old law; in others, he may be compelled to wait at most a year longer, but the redemptioner must pay interest in the meantime which is generally accounted an equivalent for use and occupation.
It may be said, however, that the creditor is preju-dicially affected by this change of the law' because purchasers may be unwilling to paj' as high a price as before. But in this country land is not esteemed as in the old world. Here it is largely a subject of investment and speculation, and in many cases the purchaser would prefer a return of his money, with interest, to a deed for the land. A court could hardly say judicially that land would sell for less by reason of this change of the redemption law'. Such considerations, like the lowering of the rate of interest to be paid by the redemptioner, are “too remote,” as held in Life Ins. Co. v. Cushman, supra, “to justify the conclusion, as matter of law, that such legislation affected the value of the mortgage contract.”
A real-estate mortgage is not what it purports to be on its face anywhere. In Kansas it has been shorn of all its common-law incidents, as we have seen, and this is true in most of the other states. It may be stipulated in the mortgage that upon default of payment of principal or interest the mortgagee shall be entitled to possession of the mortgaged premises. It is vain. It may be solemnly agreed that in such case the rents and profits shall be applied toward the satisfaction of the debt and interest. It is as nothing. It may be provided that for any particular delinquency a receiver may be appointed. It is a waste of words. The mortgagor may even be driven by his necessities to bargain away in the mortgage his equity of redemption. Equity will treat it as void. For any such purpose the Kansas short form of mortgage, authorized by statute, (¶" 3886, Gen. Stat. of 1889) which contains not a word upon any of these subjects, is no less potent than the most tedious ironclad instrument ever devised by the wit, the cunning and the avarice of man. All such clauses are treated by the courts as if they were naught.
In Clark v. Reyburn, 8 Wall. 318, a decree of. strict foreclosure was entered on a Kansas mortgage in the United States circuit court. There was no act of congress nor state statute nor rule of court forbidding this practice, nor purporting to give any time to redeem after foreclosure ; yet the supreme court reversed the decree, holding that as the ninetieth equity rule directs that the practice of the circuit courts shall be regulated, where no rule is applicable, by that of the high court of chancery in England, so far as it can be applied consistently with the local circumstances and conveniences of the district where the court is held, and as, by the English practice, a period of at least six months was allowed for redemption, the decree, cutting off the mortgagor without time to redeem, was erroneous. Mr. Justice Swayne, delivering the opinion, said (pp. 321, 322):
‘ ‘ The equity of redemption is a distinct estate from that which is vested in the mortgagee before or after condition broken. It is descendible, devisable and alienable like other interests in real property. As between the parties to the mortgage the law protects it with jealous vigilance. It not only applies the maxim ‘ once a mortgage always a mortgage/ but any limitation of the right to redeem, as to time or persons, by a stipulation entered into when the mortgage is executed, or afterwards, is held to be oppressive, contrary to public policy and void. By the common law, when the condition of the mortgage was broken, the estate of the mortgagee became indefeasible. At an early period equity interposed and permitted the mortgagor, within a reasonable time, to redeem upon the payment of the amount found to be due. The debt was regarded by the chancellor, as it lias been ever since, as the principal, and the mortgage as only an accessory and a security. The doctrine seems to have been borrowed from the civil law. After the practice grew up of applying to the chancellor to foreclose the right to redeem upon default in the payment of the debt at maturity, it was always an incident of the rémedy that the mortgagor should be allowed a specified time for the payment of the debt. This was fixed by the primary decree, and it might be extended once or of tener, at the discretion of the chancellor, according to the circumstances of the case. It was only in the event of final default that the foreclosure was. made absolute.”
And again he said (pp. 323, 324 ) :
‘ ‘ The settled English practice is for the decree to order the amount due to be ascertained, and the costs to be taxed, and that upon the payment of both within six months, the plaintiff shall reconvey to the defendant ; but in default of payment within the time limited, ‘ that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of and in said mortgaged premises.’ We have been able to find no English case where, in the absence of fraud, a time for redemption was not allowed by the decree. The subject was examined by Chancellor Kent, with his accustomed fullness of research. He came to the conclusion that the time was in the discretion of the chancellor, and to be regulated by the circumstances of the particular case ; but he nowhere intimates that such an allowance could be entirely withheld.”
The equity of redemption being a creature of the courts of chancery, and impliedly reserved by the mortgagor, notwithstanding any language incorporated into the mortgage, it results that the state legislatures may deal with and regulate it upon equitable principles, and may abate the rigors of the common-law foreclosure in any reasonable way, having due regard to the obligations of the mortgage contract as interpreted by courts of equity.. The federal courts of equity first allow six months from the decree of foreclosure in which to redeem, as an incident of the remedy, and this may be extended once or oftener, “at the discretion of the chancellor, according to the circumstances of the case.” In some cases — notably in foreclosures upon railways and other extensive properties — the time is extended for years, the subject-matter of the litigation being held in the meantime by receivers appointed upon the same equitable principles as prescribed by our statute hereinbefore cited. Again, such courts refuse to confirm masters’ sales where the purchase-price is grossly inadequate, and in cases of peculiar hardship they deny judgment over, according to the ninety-second equity rule, for any balance due after the application of the proceeds of the mortgaged property in satisfaction of the debt. It is one of the advantages of courts of equity that their remedies are more flexible than those afforded by the common law. In this state, however, the district courts have full equity powers, and yet foreclosures are governed by rules almost inflexible. Personal judgments are rendered for the full amount due, and the proceeds of the mortgaged property are applied only as a credit thereon, so that execution may issue at once for any balance remaining; and, so far as the reports of this court show, no sheriff's sale has ever been set aside on account of inadequacy of price alone, if, indeed, such a thing can be done. (Capital Bank v. Huntoon, 35 Kas. 578, 591, and cases cited.)
In the case cited above from 8 Wall. 318, we have seen that the equity of redemption is regarded by the supreme court of the Union as an estate distinct from the light vested in the mortgagee, and this estate is indefinite in its .duration. In accordance with the English rule, the time given in the first instance is at least six months, and then it may be extended “ once or oftener, at the discretion of the chancellor." And in granting these extensions according to the circumstances of each case the federal courts of equity have not the remotest idea of “impairing the obligation of contracts.” They are endeavoring only to' enforce them in a manner dictated by an enlightened system of jurisprudence that seeks not the financial ruin of the mortgagor in the application of his property to the satisfaction of his debt. From causes upon which all do not agree, and that we need not discuss, the burden of a private debt lias been enormously increased of late years. Farms valued' five years.ago both by borrower and lender at $3,000 or $4,000, and mortgaged for $1,000 are now knocked down under the sheriff’s hammer for less than the mortgage debt, the accumulations of a lifetime being often swept away by the shrinkage, and this through no fault of the mortgagor. Now, may not a state legislature take cognizance of such a condition of affairs and prescribe a rule, for application in its courts, regulating the equity of redemption, and even extending it beyond the time formerly allowed? In other words, why may it not, in- a time of general depression,, reasonably extend the indefinite estate impliedly reserved by the mortgagor, as the federal courts of equity do in particular cases, beyond the six months allowed by the general practice ? This reserved estate belongs to the mortgagor, and because of its indefinite duration the legislature ought to have power to regulate it, within reasonable bounds, so as to protect the interests and equities of both debtor and creditor.
Great reliance has been placed by counsel for defendant in error upon the authority of Bronson v. Kinzie, supra, and it -would be conclusive against our position if a Kansas mortgage of 1885 is to be governed by the rules applicable to the Illinois instrument, of date July 13, 1838, which was enforced in that case. There, in order to secure the payment of a certain bond of $4,000, Kinzie conveyed to Bronson—
“In fee simple, by way of mortgage, one undivided half part of certain houses and lots in the town of Chicago, with the usual proviso that the deed should be null and void if the said principal and interest were duly paid; and Kinzie, among other things, covenanted that, if default should be made in the payment of the principal or interest, or any part thereof, it should be lawful for Bronson, or his repre sentatives, to enter upon and sell the mortgaged premises at ptiblic auction, and, as attorney of Kin-zie and wife, to convey the same to the purchaser, and out of the moneys arising from such sale to retain the amount that might then be due him on the aforesaid bond, with the costs and charges of sale, rendering the overplus, if any, to Kinzie.”
In the opinion the court says ( p. 315):
“As concerns the obligations of the contract upon which this controversy has arisen, they depend upon the laws of Illinois as they stood at the time the mortgage deed was executed. . .
And (p. 318):
‘ 'According to the long-settled rules of law and equity in all of the states whose jurisprudence has been modeled upon the principles of the common law, the legal title to the premises in question vested in the complainant, upon the failure of the mortgagor to comply with the conditions contained in the proviso, and at law, he had a right to sue for and recover the land.
And (p. 319 ) :
“When this contract was made, no statute had been passed by the state changing the rules of law or equity in relation to a contract of this kind. None such, at least, has been brought to the notice of the court; and it must, therefore, be governed, and the rights of the parties under it measured, by the rules above stated. They -were the laws of Illinois at the time ; and, therefore, entered into the contract, and formed a part of it, without any express stipulation to that effect in the deed.”
Thus it appears that, under the laws of Illinois then existing, the mortgage contract was in law what it purported to be on its face — it gave the legal title and the right of possession to the mortgagee on default of payment; and this no Kansas mortgage has ever done, whatever may have been its stipulations. It therefore could not be otherwise than that the laws of Illinois formed part of the very obligation of the contract, and the rights vested by its terms with the sanction of the laws of Illinois could not be divested by any subsequent law of that state. Where a remedy is agreed upon in the contract itself, with the sanction of the state law, the obligation and the remedy are indistinguishable, and in such case it is entirely proper to say that the subsisting remedy is a part of the obligation of the contract. On the other hand, it is- safe to say that the general remedies afforded by the state jurisprudence and practice, entirely aside from anything contained in the contract, never constitute any part of its obligation, and may be changed from time to time ; and this is the doctrine of Bronson v. Kinzie, as quoted in the first reference to the case in this opinion.
The case of Howard v. Bugbee, 24 How. 461, although from Alabama, is in no way distinguishable from Bronson v. Kinzie, as will appear from the briefs and the opinion; and the authority of the earlier case was, of course, followed. In Alabama, as well as in Illinois, the real-estate mortgage was clothed with its common-law' attributes. (Paulling v. Barron, 32 Ala. 9, 11; 1 Jones, Mort., § 18.) Bronson v. Kinzie, supra, was also decided in part upon a subsequent law requiring an appraisement and prohibiting a sale for less than two-tliirds of the appraised value; and there are other cases of like nature, but as appraisement laws and those regulating the equity of redemption depend upon different principles, it is unnecessary to occupy time now with their consideration.
It can be no objection to the statute under review that redemption comes after and not before the sale, for this is a feature favorable to the creditor. He may now' have the sale advertised as soon as his decree of foreclosure is entered, and he is entitled to the proceeds whenever the sale is confirmed, and this may be at any time afterward that the district court is in session. The new law speeds the sale which is unfettered by any stay or appraisement law. Neither can it be a valid objection that the mortgagor or his assignee may redeem the property by paying its sale price with interest thereon, for the utmost relief that the courts can afford the creditor as to the mortgaged property is to sell it and apply the proceeds to the payment of the debt. If any balance remains, the creditor must always look to other property ; and our state laws are as favorable to the creditor in this respect as those of any other state in the Union, and, as we have seen, more favorable than the remedies administered by the federal courts under their practice.
Section 24 of the redemption act in question has been the subject of much criticism. It relates to the appointment of a receiver under certain circumstances after the sale, and the application of the income up to the execution of the sheriff’s deed ; but no question arises under that section in this case, for the record does not show that any receiver was ever appointed or applied for under that section nor under ¶4349, General Statutes of 1889. It would seem that, even if said section should be held invalid, the other sections might yet stand firm.
There is a broad line between this case and Greenwood v. Butler, 52 Kas. 424, where the decree of foreclosure had been entered, and the rights of the parties fixed thereby prior to the passage’of said chapter 109, Acts of 1893.
If a state legislature may totally abolish imprison ment of the debtor as a means of enforcing payment —if it may'shorten the statutes of limitation — if it may reasonably extend and enlarge exemptions of property from sale for the payment of debts — if, where coupons are by law made receivable in payment of taxes, it may require such payment in the first instance in cash to be afterward refunded and the coupons taken up — if it may reduce the rate of interest on redemption from decretal sales — if it may lessen tne interest on former judgments — if it may require the holder of a tax-sale certificate to give three months’ notice of the time when a tax-deed will be applied for — if it' may require transcripts of judgments against a particular city to be filed in a certain office as a prerequisite to payment, and divest the courts of the power to grant remedies in force when the judgments were rendered — if it may reduce the terms of court in number and duration — if it may amend the laws as to attachments, garnishments and receivers so as to take away causes therefor which were before sufficient — if, in short, "it may regulate at pleasure the modes of proceeding” in the courts, and all this as to existing obligations, it is difficult to frame a process of reasoning which would forbid it from so regulating the procedure upon the foreclosure of mortgages as to define and make more certain the indefinite estate impliedly reserved by every mortgagor of real property,- and called into active existence only by the foreclosure, and which indefinite estate is extended by the federal courts of equity for six months in the first instance, and afterward “once or of tener,” in the discretion of the chancellor, according to the circumstances of the case. Even if the statute in question should impair the remedy formerly grantable upon a foreclosure, yet it should not for this reason be held invalid, for there is no constitutional inhibition against an impairment of the general remedies for the enforcement of broken contracts ; and each and every of the special examples just cited is an instance of the impairment or abolition of a remedy allowable and in force when the obliga-: tion was incurred.
Upon the whole, it does not appear that any judgment or decision of the supreme court of the United States requires this court to hold said chapter 109 unconstitutional, whatever may have been remarked by judges in delivering their opinions ; for it is quite impossible to harmonize all that they have said, although the judgments or decisions may not be in conflict. Even doubt of the constitutionality of said chapter is not sufficient to warrant its judicial condemnation, especially by this court. In such case it seems better to leave such condemnation to the final arbiter, the supreme court of the Union.
This opinion is of unusual, perhaps unwarrantable, length ; but the question involved is so important, and the respect of the writer for the deliberate judgment of his predecessor and the associate justice who concurred with him so profound, that it has been deemed best to state fully the reasons which lead to a different conclusion from that reached by the former majority of the court.
The motion for a rehearing will bé granted, the judgment of the district court overruling the motion of plaintiff in error for the issue of a certificate of sale instead of a deed will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
Allen, J., concurring.
Johnston, J. :
This case, together with Watkins v. Glenn, ante p. 417, (40 Pac. Rep. 316,) was submitted upon ample briefs and oral argument at the March, 1895, session, and after a full consideration, a decision was reached in April following, when it was determined by a majority of the court that the redemption law has no retroactive operation, and therefore does not apply to mortgage contracts existing at and before its passage, and that, if the legislature intended the.act to apply to such contracts, it would violate § 10 of article 1 of the federal constitution. The judgment of the court was pronounced by Chief Justice Hokton, and I am still satisfied with the views then expressed. The opinion delivered by Chief Justice Hokton embodies a careful review'of the authorities, and such a clear and forcible exposition of the law, that I am satisfied no additional force could be added by any further comments that I might make. 1 refer to that opinion for the grounds of my dissent to the allowance of a rehearing, and to the judgment of reversal. | [
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The opinion of the court was delivered by
HoetoN, C. J. :
The contention in this case is over the construction of the following provision of § 25, chapter 78, laws of 1893 : “If a voter . . . fails to mark the ballot as required by other section of this act, . . . his ballot shall not be counted for such office,” in connection with the other sections of, that act. The contest court found that Taylor had received 2,775 votes, and Bleakley 2,752, giving Taylor a majority of 23 votes. There were sufficient ballots counted by the contest court for Taylor, after deducting similar ballots counted for Bleakley, where the cross (X) or mark of the voter was entirety outside of the designated square or place at the left of his name, to change the result declared by that court. The district court ruled that the requirement of §25 was mandatory, and therefore refused to count the ballots in which the cross (X) or the mark of the voter was entirety outside of the designated place. This ruling is complained of.
It is insisted that the provision is directory only, and that, if the purpose of the voter can he ascertained with reasonable certainty from the ballot cast by him, effect should be given to it. Unquestionably, prior to the passage of chapter 78 by the legislature of 1893, the rule that the intent of the voter, as evidenced by his ballot, is controlling in the count thereof, was, by a long course of judicial determination, firmly imbedded in the jurisprudence of this state. (Jones v. The State, 1 Kas. 273; Gilleland v. Schuyler, 9 id. 569 ; Wilds v. State Board, 50 id. 147.) But tlie legislature of 1893 adopted what is known as the “Australian-ballot system.” The enactment of that statute was designed to inaugurate an important departure from the mode of voting and counting votes which had existed in this state prior to its passage. If the legislature intended to say that a ballot which had failed to accord with certain specifically enumerated requirements on the part of the voter could not be counted, the purpose of the legislature, irrespective of all considerations as to the intent or effect of such failure, if not unconstitutional, cannot be disregarded by courts. If the statute is harsh in its terms, the remedy is with the legislature. Ofir statute was taken almost bodily from the Iowa law. The supreme court of that state has recently passed upon the pivotal question involved in this case. (Whittam v. Zahorik, 59 N. W. Rep. 57.) That court ruled: “That ballots not marked with a cross in any circle or square should not be counted.” That decision was followed in The State v. Hagen, 60 N. W. Rep.(Iowa) 108. See, also, the following cases : Lindstrom v. Board of Canvassers, 54 N.W. Rep. 280 ; The State, ex rel., v. Russell, 51 id. (Neb.) 465 ; Parvin v. Wimberg, 30 N. E. Rep.(Ind.) 790 ; Curran v. Clayton, 86 Me. 42 ; Bechtel v. Albin, 33 N. E. Rep. (Ind.) 967; Sego v. Stoddard, 36 id.(Ind.) 204; In re Vote Marks, 21 Atl. Rep. (R. I.) 962 ; In re Ballot Marks, 27 id. (R. I.) 608 ; Fields v. Osborne, 60 Conn. 544. In Parvin v. Wimberg, supra, it is observed:
“if a statute expressly declares any particular act to be essential to the validity of an election, or that its omission shall render the election void, the courts, whose duty it is to enforce tlie law as they find it, must so hold, whether the particular act in question goes to the merits or affects the result of the election or not; for such a statute is mandatory, and the court cannot enter into the question of its policy. In this instance it has declared that the mode by which the elector shall express his choice shall be by stamping certain designated squares on the ballot. There is nothing unreasonable in the requirement, and it is simple and easily understood. Furthermore, if he is illiterate, or is in doubt, the law makes ample provision for his aid. If he does not choose to indicate his choice in the manner prescribed by law, he cannot complain if his ballot is not counted. (Kirk v. Rhoads, 46 Cal. 399.) If we hold this statute to be directory only, and not mandatory, we are left entirely without any fixed rule by which the officers of election are to be guided in counting the ballots.”
In Curran v. Clayton, supra, it was decided that under the statute of Maine giving the voter a clear opportunity to designate by a cross-mark (X) his choice of candidates, the place and method of marking the ballot being regulated and defined in the statute, ballots defectively and illegally marked should be rejected.
The provision of chapter 78, requiring the voter to make a cross-mark (X) to the left of the name of the candidate of his choice for the office to be filled, was construed by the house of representatives of the state at its late session. In the contest brought by W. M. Glenn v. C. E. Wightman, claiming to have been legally elected representative from Greeley county, a written report was filed by the election committee. From that report we take the following excerpt:
“After a very careful consideration of the ‘Australian-ballot law,’ and an exhaustive examination of the authorities of this and other states construing its provisions, your committee has reached the unanimous conclusion that none of the ballots [ those in dispute J should have been coimted for either candidate. The great innovation upon the prior law made by the Australian law is that the intention of the voter shall be ascertained by an application to the ballot of the directions contained in the statute, and the provisions of our statute directing the manner in which the voter shall express his choice are mandatory. Another object of the law is to prevent the putting upon the ballot by the voter or any other person any mark save and except the cross in the proper space which will designate that ballot from any other ballot cast. Should the door be open to permit the counting of ballots containing any other than the marks permitted by the statute, it would enable persons who had bargained for votes to agree upon a distinguishing mark whereby it could be determined, by a mere inspection of the ballot, whéther or not the voter had carried out his part of the contract, thereby thwarting one of the main objects of the law.”
The report of the election committee was adopted by the house without dissent, the membership of which contained over 40 persons who were members of the legislature of 1893 which enacted chapter 78.
In Boyd v. Mills, 53 Kas. 594, where all the ballots used by the voters of one township were printed on colored paper instead of white, this court ruled that the ballots were properly counted, but remarked, “ they were furnished by the judges to the voters, and were the only ballots furnished to or used by any voter at the voting-place, and therefore the color of the ballots was not sufficient to prevent the counting thereof and added :
“The secrecy of the ballot has been in nowise impaired ; the voters themselves have manifested no disposition to disregard the law, and it may be fairly inferred that the use of the Qolored ballots was an honest mistake on the part of the judges of the election. Had a part of the ballots been white and a part colored, so as to afford some grounds for identification of the votes cast by the individual electors, a different question would be presented.
“In considering the statute, we are to keep steadily in mind the evident purpose of the legislature in its enactment. It is plain that among the most prominent ends sought to be attained was that of absolute secrecy. Any mark or distinguishing feature on the ballots which would enable a person other than the voter himself to identify the ballot and find out how the elector had voted was intended to be strictly prohibited.
‘ ‘ By this decision we do not intend to say that any of the provisions of the law may be disregarded, or that any officer may escape liability to punishment for violating any of its provisions.”
As sustaining the final ruling of the contest court, our attention is called to Coleman v. Gernet, 14 Pa. County Ct. Rep. 578 ; Johnson v. Board of Canvassers, 59 N. W. Rep. (Mich.) 412 ; The State, ex rel., v. Russell, 51 id. 465 ; Spurgin v. Thompson, 55 id. (Neb.) 297. The Coleman case was decided by an inferior court, but follows the decision of Woodward v. Sarsons, L. R. 10 C. P. 733. In that case, the statute referred to differs from ours. Lord Coleridge, in the opinion, said: jj
‘ ‘ The second section enacts as to what the voter shall do ; that ‘ the voter, having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in an inclosed box.’ This is all that is said in the body of the act about what the voter shall do with the ballot paper. That which is absolute, therefore, is, that the voter shall mark his paper secretly. Plow he shall mark it is in the directory part of the statute.”
The cases of The State, ex rel., v. Bassett, supra, and Spurgin v. Thompson, supra, were decided by the supreme court of Nebraska. The statute of that state does not provide, if the ballot is not marked as required, it shall not be counted. That statute has the provision that—
“When a ballot is sufficiently plain to gather therefrom a part of the voter’s intention, that it shall be the duty of the judges of election to count such part.”
Post, J., in referring to that provision, observed :
“It may be, as contended by respondents’ counsel, , that the proviso in the last section was intended to apply only to ballots otherwise regular, but on -which the voter has failed, through negligence, illiteracy or other cause, to clearly exjjress his intention as to every office named thereon. The inference is strong, however, from the language of the several sections to which reference has been made, that the legislature, by declaring a limited number of provisions to be mandatory, and a compliance therewith essential to a legal ballot, intended the other provisions as directory only.”
Johnson v. Board of Canvassers (Mich.), supra, gives some support to the rule adopted by the contest court in finally counting the ballots, but even that case differs from this. In that case, the official ballot contained the name of but one candidate for each office. A number of ballots voted were not marked in any manner. The court ruled that, in the absence of names of opposing candidates on the ballot,, those referred to should be counted. An examination of the various decisions construing the Australian-ballot law, adopted by so many states of the union, shows that the current and great weight of authority in this country supports the construction adopted by - the Iowa and Maine courts.
It is next insisted if the provisions of §§22 and 25, referred to, are mandatory, that tlie statute is in conflict with § 1, article 5 of the constitution, which ordains that “all elections by the people shall be by ballot, and all elections by the legislature shall be viva voce.” It is conceded that the word “ballot” means “a bit of paper having printed .or written thereon the designation of an office, and the name of a person to fill it, and that the person casting it has a right to do so in absolute secrecy.” The cardinal features of chapter 78 are two : First, an arrangement for polling by which compulsory secrecy of voting is secured; second, an official ballot containing the names of all candidates, printed and distributed under official authority. The act compels a vote by ballot, and absolute secrecy. The marking of the vote in seclusion, and in such a uniform way as not to be readily used for identification, reaches effectively a great class of evils, including violence, intimidation, bribery and corrupt practices, dictation by employers or organizations, the fear of ridicule and dislike, or of social or commercial injury, all coercive and improper influence of every sort depending on a knowledge of the voter’s political action. Voting according to a bargain or understanding is especially aimed at. No man has ever placed his money corruptly without satisfying himself that the vote was cast according to the agreement, or, in a phrase which has become only too common in elections, without proof that (‘ the goods were delivered ; ’ ’ and when there is to be no proof by any distinguishing mark, sign, or otherwise, but the word of the bribe-taker (who may have received thrice the sum to vote for the briber’s opponent), it is idle to place any trust in such a use of money. (Wigmore, Australian Ballot System, 52,) A ballot ought to be cast by the voter intelligently and thoughtfully. If so cast, there is no trouble in complying with the provisions of chapter 78. If a person is illiterate or physically disabled, he may have assistants to mark his ballot. No one is disfranchised by the act, nor are the provisions concerning the marking of the ballot difficult to understand. The legislature, within the terms of the constitution, may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may be deemed necessary to prevent intimidation, bribery, and fraud, providing the voting he by ballot, and the person cast-ing "ballot may do so in secrecy. (Curran v. Clayton, supra; Whittam v. Zahorik, supra; Parvin v. Wimberg, supra; Boyd v. Mills, 53 Kas. 594; Blair v. Ridgley, 41 Mo. 63.) We do not think that the provisions of chapter 78 referred to; even if mandatory, conflict in any way with the constitution.
Finally, it is insisted that the district court, after reaching the conclusion it did concerning the counting of the ballots, should have sent the case back to the' contest court for a new trial, and not rendered final judgment. The case as presented to this court is upon admitted facts. The ballots in dispute are truly copied in the record. The case is before us in the nature of an agreed statement of facts. This court is able from the examination of the admitted facts- to direct the judgment. There appears no necessity for reconvening the contest-court.
The counting of the ballots by the district court is approved and the judgment of the court is affirmed.
All the Justices concurring. | [
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Tlie opinion of the court was delivered by
Martin, C. J. :
At March term, 1895, of the district court of Jackson county the defendant was convicted of the crime of rape upon the person of Anna Bleidissel, a female under the age of 18 years, to wit, the age of 16 years and about 2 months, and he was sentenced to the penitentiary for a term of five years.
I. Anna Bleidissel was not present at the trial, and she gave no testimony by deposition or otherwise. Her father and her mother testified that she was borh December 26, 1878. The offense was alleged to have been committed February 17, 1895. Some of the witnesses for the state testified in cross-examination that in their opinion she was 18 years of age or more. ■ Several witnesses called for the defense stated the extent of their acquaintance with Anna, described her as to height, weight, and development, and were then asked their opinions as to her age. On objection made by the state, these witnesses were not permitted to give their several opinions as to her age. This was error. After fully stating, as far as practicable, the means of knowledge and the basis of an opinion as to the age of an absent person, any witness should be allowed to give such opinion. (Lawson, Ex. & Op. Ev. 473; Rogers, Ex. Test. 10; Foltz v. The State, 33 Ind. 215, 217; Benson v. McFadden, 50 id. 431, 433; K. P. Rly. Co. v. Miller, 2 Colo. 444; Morse v. The State, 6 Conn. 9, 13; Porter v. Manufacturing Co., 17 id. 249, 257, 258 ; The State v. Douglass, 48 Mo. App. 39; Commonwealth v. O’Brien, 134 Mass. 198, 200; Garner v. The State, 28 Tex. App. 561, 562; Jones v. The State, 32 Tex. Or. App. 108; 22 S. W. Rep. 149 ; Weed v. The State, 55 Ala. 13, 15.)
In some of the cases this kind of evidence has been admitted on the same principle that allows the opinions of non-professional witnesses to be given as to the sanity or mental condition of a person, after first stating the facts which have come within their observation. (Baughman v. Baughman, 32 Kas. 538, 643.) The circumstance that Anna's parents had testified to her age did not render the opinion evidence of others incompetent. The jury might not deem the testimony of the parents worthy of credit. There are no degrees of parol evidence. (1 Best, Ev., § 87.) And it is for the jury to judge what weight shall be given to direct and opinion evidence respectively, both of which are admissible in proof of the same fact.
II. The court, although using the term “carnal knowledge" in the fourth instruction to the jury, did not anywhere define it, but in the fifth seemed to assume that evidence of ‘ ‘ actual contact of the sexual organs " was sufficient to warrant a conviction. Proof of actual penetration was necessary, and the jury ought to have been so informed. (Code, Crim. Proc., § 213 ; The State v. Frazier, 54 Kas. 719, 725 ; 2 Bishop, Crim. Law, § 1127.) The, evidence tended to show that the defendant and Martin Fish were drunk ; that ■Mrs. Fish had also been drinking, and that these three and Anna were in the rooms occupied by the Fish family at least a portion, perhaps all, of the night — the defendant and Anna being in bed together part of the time. There was no direct proof of sexual intercourse. It was therefore important to instruct the jury clearly as to the evidence necessary to a conviction for rape upon a female under the age of 18 years; and although the defendant did not ask any instruction as to the law of an attempt to commit the crime, yet we think the court ought to have informed the jury upon the subject. (Code, Crim. Proc., §§ 121, 122, 236 ; Crimes Act, ¶ 2557, Gen. Stat. of 1889 ; In re Lloyd, 51 Kas. 501.)
Some other questions are suggested, but as they are not likely to arise again, we have considered it unnecessary to decide them.
Judgment reversed, and case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
This is an action brought by Jackson township to compel the county clerk of Riley county to charge township taxes against the property situated in Randolph, a city of the third class, included within the boundaries of the township. The sole question presented'is whether a city of the third class, having real and personal property of an assessed valuation of less than $150,000, remains a part of the municipal township in which it is situated, and is subject to township taxes. Paragraph 925 of the General Statutes of 1889 is singularly ambiguous, and if we were compelled to decide this case solely by its provisions, we might have great difficulty in reaching a satisfactory result. But, when construed in connection with the next succeeding paragraph, and also with ¶ ¶ 5489, 5515, 5520, 6885, 7121, and in view of the fact that there is no provision for the assessment of the property of such a city, except by the township trustee, and that there is no provision for the participation of the resi dents of the city in the general elections, except as a part of the township, and that no provision is made for separating the taxeá required for the purpose of building bridges from those levied for other purposes, we reach the conclusion that it is still a part of the township. By ¶7121, it is provided that no city of more than 2,000 inhabitants shall be included within the corporate limits of any township, and such cities are constituted townships for the election of justices of the peace and constables. Provision is also made in other places in the statute for city assessors in such cities, and the other township officers are dispensed with, their functions being performed by city officers. The concluding portion of ¶"925 provides for making cities of the third class, having more than 1,000 population and an assessed valuation of more than $150,000, separate townships. In the absence of any legislation excluding such cities as Randolph from the municipal townships in which, they are situated, and providing for their assessment and taxation, we must hold that they still remain included in and parts of the townships in which they are situated, and subject to all township taxes.
A peremptory writ will be awarded, commanding the county clerk to enter township taxes -against the property in the city of Randolph.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action to recover a 40-acre tract of land in Doniphan county, which is a part of a body of land purchased in 1859 and 1860 for persons who before that time had been the slaves of Joshua Pennell, of North Carolina. In 1855, Joshua Pennell made a will by which he gave to all of his slaves their freedom ; and he directed that his executor, Joshua Winkler, should remove them to one of the free states and purchase for them stock, implements and utensils needed for farming, and procure for them some land, the title of which should be settled in such way that the emancipated slaves and their children and issue should “ have a common use and benefit of the said land during the time they may live on it; but if any of them shall remove from said land and cease to live upon it, then in that case the right and title of such of them as shall remove and cease to live upon it shall be determined, and he, she or they shall no longer hold right to any part of said land.” A fund was set apart with which the executor was to purchase the land, and also pay the expenses of the removal of the emancipated slaves to the free state. Shortly after the making of the will, Joshua Pennell died in North Carolina, leaving eight slaves emancipated by the will, who were generally known by the name of the testator, a part of whom were removed to Kansas, in accordance with the directions of the will, and some of them sold themselves back into slavery, while others declined to avail themselves of the provisions of the will, and never came to Kansas. In 1869 a partition suit was brought in the district court of Doniphan county, in which all of the Pennells who were named in the will, and who had been brought to Kansas, were parties. In that proceeding the land which was purchased for them and upon which they had resided until that time was partitioned among them, and the parties to the proceeding took possession of the portions respectively assigned to them in severalty, and thereafter occupied the same. Under this proceeding, Augustus Pennell obtained the land in controversy in this action, and afterward, in 1877, upon a mortgage given by him and his wife, a judgment of foreclosure was rendered under which the land was appraised and sold. The purchaser at the sheriff’s sale took possession of the land, which was continued until January 8, 1881, when it was conveyed to the plaintiff below, who remained in posses sion of the land for a time, but subsequently some of the Pennells gained possession of the land, and hence she commenced this action, naming as parties Charles Pennell, Newton Pennell, and Felix Pennell, as well as several other parties who disclaimed or were dismissed from the action. The trial 'Court found that the plaintiff was entitled to the possession of the land, and also gave judgment against Charles, Newton and Felix Pennell for $105, for the rents and profits of the land during the time they were in possession of the same.
It is manifest that the rights of the parties under the will and under the purchases of land made for the Pennells by the executor were adjusted and determined in the partition suit in 1870. That proceeding involved an interpretation of the will, and the kind of title acquired under the will, and the conveyances that.were executed. The judgment in that action is conclusive upon the parties thereto, not only as to the matters actually determined, but also as to every other matter which might have been litigated and decided in the action. All of the plaintiffs in error in this case were parties to that proceeding except Felix Pen-nell. He is a son of Sophronia Pennell, who was a party to the proceeding, and to whom a share of the land was allotted. The record does not affirmatively show that he was a party, nor does it show that he had been born when the partition was made. The testimony is not here, and the findings are silent upon that subject. In this state of the record the general finding will be treated as a finding of every special thing necessary to sustain the judgment, and is conclusive in this court on all doubtful or disputed questions of fact. We cannot assume the existence of facts that would impair the validity of the judgment, but should rather presume the facts to be such as are not inconsistent with those specially found and yet will sustain the judgment that was given. It does not appear that any request was made for other and more specific findings, and none of those given can be said to be inconsistent with the judgment. (Kellogg v. Bissantz, 51 Kas. 418.) The land in controversy was allotted, and each of the parties has received the share apportioned to him. The acceptance and disposition of the share so allotted estops any of such parties from questioning the adjudication and division that was made of the property. The judgment of the district court must therefore be affirmed.
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The opinion of the court was delivered by
HortoN, C. J. :
The question for our determination in this case is, whether chapter 109, Laws of 1893, relating to the sale and redemption of real estate, was intended by the legislature to operate retrospectively, so as to apply to mortgage contracts existing at and before its passage. Involved in this is the further question whether, if the act was intended to apply to such contracts, it violates article 1, § 10 of the constitution of the United States, which ordains that “no state shall . . . pass any . . . law impairing the obligation of contracts.” The contention on the part of the plaintiff is, that chapter 109 was not intended by the legislature to apply to mortgage contracts entered into prior to its passage, and that, if such were the intention of the legislature, the act is unconstitutional as to such contracts. It is admitted upon the part of the defendants below that if, under the provisions of the statute of 1893, there is any material change or impairment of the contract rights secured under the mortgage, however slight, it is unconstitutional. But the claim is that the statute acts on the remedy only; that the plaintiff has under that act a substantial remedy to enforce the provisions of his mortgage ; and therefore that it is constitutional and was intended by the legislature to apply to all contracts, whether made before or after its passage. It is conceded —
‘£ That the laws which subsist at the time and place of making the contract, and where it is to be performed, enter into and form a part of it as if they were expressly referred to or incorporated in its terms.” (Von Hoffman v. Quincy, 71 U. S. 535.)
It has been ruled in Seibert v. Lewis, 122 U. S. 284 —
“That the remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and that any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution, and is therefore void.”
Again, in Louisiana v. New Orleans, 102 U. S. 203, the court hold:
“The obligation of the contract is impaired by such legislation as lessens the efficacy of the remedy which the law in force at the time it was made provided, for enforcing it. Whatever legislation lessens the efficacy of the remedy impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened. The Latin proverb, ‘Qui cito dot- bis dot’ — ‘He who gives quickly gives twice’ — has its counterpart in a maxim equally sound — ‘Qui serins solvit minus solvit’ — ‘He who pays too late pays less.’ Any authorization of the postponement of payment, or of means by which such postponement may be effected, is in conflict with the constitutional inhibition.”
Whether the contract sued on is modified or affected by the act of 1893, if held to apply, is a test as to the constitutionality of the act. If that act lessens the value of the mortgage or its security, it cannot operate upon such a contract in existence at the time of its passage. The act provides that the mortgagor shall have 18 months from the date of sale to redeem ; that a receiver can only be appointed in case of waste ; that the income during the period for redemption, except what is necessary to keep up repairs and prevent waste, shall go to the owner or defendant in execution or the owner of the legal title. Under the express condition of the mortgage sued on, in case of default in the payment of the debt secured, the mortgagee is entitled ‘ ‘ to have and receive all the rents and profits of the mortgaged premises to apply upon his note or bond.” Under the former law, a receiver could have been appointed to také possession of the mortgaged premises, collect the rents and profits thereof, and apply the same, less expenses, to the satisfaction of the debt. The act of 1893 deprives the mortgagee of this right, and therefore of a part of the security given by the veiy terms of his mortgage.
Again, the act carves out for the mortgagor, or the owner of the mortgaged property, an estate of several months more than obtainable by him under the former law, with full right of possession, and without paying rents, profits, or taxes. Under the former law, after a foreclosure and sale of the mortgaged premises, the purchaser was given actual possession as soon as the sale was confirmed and the sheriff’s deed issued. Thereafter the mortgagor or the owner had no possession, title or right in any way to the premises. In the counties where the courts áre almost continually in session, as Atchison, Shawnee, Sedgwick and Wyandotte, and in other counties of the state were there are fré-quent sessions of the courts, a sheriff’s deed generally issues in a few days after the sale. To contend that the actual possession of the mortgaged premises by the mortgagor or owner for any specific period of time, whether it be for 6, 12 or 18' months, after a judicial sale, gives- the same security to the mortgagee as the former law which permitted the purchaser of the premises under a decretal sale to take possession as soon as the sale was confirmed and the sheriff’s deed issued, is to claim that the possession of real estate is of no value whatever. As was forcibly observed by AlleN, J., in Greenwood v. Butler, 52 Kas. 424 :
“It cannot be said that a sale of lands with a right of possession remaining in the judgment-debtor for a year and a half thereafter is the same thing as a sale with a right to immediate possession on confirmation of the sale. It is simply the carving out and taking away from the estate originally decreed to be sold another estate limited for a year and a half. It diminishes the value of the lands to be sold by just exactly the value of the tenure, rent free, for a year and a half. The fact that the judgment would still draw interest does not affect the question as to the value of the security to be sold for its satisfaction.”
In our opinion, the obligation of the mortgage contract in this case is substantially impaired by the act of 1893, if that act operates upon contracts in existence at the date of its passage, as ü injuriously affects the value of the mortgage security. The -act, therefore, if applied to past contracts, is unconstitutional and void. We think this conclusion is fully supported by the great weight of authority, and especially by the decisions of the supreme court of the United States, which are controlling in the interpretation of the provisions of the federal constitution. In Pounds v. Rodgers, 52 Kas. 558, it was ruled that —
‘ ‘ The sale of land for delinquent taxes under the statute constitutes a contract between the purchaser and the state, the terms of which are found in the law then in force. All matters relating to the sale and conveyance of land for taxes under any prior statute must be fully completed according to the laws under which they originated, the same as if such.laws remained in force.”
In Bixby v. Bailey, 11 Kas. 359, Brewer, J., speaking for the court, in referring to the redemption law of the 4th of June, 1861, observed :
“It is insisted that under the law in force at the time of the decree and sale the debtor had two years to redeem, and therefore the sheriff's deed was void. The note and mortgage were executed before the redemption law and therefore unaffected by its provisions.”
The justice cited Bronson v. Kinzie, 1 How. 313.
In Ogden v. Walters, 12 Kas. 283, Valentine, J., stated:
“At the time the mortgage was executed in 1858 there was no law authorizing the redemption of land from a sheriff’s sale; and the law of June 4, 1861, cannot have a retroactive operation so as to apply to said mortgage.”
In view of these expressions of this court, delivered by such eminent and painstaking jurists as Brewer and Valentine, and considering that § 1 of chapter 109 provides for deeds to issue at once on sales of real estate not subject to redemption and for certificates to issue on sales subject to redemption, we think the legislature did not intend that the provisions of the act of 1893 should apply to. mortgage contracts existing at the date of its passage. No statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of action, or suits, and especially vested rights, unless the intention that it should so operate is expressly declared. And courts will apply new statutes only to future cases, unless there is something in the very nature of the case, or in the language of the new provision, which shows that they were intended to have a retroactive operation. (Potter, Dwar. Stat. 75 ; id. 162, 163, note.)
Sedgwick, in his work on the Construction of Statutes and Constitutions (2ded.), after stating that retrospective or retroactive statutes, independently of certain exceptions, are within the scope of the legislative authority, yet says that ‘ ‘ such laws as a general rule are objectionable, and the judiciary -will give all laws a prospective operation only unless their language is so clear as not to be susceptible of any other construction.” (p. 173.) Again he says, “The cdurts refuse to give statutes a retroactive construction unless the intention is so clear and positive as by no possibility to admit of any other construction. ” (p. 166.)
If the legislature intended the act to he retrospective in its operation so as to apply to prior mortgages the following decisions of the supreme court of the United States and the reasons given . _ therein are conclusive that the act is un-
constitutional and void as to such contracts : Ogden v. Saunders, 12 Wheat. 213, 327 ; Green v. Biddle, 8 id. 1-107 ; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 43 U. S. 608 ; Gantly v. Ewing, 3 How. 716 ; Ex parte Christy, 3 id. 328 ; Clark v. Reyburn, 8 Wall. 322; Walker v. Whitehead, 16 id. 314; Howard v. Bugbee, 24 How. 461; Planters’ Bank v. Sharp, 17 U. S. 301; Gunn v. Barry, 15 Wall. 601; Brine v. Insurance Co., 96 U. S. 627, 637 ; Memphis v. United States, 97 id. 293 ; Kring v. Missouri, 107 id. 233 ; Butz v. City of Muscatine, 8 Wall. 575 ; Mobile v. Watson, 116 U. S. 305; Curran v. The State, 15 How. 319 ; Louisiana v. New Orleans, 102 U. S. 206; Seibert v. Lewis, 122 id. 284 ; Edwards v. Kearzey, 96 id. 595.
As sustaining the constitutionality of chapter 109 to prior contracts, we are referred to Insurance Co.v. Cushman, 108 U. S. 51; Morley v. L. S. Rld. Co., 146 id. 162 ; Bank v. Francklyn, 120 id. 747 ; Curtis v. Whitney, 13 Wall. 68 ; Antoni v. Greenhow, 107 U. S. 769. The cases mostly commented upon by counsel of defendants below are Insurance Co. v. Cushman, supra, and Morley v. L. S. Bid. Co., supra. In the Cushman Case, the action was between the purchaser of the mortgaged property at the decretal sale and the party entitled to redemption. The mortgagee was not a party, or interested. The court ruled that the Illinois statute for 1879, reducing the interest from 10 per cent, to 8, was valid between the purchaser of mortgaged premises and the party entitled to redemption, although the mortgage was given before the passage of the statute. Mr. Justice Harlan, in delivering the opinion in that case, said, among other things :
“Certainly the obligation of that contract was not impaired by the act of 1879, for it did not diminish the duty of the mortgagor to pay what he agreed to pay, or shorten the period of payment, or interfere with or take away any remedy which the mortgagee had, by existing law, for the enforcement of its contract. The statute in force when the mortgage was executed, prescribing the rate of interest which the amount paid or bid by the purchaser should bear as between him and the party seeking to redeem, had no relation to the obligation of the contract between the mortgagor and the mortgagee. The mortgagor might, perhaps, have claimed that his statutory right to redeem could not be burdened by an increased rate of interest beyond that prescribed by statute at the time he executed the mortgage; but, as to the mortgagee, the obligation of the contract was fully met when it received what the mortgage and statute in force when the mortgage was executed entitled it to demand.”
And after referring to Edwards v. Kearzey, 96 U. S. 595, and other prior decisions of the supreme court of the United States, the same justice remarked :
‘ ‘ These decisions clearly have no application to the ■ case now before the court-. The laws with reference to which the parties must be assumed to have contracted, when the mortgage was executed, were those which in their direct or necessary legal operation controlled or affected the obligations of such contract. We have seen that no reduction of the rate of interest, as between the purchaser of mortgaged property at decretal sale and the party entitled to redeem, affected or could possibly affect the right of the insurance company to receive, or the duty of mortgagor to pay, the entire mortgage debt, with interest as stipu- • lated in the mortgage up to the decree of sale. And the result of the sale in this case shows- that the company, as mortgagor, has received all that it was entitled to demand.”
In this case there is no showing that the mortgagee can or will receive all that he is entitled to demand under the decree complained of. If the plaintiff in this case liad received the full amount of his mortgage, with interest and costs, he would not be here. In the Morley Case, supra, the court ruled that a state statute, reducing the rate of interest upon judgments obtained within the courts of the state, is not, when applied to one previous to its passage, in. violation of § 1 of the fourteenth amendment of the constitution of the United States. Mr. Justice Shiras, in delivering the opinion, observed:
“Interest on a principal sum may be stipulated for in the contract itself, either to run from the date of the contract until it matures, or until payment is made ; and its payment in such a case is as much a part of the obligation of contract as the principal, and-equally within the protection of the constitution. But if the contract itself does not provide for interest, then, of course, interest does not accrue during the running of the contract, and whether, after maturity and a failure to pay, interest shall accrue, depends wholly on the law of the state as declared by its statutes, if' the -state declares that, in case of the breach of a contract, interest shall accrue, such interest is in the nature of damages, and, as between the parties to the contract, such interest will continue to run until payment, or until the owner of the. cause of action elects to merge it into judgment. . . . It is contended on behalf of the plaintiff in error, as stated above, that the judgment is itself a contract, and includes within the scope of its obligation the duty to pay interest thereon. As we have seen, it is doubtless the duty of the defendant to pay the interest that shall accrue on the judgment, if such interest be prescribed by statute, but such duty is created by the statute and not by the agreement of the parties, and the judgment is not itself a contract within the meaning of the constitutional provision invoked by the plaintiff in error. The most important elements of a contract are wanting. There is no aggregatio menMum. The defendant has not voluntarily assented or promised to pay. 'A judgment is in no sense a contract or agreement between the parties.' ”
These cases, and the other United States cases referred to to sustain the decree of the trial court, are clearly distinguishable from the federal decisions cited by us against the act of 1893, if it be given a retrospective operation.
Finally, it is suggested that, if chapter 109 is not retrospective, there will be great confusion in the courts in the mode of procedure in foreclosing and selling mortgaged property. But the act of 1893 itself specifically provides that in some cases real estate may be sold without redemption, and in other cases be sold subject to redemption, hence the act does not command uniformity of procedure. (Laws of 1893, ch. 109, §1.) Further, the suggestion of confusion of procedure in the courts could be used as effectively against the decision in Greenwood v. Butler, supra, as. in this case. There were many judgments rendered in this state before the passage of chapter 109, foreclosing mortgages upon real estate, where the sales did not occur until after the passage of the act. Yet this court held unanimously that the act had no retrospective operation as to judgments rendered before its passage. Therefore the argument concerning the confusion of procedure is one of degree only between judgments and mortgages existing prior to the passage of the act. We think such an argument is without substance.
The judgment of the district court will be reversed and the cause remanded, with direction to the court below to correct the decree complained of, and to order that after sale and confirmation a sheriff’s deed shall issue according to law.
Johnston, J., concurring.
Allen, J. :
I am clearly of the opinion that the legislature intended the act under consideration to apply to the procedure for the enforcement of contracts made prior to its passage. Section 25 reads: “The provisions of tins act shall apply to all sales under foreclosure of mortgage, trust deed, mechanic’s lien, or other lien, whether special or general, and the terms of redemption shall be the same.” No language can be found anywhere in the act expressly excepting prior contracts from its operation.
Probably no clause of the federal constitution of the United 'States has occupied the attention of the courts more than § 10, article 1. It is easy to glean from the authorities language which would seem to afford a clear and unvarying criterion for the determination of every controversy that may arise. In the early case of Sturges v. Crowninshield, 4 Wheat. 196, it was said by Chief Justice Marshall, in defining the meaning of the word “obligation” as used in the constitution: “A contract.is an agreement in which a party undertakes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract.” This definition was cited with approval in Ogden v. Saunders, 12 Wheat. 318. It was there said : “The obligation does not inhere and subsist in the contract itself, proprio vigore, but in the law applicable to the contract.” In Planters’ Bank v. Sharp, 6 How. 301, it was said : ' ‘ One of the tests that a contract has been impaired is, that its value has by legislation been diminished. It is not, by the constitution, to be impaired at all. This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation — dispensing with any part of its force. ’ ’ And in Edwards v. Kearzey, 96 U. S. 595, it was said that “the remedy subsisting in a state when and where a contract is made, and is to be performed, is a part of its obligation.” These expressions of the highest tribunal in the land on a question of construction of the constitution of the United States, concerning which its authority is binding on all state and federal courts, if given literal effect would determine the case in favor of the plaintiff in error. An examination of the cases will show, however, that that tribunal has not adhered to any such plain and simple rule. And the passage cited from Edwards v. Kearzey, which is probably the strongest case to be found in the books on that side of the question, is immediately followed by this statement: ‘ ‘And any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution of the United States, and therefore void.” Other language may be extracted from the cases leading to a diametrically opposite result. In Bronson v. Kinzie, 1 How. 311, which is, perhaps, the leading case-on the subject of the foreclosure of mortgages, it was said :
“If the laws of the state passed afterward had done nothing more than change the remedy upon contracts of this description, they would be liable to no constitutional objection, for, undoubtedly, a state may regu-ulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. And although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional.”
That the legislature of a state, when not restricted
by provisions of the state constitution, has unrestricted power to determine what courts shall be established, what abolished, to fix the forms and modes of issuing and serving process, the times for filing pleadings, for hearing and determining issues raised, as well as the process and manner of enforcing judgments and decrees, provided a remedy is still afforded which will substantially secure the rights of the parties, is affirmed in a great number of cases, decided by both state and federal courts. This must be so in the nature of things. The parties to a contract have no power to create or perpetuate any particular arm of the government. The people in their sovereign capacity, as framers of constitutions, or acting through their representatives in the legislature, determine all questions of general policy, regulate the organization and procedure of courts as they deem best for the general interest of the public. To say that the parties tO' a contract have a vested interest in the identical remedy afforded under the law as it stands at the time the contract is made, would be to render them superior to the law-making power, and to place the government of the country in'the hands of creditors to such an extent that no change whatever could be made cutting off a particular remedy until every past contract was fully enforced. The real difficulty arises when -we undertake to determine what changes in the law have the effect substantially to impair the' obligation of the contract. To determine what is mere matter of form and what is substance might seem easy, but an examination of the authorities discloses great difficulty in the practical application of a rule.
It is perfectly clear that the mere entry of a judgment in favor of the creditor for the amount due him
may be no substantial remedy. The state must do more for Mm. It must force payment of the amount to the judgment by seizure of the person of the debtor or of Ms property. In semi-barbarous countries a common remedy is to seize the body of the debtor and sell him into servitude. The peonage of Mexico is the fruit of such a system. In the early history of the United States a capias for the body of the debtor was an ordinary writ issued on a judgment for money. In the case of Mason v. Hale, 12 Wheat. 370, it was held that “states have a right to regulate or abolish imprisonment for debt as a part of the remedy for enforcing the performance of contracts; ’ ’ and this as applied to prior as well as subsequent contracts. Imprisonment for debt is mentioned in Edwards v. Kearzey, supra, as a relic of ancient barbarism rather than as a remedy to be applied in a civilized country. Yet that imprisonment is a potent means of enforcing the payment of debts is fully understood by every intelligent citizen, as well as by members of the bar ; for we still retain in the code of civil procedure a remedy by arrest in cases of fraud. Formerly all property of the debtor, even to the most necessary household furniture, was subject to seizure and sale, often resulting in inflicting sore distress on the helpless family of the unfortunate or improvident debtor. A more enlightened policy has refused to employ the strong arm of the state in stripping the needy of the last vestige of property to satisfy the hard creditor. Laws affording a reasonable exemption have been held in numerous cases to be good as to' past as well as future contracts. (Morse v. Goold, 11 N. Y. 281; Stephenson v. Osborne, 41 Miss. 119 ; Taylor v. Stockwell, 66 Ind. 505 ; Rockwell v. Hubbell’s Administrators, 2 Doug. 197: Sneider v. Heidelberger, 45 Ala. 126; Hardeman v. Downer, 39 Ga. 425 ; Coleman v. Ballandi, 22 Minn. 144.) One of the strongest cases of this kind is that of Cusic v. Douglas, 3 Kas, 123, where it was held that the homestead exemption given by the constitution could be maintained by the debtor as against a judgment rendered before the adoption of the constitution, when no such exemption existed. This case was decided before that of Edwards v. Kearzey, supra, whore it was held by the supreme court of the United States that a change in the constitution of the state of North Carolina allowing a homestead exemption not exceeding $1,000 in value, and-also exempting certain personal property from execution, was invalid as to past contracts. In an opinion concurring specially, Mr. Justice Clifford took occasion to say that the legislature would have power to exempt wearing apparel, implements of agriculture, tools of the mechanic, etc. The decision of the case was put on the ground that the exemption was excessive and unreasonable as applied to obligations existing prior to the adoption of the constitution.
Laws taking away the remedy of imprisonment for past debts have been upheld in the following cases : Fisher v. Lackey, 6 Blackf. 373 ; Penniman’s Case, 103 U.S. 714; Brunson v. Newberry, 2 Doug. 38. Changes in statutes of limitations, provided a reasonable time is allowed, are universally upheld. ( Smith v. Packard, 12 Wis. 371; Kenyon v. Stewart, 44 Pa. St. 179.) In the following cases the power of the legislature, through a change of remedy, to diminish in some degree the security of the creditor has been upheld : Evans v. Montgomery, 4 Watts & S. 218 ; Bank of Albany’s Appeal, 31 Conn. 63; Stocking v. Hunt, 3 Denio, 274; Conkey v. Hart, 14 N. Y. 22 ; Van Rensselaer v. Hayes, 19 id. 68 ; Watson v. Railroad Co., 47 id. 57. In the fol lowing cases enactments similar to the one under consideration, providing for the redemption of real estate sold under judicial process, have been upheld : Davis v. Rupe, 114 Ind. 588 ; Iverson v. Shorter, 9 Ala. 713 ; Moore v. Martin, 38 Cal. 428 ; Holland v. Dickerson, 41 Iowa, 367 ; Berthold v. Fox, 13 Minn. 501; Butler v. Palmer, 1 Hill, 324. In Van Baumbach v,. Bade, 9 Wis. 559, it was held that an act of the legislature which provided that defendants in actions to foreclose mortgages, which were executed prior to its passage, should have six months’ time in which to answer the complaint, and that the mortgaged premises should not be sold upon the judgments, except upon six months’ previous notice of the time and place of sale, did not violate the provisions of the constitution of the United States. It was said in the opinion :
“ If from sudden and unlooked for reverses or misfortune or any other cause, the existing remedies become so stringent in all or a particular class of actions that great and extensive sacrifices of property will ensue without benefit to the creditor or relief to the debtor, a relaxation of the remedies becomes a positive duty which the state owes to its citizens. The general welfare of the community is committed to its care and keeping, and on fundamental principles of justice it is bound by reasonable regulations to promote and protect it. In passing upon questions like the present, courts must look behind the statute itself, and take notice of the causes which led to its enactment, for otherwise they would be unable to determine whether its regulations are reasonable or not, or were demanded by the state of the times or the financial situation of the country.”
In Newark Savings Institution v. Forman, 33 N. J. Eq. 436, an act providing that in foreclosure proceedings thereafter commenced no personal judgment should be taken was held good as to past contracts, the remedy by action at law for. the deficiency being still left.
The supreme court of Pennsylvania, in Coxe’s Executor v. Martin, 44 Pa. St. 822, sustained a law providing that no civil process should issue or.be enforced against any person in the military service of the state or United States, and ruled that the act extended to a writ 'of scire facias upon a mortgage, unless expressly prohibited by the act of the contracting parties, and that it was not unconstitutional as impairing the obligation of a contract.
In Robertson v. Van Cleave, 129 Ind. 217, a statute reducing the rate of interest which a purchaser might receive under a foreclosure sale was held not unconstitutional.
A critical examination of the cases will disclose the fact that the courts, in determining what amounts to a substantial impairment of the remedy, have entertained widely different views. All the cases concede that the legislature may make changes in the remedies. All concede that there is a limit it may not exceed without violating the federal constitution. No clearly-marked boundary-line beyond which the legislature may not pass has been, or in the nature of things can be, pointed out. Each case must be determined by itself.
In Bixby v. Bailey, 11 Kas. 359, but little consideration seems to have been given to this question, the case of Bronson v. Kinzie, 1 How. 311, only being cited; and in Ogden v. Walters, 12 Kas. 282, it was only necessary to hold that the decree on which the sale was made was valid until reversed. I have no inclination to criticize either of these cases. -By the act of February 27, I860, it was provided that, in all sales of real property thereafter to be made, the land should be appraised, and should not sell for less than two-thirds of the appraised value. The act of June 4, 1861, gave the debtor the right to redeem at anytime within two years after the day of sale. It would be exceedingly difficult to hold that these two acts taken together, or that the redemption act alone, where such an appraisement law was in force, did not materially diminish the value of the creditor’s remedy. The legislature of Illinois, on the 19th of February, 1841, passed an act authorizing the debtor to redeem within 12 months, and a judgment-creditor within three months thereafter. On the 27th of the same month another act was passed requiring that the property be appraised, and providing that it should not be sold for less than two-thirds the appraised value. Prior to the enactment of these laws, the rights of the parties to a mortgage were determined according to the principles of the common law. The legal title was deemed to be in the mortgagee, the mortgagor having only an equity of redemption. It seems a little peculiar that mortgage contracts have never been enforced either by the courts of the United States or by those of England according to their terms. Mortgages do and always have conveyed in terms the title of the property to the mortgagee, following which there is a clause of defeasance providing that the conveyance shall become void if the money which it. is intended to secure be paid in accordance, with its terms. At common law, the mortgagee was entitled to possession of the mortgaged property in case of default. His title, however, notwithstanding the express terms of the instrument, was never held to be complete and absolute. No matter what the terms or provisions of,the mortgage, courts of equity have always held that if the conveyance was made merely to secure the payment of a debt, it was a mortgage, and that even a default in the payment of the money at the time specified would not, under any circumstances, render the deed absolute, but that the creditor might redeem within a reasonable time. To obtain an absolute title, the mortgagee proceeded, either by strict foreclosure to extinguish the equity of the mortgagor, or in chancery to obtain a sale of the mortgaged premises to satisfy his debt. The time and manner of cutting off the equity of the debtor, courts of equity always assumed the right to determine ; it being considered that the creditor who obtained payment of his debt and interest, even at a later day than was specified in the mortgage, had all" he was entitled to in equity and good conscience.
The decision of Bronson v. Kinzie, supra, was placed not merely on the ground that the value of the remedy was impaired, but that the contract itself was attempted to be changed. It is said in the opinion :
‘‘As concerns the law of February 19, 1841, it appears to the court not to act merely on the remedy, but directly on the contract itself, and to engraft upon it new conditions, injurious and unjust to the mortgagee. It declares that although the mortgaged premises should be sold under the decree of the court of chancery, yet that the equitable estate of the mortgagor shall not be extinguished, but shall continue for 12 months after the sale, and it moreover gives a new and like estate, which before had no existence, to the judgment-creditor, to continue for 15 months.”
By the statute of Kansas in force prior to the execution of the mortgage in question in this case, it was provided in what is now ¶" 4495, General Statutes of 1889 : “No real estate shall be sold for the payment of any money or the performance of any contract or agreement in writing in security for which it may have been pledged or assigned, except in pursuance of a judgment of a court of competent jurisdiction ordering such sale.” Both strict foreclosures and sales under powers contained in mortgages are unknown in Kansas. The decisions of the supreme court of the United States cited in the foregoing opinion were in" cases where no such statute was in force. It-appears to me, also, that that court in its more recent decisions has been much more liberal than formerly in upholding the power of the legislatures of the states to change and modify remedies. In Antoni v. Greenhow, 107 U. S. 769, an act of the legislature requiring a taxpayer who sought to pay his taxes with interest coupons of state funding bonds, which were refused by the tax-collector, to pay his taxes in lawful money, and file his coupons in court before he could maintain mandamus to compel their reception, where there was no requirement of such payment by the law as it stood at the time the bonds were issued, and providing that in case the coupons were found to be genuine the money deposited should be returned, was held valid; following Tennessee v. Sneed, 96 U. S. 69.
The case of Insurance Co. v. Cushman, 108 U. S. 51, was a bill to foreclose a mortgage given by Cushman and wife to the insurance company on property in the city of Chicago. By the law in force at the time the mortgage was given, the mortgagor might redeem on payment of the sum for which the property was sold under foreclosure proceedings, with interest at 10 per cent. Subsequently an act was passed reducing the rate of interest in case of redemption to 8 per cent. It was held that —
“ Such reduction in the rate of interest did not impair the obligation of the contract between mortgagor and mortgagee, because the amendatory statute did not diminish the duty of the mortgagor to pay what he agreed to pay, or shorten the period of payment, or affect any remedy which the mortgagee had by existing law for the enforcement of his contract.”
It was said in the opinion :
“The statute in force when the mortgage was executed, prescribing the rate of interest which the amount paid or bid by the -purchaser should bear as between him and the party seeking to redeem, had no relation to the obligation of the contract between the mortgagor and the mortgagee. The mortgagor might perhaps have claimed that his statutory right to redeem could not be burdened by an increased rate of interest beyond that prescribed by statute at the time he executed the mortgage, but as to the mortgagee the obligation of the contract was fully met when it received what the mortgage and statute in force when the mortgage was executed entitled it to demand. The rights of the purchaser at the decretal sale, if one was had, were not of the essence of the mortgage contract, but depended wholly upon the law in force when the sale occurred. The company ceased to be a mortgagee when its debt was merged in the decree, or at least when the sale occurred ; thenceforward its interest in the property was as purchaser, not as mortgagee.”
It was held, further, that the possible diminution of the amount for which the mortgaged property might sell, subject to the right of redemption at the diminished rate of interest, did not sufficiently impair the remedy to render the act void as to the mortgage in suit.
In Bank v. Francklyn, 120 U. S. 747, it appeared that under the statute of Rhode Island the stockholders of a manufacturing company were made jointly and severally liable for all debts of the company until the whole amount ivas paid in, and that “their persons and property may be taken therefor on any writ of attachment or execution issued against the company for such debt in the same manner as on writs and executions against them for their individual debts.” By a subsequent statute the right to so proceed was taken away, and it was provided that all proceedings to enforce the liability of a stockholder for the debts of a corporation shall be either by suit in equity or by an action of debt upon the judgment obtained against such corporation. It was held that this latter statute governed in proceedings to enforce past liabilities, notwithstanding the fact that it clearly operated to delay creditors.
In Morley v. L. S. Rld. Co., 146 U. S. 162, it was held, affirming the decision of the court of appeals of New York, that a statute of that state reducing the rate of interest on judgments from 7 to 6 per cent, operated to reduce the rate of interest on a judgment rendered before the passage of the act, and that it was not a law impairing the obligation of contracts. The case last cited is a very strong one, upholding the power of a legislature to modify remedies.
Ln determining what remedies the state will afford creditors for the collection of their debts, the law-making power has a right to take into consideration all matters affecting the general conditions of the people, and so to temper its processes that while the creditor is given his just dues the debtor may not be needlessly ruined. As contracts, in general, can only be discharged by the payment of money, and as the state is called on to convert the property of the debtor into money, and pay it over to the creditor,.why may not the legislature, in providing remedies, take into consideration those circumstances which every man of even ordinary intelligence cannot fail to note ? The history of England and of the United States is full of instances where debts have have been contracted during a period of great inflation of the currency, as was the case when private bank-notes circulated, which were not legal-tender money, and for the payment of which the government was not responsible, and as happened during the revolutionary war, when the states were flooded with continental currency, and later during the civil war, when treasury notes were substantially the only money in circulation, and coin was at a great premium. It is clearly apparent that debts, contracted when values of all property were greatly inflated by reason of an inflated currency, become a greatly-increased burden when payment is required from a contracted currency. When the values of all property are very greatly reduced, while the nominal amount of the obligation remains the same, the amount of real or personal property -which the state must seize and sell in order to discharge the obligation may be very greatly increased. The hardship to debtors, and the undue advantage gained by the creditors who can acquire from the debt collected a much greater amount of propert}7- than could have been acquired at the time the debt was contracted, is apparent. On the other hand, instances corresponding in number may be cited where the creditor has been paid in a depreciated currency, and at a time when values were greatly inflated ; thus, while nominally receiving the full sum due, they were, in fact, compelled to accept but a portion of the debt in discharge of the whole.
If matters affecting the currency of the country were due solely to the action of individuals, it might be argued with very great force that the legislature ought not to take such fluctuations into consideration ; but when we consider that the kinds and character of circulating medium in use in any country depend almost wholly on legislation, when the medium for the payment of debts and for the exchange of products is regulated wholly by the law-making power of the general government, it would seem that legislatures, in regulating the collection of debts, might and ought to take into consideration the general conditions which determine the ease or difficulty with which debtors in general will be able to discharge their obligations in money. It is a fact well known to all that the country, at the time this law was passed, was feeling a serious depression in values, resulting from a long-continued policy on the part of the general government of contracting the currency. Must the legislature remain blind to these conditions? Must the courts ignore them? It is true that the extent to which such conditions affect values is not susceptible of accurate measurement, and that courts ought not and cannot do otherwise than award payment in lawful money of the stipulated sum which the debtor has agreed to pay. Nor has the legislature, in the act under consideration, attempted to vary by the slightest fraction the sum of money required to discharge a debt. All that- it has undertaken to do is to permit the debtor, after his property has been sold by the sheriff, to redeem it within a stated time, and to permit other creditors also to redeem for the purpose of securing their claims.
A careful analysis of the law will also develop the fact that the changes made are far from being all in favor of the debtor. Under the law as it stood before this act was passed, when there was no express waiver of appraisement contained in the instrument securing the payment of the debt, the law required that lands seized on execution, or to be sold under order of sale, must be first appraised by three householders, and could not be sold for less than two-thirds the ap praised value. In case there was a waiver of appraisement, the lands might be sold without valuation, but no execution could issue on the judgment until after the expiration of six months from its rendition. The sections of the statute containing these provisions are wholly repealed by the act of 1893. The effect of this repeal is to allow execution to issue at once in all cases, and the lands levied on to be sold without ap-praisement and without any restriction as to price, and the proceeds of such sale to be applied in discharge of the debt. In these particulars, it will be observed that important clogs in the way of a speedy collection of debts have- been removed, leaving the case wholly different from that under the laws of Illinois, considered in Bronson v. Kinzie, supra, and of Kansas in the cases of Bixby v. Bailey and Ogden v. Walters, before mentioned. No right of the creditor, as a creditor, is taken away, postponed, or delayed, but rather, in a very great class of cases, the collection of his debt is expedited and made easy. The only change in the law which it can be said affects the creditor injuriously in any manner is that postponing the time when the purchaser may take a deed, and giving the debtor a right to the possession of the property in the meantime. This, however, falls clearly and entirely within the principle considered in the case of Insurance Co. v. Cushman, supra, and cannot possibly affect the creditor, except by reducing the price realized from the property.
The law in. its principal features seems to be eminently just and commendable. It relieves the debtor of the expense of an appraisement; it allows a speedy sale, yet reserves to the debtor the right to redeem the land at anytime within one year. Judgment-creditors may redeem from the purchaser without the expense of advertising a sale again, and a subsequent mortgagee may without suit also redeem. Thus the various creditors of a debtor may, through the instrumentality of one sale, speedily made, obtain in the order of the priority of their respective claims the full benefit of the debtor’s lands. The only questionable feature of the law, which perhaps might be held invalid without affecting the other provisions, is that giving to the debtor the rents accruing between the time of sale and the execution of a deed thereunder. (Insurance Co. v. Brouse, 83 Ind. 62.) Where the security is found to be inadequate, possibly this provision ought not to be upheld as to past contracts. Where the security is adequate, I perceive no objection to the whole law. Often in a case like that under-consideration, where there is a waiver of appraisement in the mortgage, the delay in obtaining a deed under foreclosure proceedings will not be nearly so great as might at first appear. Under the old law, six months must elapse after the rendition of a judgment before’ an order of sale can issue. Then the property must be advertised at least 30 days. After the sheriff makes his return, the sale must be confirmed by the court before the deed can issue. In most counties of the state; it will be found that something near a year is required to obtain a deed. This is the length of time given by the statute exclusively to the defendant, when in possession of the land, for redemption, and for six months thereafter the right extends to creditors and mortgagees as well. But where the lands have been abandoned or are not occupied, the period of redemption for the defendant is six months only, and for the lienholders- three months thereafter. So, in cases where the property is vacant, the remedy is more, speedy and better in all respects than was formerly afforded. If the law does not apply to past contracts, then sales for all debts contracted prior to its passage, where there is no waiver of appraisement, must be made in accordance with the old statute. The property must be appraised and must sell for not less than two-thirds the appraised value. Where appraisement has been waived, there must be a stay of six months after the rendition of judgment.
It seems that a statute so eminently fair and reasonable in its main features and provisions, and which affords in most instances an even better remedy for creditors than was before afforded, ought to be upheld ; that the legislature has not by modifying the remedy materially impaired the obligation of contracts ; and that the law should be followed in all cases whether the obligation was created before or after its passage. | [
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The opinion of the court was delivered by
Allen, J. :
The defendant was charged with the larceny of 16 head of cattle. The information contained six counts. The first one charged the taking of a two-year-old bull and two heifers belonging-to Martha J. Nichols. The other counts charged the larceny of cattle belonging to other parties, alleged to- have been taken at the same time from the premises of said Martha J. Nichols. On motion of the defendant, the county attorney was required to elect on which count of the information the state would rely for conviction, and he elected to stand on the first count. The trial resulted in the conviction of the defendant, from which he appeals.
Many errors are alleged, but we think none of them require extended notice. After the larceny, and before the filing of the information, Martha J. Nichols married a man named Arnold, and it is said that the information is defective becairse it charges the larceny of the property of Martha J. Nichols. The objection is not good. The information correctly states -the ownership of the property at the time of the larceny. The name, Martha J. Nichols, was indorsed on the information. Objection was made to the examination of Martha J. Arnold as a witness, because her name did not appear on the information. The witness was the same person as the one whose name was indorsed on the information, and the defendant must certainly have known who was intended, and could not have been surprised by the introduction of her testimony, she being the person whose property was charged to have been stolen.
The evidence in the case showed that Mrs. Nichols lived near Bird City; that she, with the aid of her sons, kept a herd of cattle ; that they were placed in a corral at night. There were about 75 head of cattle in the corral. On the night of Saturday, June 11, 1893, the cattle were placed in the corral, which was closed with a wire gate. On the next morning the gate was found open, thrown inside, and all the cattle but 16 head were found out in the oat-field. Mrs. Nichols’s sons, with a neighbor, tracked the missing cattle to the vicinity of St. Francis, and found them in a car, which the defendant had engaged, ready to be shipped to Omaha. They found the whole 16 head together, including the cattle belonging to Mrs. Nichols as well as those belonging to other parties, and described in the subsequent counts of the information. The owners of the other cattle were called as witnesses and testified to the fact of ownership, and also to finding their cattle in the stock-yards at St. Francis on the day after they were discovered in the car, they having been turned into the stock-yards from the car. Some of this testimony was stricken out on motion of the defendant, but it is claimed that there was error in the admission of the testimony, and that it was not cured by the attempt to withdraw it from the jury. Under the facts in this case, we think there was no error in the admission of the testimony in the first instance. In proving the larceny of Mrs. Nichols’s cattle, it was entirely proper to show just what was done. Mrs. Nichols’s cattle were not taken separately, but together with 13 others, and it was entirely proper to show that the 13 others were taken from the same corral at the same time, that they were found in the stock-yards at St. Francis, and also to show to whom they belonged, not for the purpose of convicting the defendant of different larcenies, but as facts directly connected with the larceny of the cattle belonging to Mrs. Nichols.
We perceive no error in the ruling of the court on the cross-examination of Orbin Boggs, nor in permitting the indorsement of the name of A. Riddle on the information.
The seventh and eighth instructions correctly state the law, and were applicable to the facts.
■ Complaint is also made of the remarks of the county attorney in Ms argument of the case to the jury. It appears that he attempted to discuss some matters not properly in the case, but on objection by the defendant was promptly cautioned by the court to confine his argument within legitimate limits. Although we cannot say that all of the remarks of the county attorney were proper, yet we are unable to find anything of sufficient importance to require a reversal of the case.
- A motion for a new trial was made and overruled. This, also, is assigned as error. It is claimed that a preponderance of the evidence is in favor of the innocence rather than the guilt of the defendant, and that the evidence entirely fails to show the larceny of the three cattle charged to have been taken, but shows that there was one bull, one heifer, and one steer, instead of one bull and two heifers, as charged in the information. To sustain a conviction, proof of the larceny of any one of the three animals charged to have been taken is sufficient.
. We have examined the testimony in the case, and find ample and satisfactory evidence supporting the verdict of the jury. The cattle were taken on Saturday night, and were found in the possession of the defendant Sunday night, ready to be shipped out on .a train then about to leave for Omaha. There are many circumstances indicating that the larceny was committed by the defendant, aside from the mere fact that he was found in the possession of the cattle. His story that he bought them of Hanson, and that Han.son delivered them to him a mile and a half up the river, and Hanson’s statement in his deposition that he sold the cattle to Labertew and delivered to him 16 head belonging to Mrs. Sawyer, is not very convincing proof of his innocence. It is possible that Han-non may have had some connection with the larceny, but we think the evidence very satisfactorily shows that no such transaction took place as that of the sale and delivery of these cattle by Hanson to Labertew. It is very clear that the cattle found in the defendant's possession came from Mrs. Nichols's corral, and not from Mrs. Sawyer’s. It is seldom that a more satisfactory showing of guilt is made, and we find no reason to set aside the action of the court or jury in the case.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
The Dodge City Water-Supply Company brought an action against the city of Dodge City to recover'for water supplied to the city, and also for the costs of relaying water-mains alleged to have been made necessary by the action of the city in grading the streets. The petition was in two counts, to which answer was made by the city, after which a reply was filed by the company. Upon the issues thus joined the cause came on for trial; and when the jury -was impaneled and sworn and the plaintiff had called its first witness, the defendant objected to the introduction of any testimony by plaintiff under the petition, for the reason that it did not in either of the counts state facts sufficient to constitute a cause of action. This objection was sustained by the court, and the plaintiff then in open court announced that it declined further to prosecute the action. Thereupon the court discharged the jury and rendered judgment dismissing the action at the costs of the plaintiff. 'Within three days thereafter the plaintiff filed its written motion for a new trial, alleging as a reason that the ruling of the court in rejecting all testimony was contrary to law. The motion for a new trial was not heard until the succeeding term of court, when on motion of the defendant it was stricken from the files upon the ground that the motion was improper and unauthorized.
The only question presented for review arises upon the ruling of the court refusing to entertain the motion for a new trial. Was such a motion authorized or necessary to a review? A new trial is only authorized at the end of a trial for the purpose of re-examining an issue of fact in the same court. (Civil Code, § 306.) The objection to the introduction of any evidence raised no issue of fact, and is not an uncommon method of challenging the sufficiency of a petition. When the objection was made the trial court was simply called upon to determine whether the petition contained facts sufficient to constitute a cause of ac tion. The objection to the sufficiency of a petition upon that ground may be taken advantage of by demurrer or by an objection to the introduction of evidence on the trial. (Civil Code, § 91; Brown v. Mining Co., 32 Kas. 528.) The issue raised by the objection was one of law, and in the case of Ritchie v. K. N. & D. Rly. Co., just decided, it was held that a motion for a new trial is not necessary to the review of a decision determining an issue of law. ' Following the rule there laid down, no error was committed by the court in declining to consider the motion for a new trial and in striking the same from the files. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Allen, J.
The defendant was charged, by the County Attorney of Geary County, with having assaulted one James Gage, with intent to kill him. A motion was filed by his attorney to quash the information on various grounds. This motion was argued by counsel, submitted to the Court, and overruled, when the defendant was not present, but was in confinement in the county jail. Afterward he was tried, convicted, and sentenced to imprisonment in the penitentiary for five years. A motion for a new trial was filed on the ground, among others, that the defendant was not personally present during every part of the trial; but the motion was overruled.
Section 207 of the Code of Criminal Procedure provides that ‘ ‘ no person indicted or informed against for a felony, can be tried unless he be personally present during the trial.” This means throughout the whole trial. The State v. Myrick, 38 Kan. 238. In the Code of Civil Procedure, section 265, a trial is thus defined: — “A trial is a judicial examination of the issues, whether of law or fact, in an action.” In the case of The State v. Kendall, 56 Kan. 238, it was said that “ a motion to quash the charge or information is an issue joined between the state and the defendant,” and it was strongly intimated that the personal presence of the defendant at the hearing of a motion to quash the information is indispensable. That this is the law appears to be well settled. 1 Bishop, Crim. Proc. §269. On the hearing of a motion to quash an information, the issues of law relating to the criminality of the acts of the defendant, charged in the information, are tried and determined by the court. If the motion is sustained the prosecution terminates, unless the information be amended. The decision on such a motion is not merely a determination of a matter preliminary to the trial, but is a part of the trial itself within the meaning of this section of the statute, and disposes of the issues of law arising on the information. When the trial commences so that the defendant is placed in jeopardy, within the meaning of the Constitution, and may not be tried again, is quite a different question. The record affirmatively shows that the defendant was not present, but was in the county jail when this hearing was had. In this he was denied his right to be personally present and witness all that took place at his trial.
For this error the judgment must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant, Donald L. Dargatz, was convicted of incitement to riot (K.S.A. 21-4105) and murder in the second degree (K.S.A. 21-3402). The facts in the case were virtually undisputed and are as follows: Around 6:00 or 7:00 p.m. on the evening of November 17,1978, defendant Dargatz, a white male in his mid thirties, was driving his white van in the vicinity of Jardine Junior High School in Wichita. Dargatz was accompanied by his wife, Carolyn, and his fourteen-year-old stepson, Danny Nicholson. As the van approached a group of black juveniles, one member of the group, fourteen-year-old Bruce Epps, threw a stick which struck the side of the van. Defendant turned the van around, drove over the curb, and proceeded to chase the boys with the van across the baseball field adjacent to the school. Several of the boys testified that the defendant drove the van at a speed of 30 miles per hour, almost striking Bruce Epps and missing him by only a few inches. The boys were able to escape by crossing a foot bridge covering a creek on the opposite side of the baseball field. The van stopped by the bridge. Carolyn Dargatz and Danny Nicholson got out of the van and exchanged obscenities with the boys across the creek. Then they got back in the van and returned to their home. En route, the defendant stated that he was going to get his gun and go back and scare the boys who had thrown the stick.
After arriving at home, the defendant went upstairs and got his .22-caliber automatic rifle, banana clip, and ammunition from his bedroom. He brought the rifle, clip, and ammunition downstairs and left them by the fireplace while he went to the basement to shower. After showering, he proceeded to put the loaded gun in the van between the mattress and backboard. Danny Nicholson, not to be outdone, placed a baseball bat and a butcher knife in the van. They were thus prepared for their second encounter with the group of black boys.
The three then proceeded in the van back to the Jardine Junior High School area. The black youths were still there, sitting and talking on the foot bridge. The defendant pointed the gun out the window and fired it into the air for the avowed purpose of scaring the black youths. The boys ran off. Following the second encounter, the defendant, with his wife, and Danny Nicholson, drove from the scene and proceeded to the house of Charles and Loretta Rumsey in an effort to locate a juvenile friend of Danny’s, Roderick “Bo” Smith. Bo Smith was not at the Rumsey house. Danny invited the Rumseys and three juveniles who were in the Rumsey house to join them to “kick some nigger asses”. The group, including the Rumseys, responded, “Sure,” and jumped into the van. At this point, the van contained eight persons. The van proceeded toward Oaklawn with the occupants still looking for Bo Smith. Dargatz informed the group that he had a gun and had previously fired it. The van drove around and eventually encountered Bo Smith walking on the sidewalk with two young men and three young girls. Danny jumped out of the van and asked the group if they wantéd to fight some “niggers.” This new group of six white juveniles climbed into the van, making a total of fourteen people in the van. The van was extremely noisy with almost everyone yelling, “Let’s get some niggers.” Defendant drove the van back to Jardine Junior High School for the third encounter which resulted in the tragic death involved in this case. During the trip, the defendant stated that it was his intention “to teach them not to throw anything at his stuff anymore.” At the trial five of the young people in the van testified, in substance, that the defendant said to them, “Let’s go fight some niggers.”
When the van reached the Jardine Junior High School for the third time, defendant drove up over the curb and stopped the van. He said, “There they are.” The defendant opened the van door on the driver’s side and got out of the van. There was testimony that, at that point, defendant said, “Get the gun.” The testimony differed as to who opened the side doors so that the passengers could exit the vehicle. It appears that everyone except Carolyn Dargatz got out of the van. One of the juveniles tried to hide the gun, but Bo Smith grabbed the gun and went outside. It was Bo Smith who fired the fatal bullet, killing a young black boy, Everett Ross, Jr., who had entered onto the foot bridge unaware of the previous confrontation. He was wearing a yellow jacket and riding his bicycle. Bo Smith testified that, with gun in hand, he looked in the direction of the bridge and saw some white T-shirts and what appeared to be a yellow jacket. He was excited because they were going to fight. He aimed at the bridge and fired one shot. Immediately thereafter, Bo Smith said, “I got that nigger.”
As the young black juveniles were fleeing across the bridge, fourteen-year-old Everett Ross, Jr., was approaching the bridge at the same time. He had not been a part of the earlier group and had not participated in either the exchange of obscenities or the stick throwing. The other boys yelled at him to run, but his bicycle apparently became entangled in the fence. He finally freed his bike and started to run, but was struck in the back of the head by the bullet fired by Bo Smith. Although taken to the hospital, Everett died from the bullet in his head, the only shot fired. After Bo Smith fired the shot, either Danny Nicholson or the defendant grabbed the gun from him and placed it back inside the van. One of the witnesses testified he saw Dargatz reload the gun before placing it back inside the van. Following the shooting, the defendant and Danny Nicholson and another white boy ran up to the bridge but were unable to see anyone. After he had been shot, Everett Ross fell from the bridge and into the grass. After defendant and the boys left the area, the black youths returned to the bridge, picked up Everett Ross, carried and placed him on the hood of an automobile. He was taken to the hospital, but he could not be saved.
Defendant and his group ran back to the van where Dargatz said, “Let’s get out of here.” They drove back to the Rumsey house where they dropped off most of the passengers. Apparently, Dargatz again attempted to return to the area of the junior high school, but did not do so because the sound of sirens could be heard. The van returned to the Rumsey home where the Rumseys and the remaining three juveniles got out. The Dargatz family then proceeded home. Defendant Dargatz was subsequently arrested and charged with felony murder (K.S.A. 21-3401) and incitement to riot (K.S.A. 21-4105). Bo Smith, who fired the fatal shot, pleaded guilty to involuntary manslaughter (K.S.A. 21-3404). Danny Nicholson pleaded guilty to incitement to riot. Dargatz was tried by a jury which returned its verdict finding defendant guilty of incitement to riot, not guilty of first-degree murder, but guilty of second-degree murder. Following his conviction, defendant Dargatz appealed to this court. We will consider each point raised on the appeal but not necessarily in the order in which the points are raised.
The defendant contends that K.S.A. 21-4105 (incitement to riot) is unconstitutionally vague, thus violating due process requirements. The defendant argues in substance that the language in 21-4105 is so vague that an ordinary person would have to guess as to the meaning of the term “urging” as used in the statute. This, he maintains, violates his First Amendment right to free speech. K.S.A. 21-4105 provides as follows:
“21-4105. Incitement to riot. Incitement to riot is by words or conduct urging others to engage in riot as defined by section 21-4104 under circumstances which produce a clear and present danger of injury to persons or property or a breach of the public peace.
“Incitement to riot is a class D felony.” (Emphasis supplied.)
K.S.A. 21-4104, which defines the offense of riot, provides as follows:
“21-4104. Riot. Riot is any use of force or violence which produces a breach of the public peace, or any threat to use such force or violence against any person or property if accompanied by power or apparent power of immediate execution, by five (5) or more persons acting together and without authority of law.
“Riot is a class A misdemeanor.”
Riot was a crime which existed at common law. A riot was commonly defined as a “tumultuous disturbance of the peace by several persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner.” 77 C J.S., Riot § 1, p. 421. Generally, the statutory definitions of “riot” are in harmony with and follow the common-law definition.
In Koska v. Kansas City, 123 Kan. 362, 255 Pac. 57 (1927), it is stated that the word “mob” is practically synonymous with “riot”. Under K.S.A. 21-4104, to establish the charge of riot the following elements must be proved: (1) That the defendant used force or violence which resulted in a breach of the public peace; (2) that defendant acted in a group of five or more persons; and (3) that defendant acted without authority of law. In the alternative, the State must prove (1). that defendant threatened to use force or violence to produce a breach of the public peace against any person or property; (2) that such threat was accompanied by power or apparent power of immediate execution; (3) that defendant acted in a group of five or more persons; and (4) that defendant acted without authority of law. See PIK Crim. 63.04. Incitement to riot and riot are separate and distinct offenses. One may incite to riot without participating in the riot or may participate in a riot without having incited it. Commonwealth v. Apriceno, Appellant, 131 Pa. Super. Ct. 158, 198 A. 515 (1938); Com. v. Safis, et al., Appellants, 122 Pa. Super. Ct. 333, 186 A. 177 (1936).
To establish the charge of incitement to riot under K.S.A. 21-4105, the State must prove that the defendant as a member of a group of five or more persons by words or conduct urged others to engage in a riot under circumstances which produced a clear and present danger of injury to persons or property or a breach of the public peace. See PIK Crim. 63.05. The Kansas statutory crime of incitement to riot has essentially the same elements as the common-law crime. As noted above, the defendant contends that K.S.A. 21-4105 violates due process and is unconstitutional, because the word “urging” as used in the statute is vague and uncertain when viewed in the context of the statute. The guidelines for determining the constitutionality of a statute challenged as void for vagueness were summarized in our recent decision in State v. Norris, 226 Kan. 90, 595 P.2d 1110 (1979). There we stated:
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys such warnings it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. The underlying principle supporting this test is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be prohibited. State v. Stauffer Communications, Inc., 225 Kan. at 546; State v. Gunzelman, 210 Kan. 481, Syl. ¶ 2, 502 P.2d 705, 58 A.L.R.3d 522 (1972). This test is consistent with that recognized by the United States Supreme Court. See, United States v. Harriss, 347 U.S. 612, 617, 98 L.Ed. 989, 74 S.Ct. 808 (1954).
“When considering the validity of a statute the court starts with a presumption of constitutionality; all doubts must be resolved in favor of validity of the statute, and before it can be stricken a clear showing must be made that the statute violates the constitution. State v. Kirby, 222 Kan. at 3-4.” pp. 91-92.
Criminal statutes making incitement to riot an offense have been attacked as unconstitutionally vague in a number of jurisdictions and have consistently been held to be constitutional. In People v. Davis, 68 Cal. 2d 481, 67 Cal. Rptr. 547, 439 P.2d 651 (1968), the California statute proscribing incitement to riot was challenged as void for vagueness. The statute in question, Penal Code Section 404.6, prohibited one from urging a riot, or from urging others to commit acts of force or violence under circumstances creating a clear, present, and immediate danger. In upholding the constitutionality of the statute, it was held:
“It is equally clear that nothing in the statute as drawn renders it vague or overly broad or constitutes an impermissible limitation on freedom of speech, in viola tion of the First and Fourteenth Amendments to the United States Constitution ....
“Contrary to defendant’s suggestion, the section does not fail to give adequate warning of what constitutes a penal offense when it provides for punishment of every person who ‘urges others’ to commit acts of force or violence or to burn or destroy property. ‘Urge’ is a word of common and ordinary usage, and the point at which the proscribed urging occurs will depend in each instance on the point at which the speaker utters the words or indulges in other conduct urging that the violent or forcible acts or the burning or destruction be done. In Feiner v. New York (1951) 340 U.S. 315, 317 [95 L.Ed. 295, 298, 71 S.Ct. 303], the court after describing the conduct of the accused as ‘urging that they [his Negro listeners] rise up in arms and fight for equal rights,’ (italics added) affirmed a state court conviction of disorderly conduct. The conviction of disorderly conduct in Terminiello v. Chicago (1949) 337 U.S. 1 [93 L.Ed. 1131, 69 S.Ct. 894], cited by defendant, was reversed because the involved city ordinance as construed by the trial court in its instructions to the jury “permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand . . .’ [cites omitted]. To persons of ordinary understanding, the urging
of others to acts of force or violence or to burn or destroy property ... is neither similar nor comparable to speech which merely stirs to anger, invites public dispute, or brings about a condition of unrest.” pp. 484-485.
Accord, Chapman & Pearson v. State, 257 Ark. 415, 516 S.W.2d 598 (1974) (relying on Davis to uphold incitement to riot statute which prohibited the “urging” to riot).
In Lynch v. State, 2 Md. App. 546, 236 A.2d 45 (1967), cert. denied 393 U.S. 915 (1968), a conviction for incitement to riot was upheld against a challenge that it unconstitutionally infringed upon the First Amendment freedom of speech guarantees. Relying on United States Supreme Court cases, it was held that “fighting words” which would tend to create a clear and present danger of breach of peace or civil disorder did not contribute to the free flow of ideas and are therefore not protected by the First Amendment. See, Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L.Ed.2d 430, 89 S.Ct. 1827 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L.Ed. 1031, 62 S.Ct. 766 (1942); Cantwell v. Connecticut, 310 U.S. 296, 84 L.Ed. 1213, 60 S.Ct. 900 (1940). The above-cited authorities are persuasive. The use of the term “urging” in K.S.A. 21-4105 is sufficiently definite to make known the proscribed conduct and is, therefore, constitutionally permissible. There is also no constitutional infraction involved in the prohibition of words or conduct tending to produce an immediate danger of breach of the public peace. The statute does not conflict with the First Amendment guarantees and this claim of error must fail.
Defendant also claims reversible error in the admission, over objection, of photographs of the victim. Defendant claims that these photographs were inflammatory and unnecessary to the State’s case, as there was no dispute as to the identity of the victim or the manner in which he was killed. In State v. Campbell, 210 Kan. 265, 500 P.2d 21 (1972), the issue of gruesome photographs was raised. There it was held:
“Even where the defendant concedes the victim’s death and the cause of death, it is incumbent upon the prosecution to prove as a part of its case in chief all elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death, and the violent nature of the death, and to corroborate the testimony of other witnesses, are relevant and admissible.” p. 276.
For more recent cases see State v. Franklin, 221 Kan. 739, 561 P.2d 860 (1977); State v. Villa & Villa, 221 Kan. 653, 654, 561 P.2d 428 (1977); and State v. Henson, 221 Kan. 635, 646, 562 P.2d 51 (1977). Photographs are erroneously admitted when they are unduly repetitious, gruesome, and without probative value. See, e.g., State v. Gutierrez, 225 Kan. 393, 394, 590 P.2d 1063 (1979); State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975). The photographs of the victim about which defendant complains consisted of two large and one small color photographs showing the face of the victim with a knot on his forehead where the bullet was lodged and the bullet’s point of entry. The photographs in this case were not unduly repetitious or gruesome and were of some probative value. There was no error in the admission of these photographs.
Defendant also objects to the introduction of an enlarged photograph of defendant’s night stand. The photo showed a newspaper folded to show an article ¿bout the shooting incident. Defendant complains that the photograph was irrelevant and introduced solely to inflame the jury. There is nothing in the record to demonstrate the relevancy of this photograph to the State’s case. It is not so highly prejudicial, however, that it substantially impaired defendant’s rights. The admission of this photograph was harmless error under K.S.A. 60-261.
Defendant contends the trial court committed reversible error in allowing the State to elicit, on the cross-examination of defendant’s psychiatric witness, evidence of defendant’s prior criminal record. The circumstances giving rise to the introduction of the prior crimes evidence are as follows: On direct examination by defense counsel, Dr. Wellshear, the psychiatrist who evaluated defendant, was asked whether Dargatz could have formed the intent to incite a riot. In response, Dr. Wellshear stated:
“It is . . . difficult for me to believe that he could . . . put together ... a plan of action of a sort he participated in as the one that organized it and kept it going. It’s not to say that he’s not capable of impulsive things. Certainly historically he’s gotten himself in trouble, I suppose, several times by impulsiveness and lack of judgment. But the only way that I might picture that would be that it perhaps is possible only in the sense that most of the people who were in the van were children or adolescents.” (Emphasis supplied.)
Out of the hearing of the jury, Dr. Wellshear stated that the trouble he was referring to, and which was considered in formulating his opinion of lack of intent, was the prior crimes information which he had received from defendant’s mother. The trial court concluded that defendant’s prior criminal behavior had been brought out during the direct examination, and was within the scope of cross-examination. The court also concluded that the prior crimes evidence was relevant to show intent, or ability to form criminal intent, under K.S.A. 60-455. On cross-examination, Dr. Wellshear stated that he had taken into account defendant’s past criminal record in forming his opinion about defendant’s intent, and that those crimes included the felonies of welfare fraud, giving a worthless check, burglary, and theft. Defendant claims this testimony was prejudicial and erroneously admitted into evidence.
Defendant’s point is well taken that the prior crimes evidence was improperly admitted into evidence under K.S.A. 60-455. That statute precludes the admission of prior crimes evidence tending to show the accused’s propensity for crime, but allows such evidence to be introduced to establish any one of the enumerated elements, if relevant, including intent. While such evidence is generally admissible to show specific intent, there is the additional requirement of similarity of offenses. State v. Wasinger, 220 Kan. 599, 602, 556 P.2d 189 (1976); State v. Faulkner, 220 Kan. 153, 157, 551 P.2d 1247 (1976). In the case at bar, there is clearly no similarity between the offenses of welfare fraud, passing a bad check, burglary or theft, and inciting a riot. The inadmissibility under 60-455 does not, however, render the evidence inadmissible for all purposes, as defendant contends. State v. Mitchell, 220 Kan. 700, 703, 556 P.2d 874 (1976). K.S.A. 60-458 states that when an expert witness has given an opinion without specifying the data upon which the opinion is based, the underlying data is a proper subject of cross-examination. See Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 6, 574 P.2d 136 (1977); State v. Pyle, 216 Kan. 423, 442, 532 P.2d 1309 (1975). Furthermore, once an issue is raised on direct, the “door is open,” and “the cross-examination may go into any phase thereof and may extend to the entire subject matter; it is not restricted to the identical details developed on direct examination or the specific facts testified to in chief.” State v. Shultz, 225 Kan. 135, 137, 587 P.2d 901 (1978); State v. Stephenson, 217 Kan. 169, 172, 535 P.2d 940 (1975); State v. Morris, 208 Kan. 464, 467, 493 P.2d 274 (1972); Frame, Administrator v. Bauman, 202 Kan. 461, 465, 449 P.2d 525 (1969). The trial court did not err in allowing the prosecution to cross-examine Dr. Wellshear relative to defendant’s prior crimes which were referred to in the witness’s direct examination and which were, in part, a basis for the doctor’s opinion as to the defendant’s intent.
Defendant contends the trial court erred in refusing to allow him to assert the defense of diminished mental capacity. Defendant argues that the evidence elicited from Dr. Wellshear that he was of low-normal intelligence and lacked leadership qualities set the foundation for Wellshear’s opinion that defendant lacked the mental capacity to incite a riot. The parties dispute whether or not incitement to riot, K.S.A. 21-4105 is a specific or general intent crime. Authorities in other states hold that an element of the statutory crime of incitement to riot is the specific intent to incite the riot. State v. Beasley, 317 So. 2d 750, 753 (Fla. 1975); Commonwealth v. Egan, 113 Pa. Super. Ct. 375, 381-382, 173 A. 764 (1934) (to be guilty of incitement to riot, it must be proved that the accused spoke with the intent to provoke a riot or with a reckless or willful disregard of the probable outcome); 77 C.J.S., Riot § 2. The rationale was explained in Vernon’s Kansas Crim. C. § 2L4105 (1971):
“Incitement to disorder involves a specific intent that disorder ensue. The speaker, to be an inciter, must have some ‘enthusiasm for the result.’ A notion of accidental incitement seems self-contradictory. Usually one only incites his supporters. He makes his audience part of his plan.” p. 206. (Emphasis supplied.)
Defendant suggests that, because incitement to riot its a spe cific intent crime, this court should, as other jurisdictions have done, adopt the doctrine of diminished mental capacity. The doctrine of diminished or reduced mental capacity has been rejected by most jurisdictions on the rationale that insanity is an “all or nothing” proposition. Other states, although rejecting the doctrine, allow introduction of evidence of a defendant’s abnormal mental condition for the purpose of rebutting the specific intent element of the crime. An excellent discussion of the issue can be found at 22 A.L.R.3d 1228, Mental and Emotional Condition as Diminishing Responsibility for Crime. The doctrine of diminished mental capacity, while never specifically rejected by this court, is inconsistent with the law of this state and we decline to adopt it. In People v. Goedecke, 65 Cal. 2d 850, 56 Cal. Rptr. 625, 423 P.2d 777, 22 A.L.R.3d 1213 (1967), it was acknowledged that the defense of diminished mental capacity “ameliorates” the M’Naughten test for insanity. This court has steadfastly adhered to the M’Naughten test for insanity. State v. Levier, 226 Kan. 461, 465, 601 P.2d 1116 (1979); State v. Sandstrom, 225 Kan. 717, 731, 595 P.2d 324 (1979); State v. Sanders, 225 Kan. 147, 155, 587 P.2d 893 (1978); State v. Smith, 223 Kan. 203, 574 P.2d 548 (1977).
In this case, the evidence of defendant’s diminished mental capacity was admitted by the trial court solely on the issue of the defendant’s specific intent to incite a riot. We find no error in the court’s ruling. Although a mental illness or defect not amounting to legal insanity is not a defense, since, for purposes of the capacity to commit crime, degrees of mental abnormality are not recognized, where the crime charged requires a specific intent, evidence of a mental defect which negates the specific intent is admissible. See, for example, State v. Barbour, 142 Kan. 200, 46 P.2d 841 (1935), where evidence that defendant had received blows on the head was admitted to show defendant was dazed to the extent he did not realize he fired a pistol.
The defendant challenges his conviction of murder in the second degree on the basis that a conviction of second-degree murder is improper where the charge is felony murder and where the jury finds that the defendant is guilty of the underlying felony. Defendant further challenges the propriety of giving an instruction on murder in the second degree. The State, in rebuttal, argues that the second-degree murder conviction was entirely consistent with the evidence and was appropriate under the State’s aiding and abetting theory on which proper instructions were given to the jury. We agree with the State’s position. Although the jury found the defendant guilty of incitement to riot, it may have concluded from the evidence that the act of incitement had ceased at the time Bo Smith fired the fatal shot. The evidence was sufficient to justify a conviction of Bo Smith for second-degree murder under the circumstances of the case. The jury could have concluded from the evidence that, with gun in hand, Bo Smith looked in the direction of the bridge and saw some of the black boys wearing white T-shirts and one wearing what appeared to be a yellow jacket. Taking deliberate aim at the bridge, he took one shot and immediately thereafter said, “I got that nigger.” This evidence was sufficient to establish that the shooting of Everett Ross was committed with malice.
Malice as it relates to murder means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act. State v. Sparks, 217 Kan. 204, 209, 535 P.2d 901 (1975). The existence of malice may be 'inferred from the circumstances attending the assault, such as the use of a deadly weapon, the character of the assault made, or an unprovoked or deliberately committed attack. State v. Donahue, 197 Kan. 317, 416 P.2d 287 (1966). In a prosecution for murder, the term maliciously has been defined as willfully doing a wrongful act without just cause or excuse. See PIK Crim. 56.04, Homicide Definitions. From the factual circumstances, the jury could have concluded that the homicide was committed maliciously by Bo Smith, that is, as a result of the willful doing of a wrongful act without just cause or excuse.
If the jury could have found Smith guilty of murder in the second degree, it could likewise find defendant Dargatz guilty of that same offense as an aider and abettor. All of the occupants of the van were there to help the defendant get revenge for the throwing of a stick at his van. It was the defendant who drove the van to the fatal scene. It was the defendant who placed his rifle in the van. It was the defendant who was the first person out of the van and who stated, “Get the gun.” On this evidence, the jury properly found the defendant guilty of aiding and abetting the crime of murder in the second degree. We should also note that defendant specifically requested an instruction on murder in the second degree. Apparently, defense counsel at the time of the trial, having heard the evidence, concluded that an instruction on murder in the second degree as a lesser offense was required in the case. We find no error either in the giving of the instruction on murder in the second degree or in the verdict of the jury finding the defendant guilty of that offense as an aider and abettor.
Finally, the defendant contends that the trial court committed prejudicial error in precluding defense counsel from cross-examining Bo Smith on his state of mind at the time he fired the fatal weapon, yet permitting the State to present rebuttal testimony to show Smith’s state of mind. The record discloses that Bo Smith, called by the State, took the stand and testified in detail as to the circumstances of the shooting. He stated in substance on cross-examination that he fired the gun “because somebody told him to scare them.” He then testified that he did not hear the defendant Dargatz say anything or do anything on the evening that made him (Smith) fire the gun. He fired the gun because he was excited and somebody said, “Scare them.” After the State had rested and during the presentation of the defense, counsel for the defendant recalled Bo Smith to the stand. Smith was asked about previous troubles with black persons and the prosecuting attorney objected on the ground that such testimony was irrelevant. Smith was questioned outside the presence of the jury, testifying that he had previously been involved in altercations with blacks and once had been shot at by blacks. The court asked defense counsel to tie these previous experiences in with the shooting incident then before the court. Counsel then asked Smith what his purpose had been in firing the gun, and Smith said somebody said to scare them. He was asked who told him to “scare them” and he stated that he did not know. The court then sustained the State’s objection to defense counsel’s question as being irrelevant. As noted above, defense counsel was permitted to obtain from Smith the testimony that nothing the defendant said or did caused Smith to fire the shot. After the defense had rested, the State was permitted to reopen the case and offer the testimony of police detective Richard Vinroe, and assistant district attorney Chuck Millsap. Vinroe stated that, upon initially questioning Smith, Smith stated that he had been caught up in the excitement and had not been thinking clearly when he fired the gun. Millsap testified that upon questioning Smith, Smith told him that he had fired the weapon because he was excited and someone told him to scare them. These statements, taken after Smith was apprehended, were essentially identical with Smith’s testimony presented before the jury and in no way added to that testimony.
We have concluded that, although the trial court was unduly restrictive in the defense’s cross-examination of Bo Smith, we cannot see how the exclusion of the testimony could have prejudiced defendant. The virtually undisputed evidence was that it was defendant Dargatz who set up the confrontation, provided the fatal weapon, and instructed the occupants of the van to get the gun at the scene. We, likewise, find that permitting the State to present the rebuttal testimony complained of could not have affected the outcome of the case. The evidence clearly established that there was ill will and hatred between the white people and the black youths at the time the shooting occurred. Bo Smith’s ill will toward blacks was undisputed under the evidence. Under all the circumstances, any undue. restriction on defense counsel’s cross-examination in regard to Bo Smith’s mental state and the introduction of rebuttal testimony by the State (which was in complete accord with Bo Smith’s testimony on the witness stand) could not have affected the outcome of the case and hence does not constitute reversible error.
For the reasons set forth above, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
We have carefully reviewed the record and the issue raised in this case, and we conclude the decisions of the trial court and the Court of Appeals are legally and factually correct.
We adopt the opinion of the Court of Appeals, Kansas Power & Light Co. v. Floersch, 4 Kan. App. 2d 440, 608 P.2d 1023 (1980).
The judgments of the Jackson district court and the Court of Appeals are affirmed.
Miller and Holmes, JJ., dissenting. | [
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The opinion of the court was delivered by
Miller, J.:
Dalton M. Holt was convicted of felony murder, K.S.A. 21-3401, and attempted aggravated robbery, K.S.A. 21-3301 and 21-3427, upon jury trial in Montgomery district court. Consecutive sentences of life imprisonment and not less than two nor more than ten years were imposed. Holt appeals, raising numerous issues which we will detail later in this opinion.
The facts giving rise to this case took place in the early morning hours of June 25, 1978, in the lobby of the Russell Motel at Coffeyville. The manager, James Lee Ware, was shot in the neck during the course of an attempted robbery. Mr. Ware died on July 10, 1978, from complications caused by the gunshot wounds. Before he died, Mr. Ware identified James Lloyd and Ricky Lloyd as his assailants.
The Lloyd brothers were arrested and charged with the offense. Through the investigative efforts of the mother of the Lloyds and their attorney, Roger Gossard, new evidence was uncovered. Charges against the Lloyd brothers were dropped and Dalton Holt, Joseph Fulcher, and Clyde Allen Smith were charged.
Holt was tried separately. The evidence linking him with the fatal occurrence is that Holt, Fulcher and Smith got together on the evening of June 24 and planned to rob a number of businesses in Coffeyville with a “Saturday night special” revolver belonging to Holt. Early the following morning, Holt and Smith entered the motel. Smith was armed with Holt’s revolver. Fulcher remained outside as a lookout. Holt and Smith intended to rob the manager, Ware. When Ware bent over behind the counter, Smith feared that he was reaching for a gun; Smith panicked and shot him in the neck. Smith and Holt then fled from the scene.
Defendant first contends that the trial court erred in refusing to stay the proceedings until defendant had an opportunity to investigate and gather evidence in support of his challenge to the legality and constitutionality of the jury selection process in Montgomery County. In short, he contends that the trial court abused its discretion in failing to grant a continuance.
Originally, Holt and Fulcher were codefendants, and a joint trial was scheduled for January 17, 1979. Fulcher had filed a timely motion challenging the array, K.S.A. 22-3407. On the morning of trial Fulcher was successful in obtaining a severance. Holt then adopted Fulcher’s motion challenging the jury panel. Holt also filed a motion to strike the panel and a memorandum in support of his motion. He moved for a stay to enable him to develop evidence of discrimination.
K.S.A. 22-3407 provides:
“(1) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel. The motion shall be made at least five days prior to the date set for trial if the names and addresses of the panel members and the grounds for objection thereto are known to the parties or can be learned by an inspection of the records of the clerk of the district court at that time; in other cases the motion must be made prior to the time when the jury is sworn to try the case. For good cause shown, the court may entertain the motion at any time thereafter.
“(2) The motion shall be in writing and shall state facts which, if true, show that the jury panel was improperly selected or drawn.
“(3) If the motion states facts which, if true, show that the jury panel has been improperly selected or drawn, it shall be the duty of the court to conduct a hearing. The burden of proof shall be on the movant.
“(4) If the court finds that the jury panel was improperly selected or drawn, the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law.”
The State objected to defendant’s motion challenging the array because it was not filed at least five days prior to trial. The trial court overruled the State’s objection, heard argument, and denied both defendant’s request for a stay and his motion to strike the panel.
We have not previously ruled upon the sufficiency of a motion under K.S.A. 22-3407. Our cases involving a challenge to the array have come before us after an evidentiary hearing. For example, see State v. Sandstrom, 225 Kan. 717, 730, 595 P.2d 324, cert. denied November 5, 1979; State v. Campbell, 217 Kan. 756, 539 P.2d 329, cert. denied, 423 U.S. 1017 (1975); State v. Woods, 191 Kan. 433, 381 P.2d 533 (1963), cert. denied, 376 U.S. 919 (1964).
In determining whether the trial court abused its discretion in failing to stay the trial and grant a continuance, we are called upon to determine the sufficiency of the motion to strike the panel. United States Supreme Court cases display some liberality in requiring a hearing on questions of alleged discrimination in the jury selection process. See, for example, Coleman v. Alabama, 377 U.S. 129, 12 L.Ed.2d 190, 84 S.Ct. 1152 (1964); Test v. United States, 420 U.S. 28, 42 L.Ed.2d 786, 95 S.Ct. 749 (1975); and Duren v. Missouri, 439 U.S. 357, 58 L.Ed.2d 579, 99 S.Ct. 664 (1979). In Duren the court prescribes the elements needed for a prima facie showing of discrimination, saying:
“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” 439 U.S. at 364.
The Fulcher motion alleged only that the population of Coffeyville was 10% black and that there were no blacks on the array. The motion filed by Holt “relies on the facts enunciated” in the Fulcher motion and, in addition, alleged in effect that the jury selection process utilized was discriminatory.
Panels of jurors to serve in district courts are drawn from the entire county, not from a specific city. See K.S.A. 43-155 et seq. Only about one-third of the population of Montgomery County is included in Coffeyville; thus the statistics on that city alone would not give an accurate picture of the base from which jurors were drawn. One black juror was drawn on the panel for trial of the Holt case. Nothing in the record before us indicates what percentage of black jurors has been drawn in Montgomery County in the past.
Our statute requires that the motion “state facts which, if true, show that the jury panel was improperly selected or drawn.” This imposes a duty upon the moving party to go beyond a bald claim of discrimination, and to state some basis for the claim. The Supreme Court of Florida reviewed rulings of a trial court on motions targeted at the Florida grand jury selection process in Rojas v. State, 288 So. 2d 234 (Fla. 1973), cert. denied, 419 U.S. 851 (1974). That court said:
“None of the motions involved in either portion of the grand jury challenge was supported by affidavits, and, other than the conclusory statements contained in the motion itself, there was no showing of any facts sufficient to raise any suspicion that the grand jury pool was improperly constituted. The motions for production of the grand jury master list and for an evidentiary hearing were denied by the trial court, as were the motions seeking dismissal of the information and the underlying indictment.
“. . . As stated in 47 Am. Jur. 2d, Jury, § 182, one objecting to the composition of a jury panel must allege such discrimination as is here asserted by asserting facts to show the existence of the discrimination. Additional support may be found in United States v. Hoffa, 349 F.2d 20 (C.A. 6, 1965), and in Windom v. United States, 260 F.2d 384 (C.A. 10, 1958), both of which stand for the proposition that before a court will be required to permit a full-scale investigation of its jury panel, the panel must be shown to be suspect. This does not, of course, require that the challenge show that the panel is improperly constituted; but what it does require is that the challenger assert facts that tend to raise a doubt as to whether the panel may be improperly constituted. Then follows the inquiry to see if such suspicion, duly alleged, is supported by proof.
. . In the instant case, we have neither a showing that the panel was suspect nor an affidavit showing any factual basis upon which such a suspicion could properly rest; we have only the bare conclusory allegations of the motion itself. This is insufficient.” 288 So. 2d at 236-237.
Chief Judge Murrah, in Windom v. United States, 260 F.2d 384 (10th Cir. 1958), said:
“[T]he burden of making a showing that some class was improperly excluded from the jury lies with the defense. Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187. . . . Surely, some showing of a disposition to discriminate is prerequisite to a searching investigation. The court should not be required to permit a full scale investigation of its jury panel until it is suspect.” 260 F.2d at 385.
The holdings of the Florida and Tenth Circuit courts echo the requirements of our statute. Facts indicating “that the jury panel was improperly selected or drawn” must be included in a motion challenging the venire before a hearing is required. The mere facts that one area of a county has a certain percentage of minorities in its population, and that one black person and three persons with Spanish surnames are drawn on a panel, do not indicate any irregularity or make that panel suspect. Here no attempt was made to gather and present demographic statistics of distinctive population groups in the area from which the panel was drawn, and the composition of past panels was not mentioned. These facts could have and should have been developed prior to the date set for trial. Upon the meager facts presented, the panel was not suspect, and the trial court was correct in denying both the motion to discharge the jury panel and the motion for a stay.
Defendant next contends that the court erred in allowing the State to introduce evidence that sometime prior to the shooting of Mr. Ware the defendant pulled a gun on Glen Chambers. It was the State’s theory that Holt, using Chambers’ identification papers, purchased the murder weapon. Chambers formerly lived with Debbie Scott; he left his driver’s license with her when he was sent to prison. Holt then moved in with Debbie. About that time someone using Chambers’ driver’s license purchased the alleged murder weapon, a silver .22 caliber revolver with brown grips. Chambers testified that he did not purchase the gun; that he had seen a similarly described revolver in Holt’s possession when Holt pulled it on him; and that when he (Chambers) returned from prison, he was unable to obtain his belongings, including his driver’s license, from Debbie.
This evidence was not offered under K.S.A. 60-455 to prove motive or any of the other factors listed in that statute, nor was it introduced in rebuttal to evidence of defendant’s good character. It was offered to show that defendant had the alleged murder weapon in his possession prior to the killing with which he was charged. As such it was relevant for a purpose independent of K.S.A. 60-455, and thus the criteria of that statute are inapplicable and no § 455 limiting instruction is required. State v. Martin, 208 Kan. 950, 495 P.2d 89 (1972). “Evidence which is otherwise relevant in a criminal action is not rendered inadmissible because it may disclose another or independent offense.” State v. Solem, 220 Kan. 471, Syl. ¶[ 3, 552 P.2d 951 (1976).
Defendant contends there was error in the receipt of certain testimony of a State witness, Roger Gossard. No purpose would be served by detailing the lengthy testimony here. We have carefully examined the trial transcript and find that the subject matter of which defendant now complains was first injected into the record by defendant’s cross-examination of another witness, Curtis Harris. Having opened the door, defendant cannot now complain. Further, the testimony was not prejudicial, and were it error, it would not amount to reversible error.
Clyde Allen Smith, the juvenile who participated with defendant in the offense, was called as a State witness. He denied knowledge of the critical events of the offense, denied participation, but admitted that he knew both Holt and Fulcher. The State then impeached Smith with a statement Smith had previously made to detectives admitting his involvement with Holt in the crime. The prior statement was admitted into evidence; defendant cites this as error.
The statement was admissible under K.S.A. 60-460(a). Smith was present at the trial; he was available for cross-examination; and “the statement would be admissible if made by declarant [Smith] while testifying as a witness.” Defendant does not contend that Smith was únavailable for cross-examination, and the record indicates that defense counsel was able through cross-examination to create doubt as to the prior statement’s reliability. This case is not within the rule of State v. Lomax & Williams, 227
Kan. 651, 608 P.2d 959 (1980), where the witness, though present, was not available for cross-examination.
In State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977), we said:
“Prior hearsay statements of a ‘turncoat witness’ are admissible as substantive evidence under K.S.A. 60-460(a).” Syl. f 2.
“Admission of a declarant’s out-of-court statement does not violate the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section Ten of the Bill of Rights of the Kansas Constitution as long as the declarant has been called and testifies as a witness and is subject to full and effective cross-examination.” Syl. ¶ 4.
Under that rationale, Smith’s prior statement was admissible here.
Defendant asserts that the admission of Smith’s statement was an abuse of discretion. Relying upon United States v. Morlang, 531 F.2d 183 (4th Cir. 1975), the State’s calling of Smith as a witness is viewed as “a subterfuge to get before the jury the otherwise inadmissible statements of Clyde Allen Smith,” since the State knew in advance that Smith, a juvenile, would not testify along the lines of his prior statements. This court has previously rejected application of the Morlang rationale in a situation also involving prior inconsistent statements of children. State v. Farley, 225 Kan. 127, 587 P.2d 337 (1978). As in this case, the statements in Farley were taken by law enforcement officials interviewing children who did not have the benefit of the presence of parents or counsel. However, this appeal presents a weaker case for abuse of discretion or subterfuge. In Farley the children made statements regarding- the circumstances of their father having shot a man who was threatening them. The children’s statements were the only evidence that the shooting had not been accidental or in self-defense. Here, Smith’s statements were against his own interest, and had been the subject of a voluntariness hearing and the basis of a delinquency adjudication. In addition, Smith’s version of the crime was corroborated by the testimony of Harris and Fulcher. The statement’s probable reliability and probative value outweigh considerations indicating an abuse of discretion. We find no error.
Did the court err in admitting Exhibit No. 18, a .22 caliber revolver, into evidence? The State contends that this was the murder weapon, though evidence of that fact is circumstantial. Defendant was identified as the purchaser of that gun. He was seen with it, or a very similar weapon, in his possession prior to the homicide. After the homicide, defendant traded it for a rifle; the gun identified as Exhibit No. 18 was recovered from the person to whom defendant traded it. The poor quality of the gun made positive identification of the fatal bullet as having been fired from this weapon impossible, but an expert was of the opinion that the bullet could have been fired from this gun. Finally, the description of the actual murder weapon given by Clyde Allen Smith is uniquely similar to that of the gun received in evidence.
Under our Rules of Evidence all relevant evidence is admissible. K.S.A. 60-407(j). The evidence established a reasonable inference that the gun received in evidence was in fact the murder weapon. Frequently it is impossible to prove that a particular weapon, be it gun, knife, club, or other object, delivered the fatal shot or blow; but where the evidence links the defendant with the weapon, where the weapon could have caused the wound sustained, and where its use is shown to be reasonable or probable, the receipt of the object in evidence is proper. The trial court did not err in receiving the exhibit.
Defendant contends that the court should have given a cautionary instruction. We have examined the proposed instruction submitted by counsel and find it to be argumentative. The matter of evidence was covered by appropriate instructions, and the trial court did not err in refusing to give the proffered instruction directed at Exhibit 18.
Next, defendant claims that he was prejudiced by the judge’s comments about the credibility of one of the State’s witnesses. Joseph Fulcher testified that on Sunday afternoon, the day following the robbery, Clyde Allen Smith, Dalton Holt and the witness were together in the defendant’s apartment. Fulcher testified, without objection, as to statements then made by the defendant about the robbery and shooting. The witness was then asked: “What, if anything, did Clyde Allen Smith tell you about the robbery?” Objection was made that the evidence was hearsay. In ruling, the judge said: “Well, the truth establishes that Dalton Holt was present at the time the statements were made.”
At the time of this ruling the only evidence was that Holt was present when this conversation took place. No specific evidence was ever offered to show that he was not present at that time. The out-of-court statement of Smith would have been admissible if made by Smith while testifying as a witness; Smith was present, testified, and was available for cross-examination. The evidence was thus admissible under the first exception in our hearsay statute. See K.S.A. 60-460(a).
The statement of the trial judge that “the truth establishes that Dalton Holt was present . . .” was error if it is viewed either as a comment on the credibility of the witness or as a comment on the evidence. No objection was made at the time. The defendant’s presence at the place of the conversation on the day following the shoeing is not one of the critical issues in the case; it does not establish his presence at the time and place of the offense on the prior day. K.S.A. 60-261 provides that:
“No error in . : . any ruling . . . or in anything done ... by the court ... is ground for . . . vacating, modifying or otherwise disturbing a judgment . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court . . . must disregard any error . . . which does not affect the substantial rights of the parties.”
The trial court’s inadvertent comment does not affect defendant’s substantial rights. It relates to a matter tangential and not essential. We find it harmless error.
Defendant claims error in failure of the trial court to instruct on lesser degrees of homicide. The State’s evidence indicated that the fatal shot was fired during an attempted robbery; the defense was alibi. Either Holt was guilty of felony murder or he was not guilty; there was no evidence to support lesser degree instructions, and the trial court did not err in failing to give them.
We have carefully reviewed other points raised by the defendant but not specifically mentioned in this opinion and find them to be without merit.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding John Costa, Jr., (defendant-appellant) guilty of felony murder (K.S.A. 21-3401), attempted kidnapping (K.S.A. 21-3301; K.S.A. 21-3420), and attempted rape (K.S.A. 21-3301, K.S.A. 1979 Supp. 21-3502). The appellant asserts six issues on appeal.
Marilyn Butcher, a young girl from Abilene, Kansas, left work at Zale’s Jewelers in the Mid-State Mall in Salina between 6:30 and 6:45 p.m. on the evening of Saturday, January 6, 1979, apparently heading for home.
At 7:00 p.m., William Stoddard, a truck driver with a regular Kansas City to Liberal route, drove his Navajo truck into the south rest area on 1-70 near Solomon, Kansas. As Stoddard drove into the area he observed a blue car, similar to a car later identified as Marilyn Butcher’s car, parked in the area for automobiles; he observed a truck in the truck lane. Stoddard parked his truck, exited and stretched his legs, and went into the restroom. When Stoddard returned from the restroom he noticed a second tractor-trailer had pulled in. As Stoddard crossed the median heading back to his truck he saw a man who was walking toward the restroom; they chit-chatted awhile. Stoddard identified the appellant as the man he spoke with that night in the rest area. Stoddard observed no one else in the rest area; he worked on his log book and left the area about 7:15 p.m.
Around 8:00 p.m., James Joyner, and his co-driver, Bobby Joe Kemp, pulled their tractor-trailer into the south Solomon rest area. Joyner observed a tractor-trailer rig parked in the truck lane and a blue car parked near the restroom. Joyner pulled his truck in directly behind the other truck. Joyner testified he saw some movement; something like an arm or a leg, tan in color. It appeared to Joyner that someone was getting in or out of the cab of the truck. The truck started to move just as Joyner stopped his truck. Joyner observed the truck rock back and forth, and from side-to-side. He saw a body on the ground and realized the front tandem wheels of the trailer had just run over the body. Joyner screamed, and Kemp, who had started to get out of their truck, turned and looked. Both men saw the back tandem wheels of the trailer pass directly over the body. The two men got a good look at the rear of the trailer pulling out and later gave the highway patrol a description of the trailer. Joyner ran over to the body, then went back to his truck and used the CB radio to call the departing truck driver. Joyner told the departing truck driver that he had run over the co-driver. An answer came back, “Oh, no, man I couldn’t have. He’s back here in the sleeper.” Joyner responded, saying, “No, he’s not. He’s back here laying here on the ground.” The departing driver then said, “Well, I’ll go up to the 76 [truck stop] up here and turn around and come back.” The truck and driver did not return. Joyner and Kemp later identified the appellant’s truck as the one they saw at the rest area.
The Kansas Highway Patrol was called and Trooper Ricky Lee Affholder soon arrived at the rest area. After obtaining a description of the truck, Trooper Affholder conveyed the description to the Kansas Highway Patrol dispatcher. A message was sent to area troopers to stop the truck. This message was received by Troopers William Kelley, Jerry Downie, and William McShane of the Kansas Highway Patrol, near Junction City, Kansas, at 8:20 p.m. At 8:36 p.m. Troopers McShane and Kelley stopped a tractor-trailer fitting the description, near Junction City. The appellant was driving the truck. The appellant exited his truck and was asked if he had been at the Solomon rest area. The appellant replied that he had been at the Solomon rest area about 30 minutes earlier. Trooper Kelley advised the appellant that his truck met the description of the one which was involved in an accident, and that he would have to wait until the troopers received further word on it. A few minutes later the troopers were advised by radio that the death might be a homicide, because the hands of the decedent were apparently tied behind her back. The appellant was then frisked, given the Miranda warnings, and was again asked if he had been at the Solomon rest area. The appellant again replied that he had been at the rest area about 30 minutes before he was stopped. Later that night the appellant was taken to the Geary County jail in Junction City, Kansas.
Examination of Marilyn Butcher’s body showed that in addition to her hands being tied behind her back, her pants were unzipped, and her shoes and one stocking were gone. Tire marks on her body indicated that dual wheels had passed over her head and down the length of her body. The cause of death was established as being run over by a truck. Her shoes were later found near the exit from the rest area on to the highway. Her purse and one stocking were found in a culvert about five miles east of the rest area; her coat was found almost another mile farther down the road. Laboratory examination disclosed several spots of seminal fluid on the crotch of her slacks, as well as on a sleeping bag found in the sleeper of the appellant’s truck.
Agent William Tucker of the Kansas Bureau of Investigation testified that the tire impressions left in the ice at the rest area, and the tire marks left on Marilyn Butcher’s body, were caused by tires which were exactly the same or similar to those found on the appellant’s truck. Human blood was located on one of the right rear tires of the appellant’s truck.
On the morning of January 8, while being held in custody at the Saline County jail, appellant told the jailer that he would like to talk to Captain Richard Hurley of the Saline County Sheriff’s office. Captain Hurley took the appellant to his office where he had been talking to KBI agent Lanny Grosland. Grosland advised the appellant of his Miranda rights, and had the appellant read and sign a waiver of those rights.
The appellant told Hurley and Grosland that he had been traveling with three Monfort trucks and had stopped at the Solomon rest area to get a drink; when he found that the faucet was frozen, he worked on his log book about fifteen minutes. While the appellant was there, he saw an unknown car, a Navajo truck, and a small car driven by an elderly gentleman. The appellant told the officers he then left and went to the Union 76 Truck Stop where he joined up with the three Monfort trucks he was traveling with when he was stopped by the Kansas Highway Patrol.
The appellant was charged with attempted rape, attempted kidnapping, and felony murder. He was tried and convicted on all three counts. Appeal has been duly perfected.
The appellant first contends his constitutional rights were violated when he was interrogated by Kansas Highway Patrol troopers at the time he was stopped and before he was given the Miranda warnings. According to the appellant he was subjected to custodial interrogation; the State claims it was investigatory interrogation.
We have defined custodial interrogation as the questioning of a person by law enforcement officers which is initiated and conducted while such person is held in legal custody or is otherwise deprived of his freedom of action in any significant way. State v. Frizzell, 207 Kan. 393, Syl. ¶ 1, 485 P.2d 160 (1971). A person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency. State v. Bohanan, 220 Kan. 121, Syl. ¶ 2, 551 P.2d 828 (1976). Investigatory interrogation is the questioning of a person by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such person is not in legal custody or deprived of his freedom of action in any significant way. State v. Edwards, 224 Kan. 266, 268-69, 579 P.2d 1209 (1978); State v. Bohanan, 220 Kan. at 128; State v. Frizzell, 207 Kan. 393, Syl. ¶ 2.
Circumstances bearing on whether a person questioned was subjected to “custodial interrogation” requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the investigation at the time of interrogation. State v. Edwards, 224 Kan. at 269; State v. Bohanan, 220 Kan. at 128-29; State v. Carson, 216 Kan. 711, 715, 533 P.2d 1342 (1975); Annot., 31 A.L.R.3d 565. The fact a suspect is the focus of an investigation, standing alone, does not trigger the need for a Miranda warning, but it may be one of the determinative factors in arriving at a decision whether such a warning is needed. State v. Edwards, 224 Kan. at 269; State v. Bohanan, 220 Kan. at 129; State v. Carson, 216 Kan. at 715.
Applying these guidelines to the facts of this case, we are satisfied no custodial interrogation occurred when the appellant was initially questioned by the highway patrol troopers.
(1) The nature of the interrogator. Trooper Kelley was the interrogator. Moments earlier Kelley had received information regarding an accident at the Solomon rest area. Kelley was one among several troopers who received the information and conducted the search for the described truck.
(2) The nature of the suspect. Many trucks were stopped that evening in the area-wide search. The appellant was one suspect because his truck fit the description.
(3) The time and place of the interrogation. The troopers received the description of the suspect truck at 8:20 p.m. The appellant was stopped 27 miles from the rest area at 8:36 p.m.
(4) The nature of the interrogation. Kelley asked the appellant logical, general questions in the fact-finding process. From the record it appears the troopers conducted themselves in a busi ness-like, yet friendly manner. There is nothing to suggest a coercive atmosphere surrounded the interrogation. Kelley asked the appellant if he had been at the Solomon rest area. When the appellant said yes, Kelley told the appellant his truck matched the description of one involved in an accident. Kelley then told the appellant he would have to wait until they received further information on the accident. Kelley returned to his patrol car, where Trooper McShane was monitoring the radio. Trooper Downie remained with the appellant and engaged in small talk.
(5) The progress of the investigation at the time of interrogation. When the troopers stopped the appellant’s truck there had been no determination that a crime had been committed. The troopers were investigating a truck-pedestrian fatality. The troopers had no license number for the truck. They had a general description of the trailer — that it was a box-type trailer with the words “Pan American, or something to that effect, written on it.” After Trooper Kelley returned to his patrol car, the nature of the investigation changed. Kelley and McShane received the information that the victim’s hands were tied behind her back. They were instructed to treat the case as a suspected homicide. Immediately upon receiving this information, Trooper McShane left the patrol car, frisked and handcuffed the appellant, and read him the Miranda warnings.
Although the appellant was the “focus” of the investigation by Troopers Kelley, McShane and Downie, there is an absence of evidence to support a finding of custodial interrogation. State v. Brunner, 211 Kan. 596, 599, 507 P.2d 233 (1973). The investigation was in its infancy; approximately twenty minutes had transpired between the time the troopers received the bulletin and stopped the appellant. There was no significant restraint of the appellant during the questioning; he was not under arrest. The facts clearly indicate that when the investigation reached an accusatory stage, the appellant was placed in custody and given the Miranda warnings. Absent proof of a custodial interrogation, the Miranda warnings were not required before the initial general questioning. Hence the appellant’s statement that he had been at the Solomon rest area 30 minutes earlier was admissible.
The appellant contends it was error for the trial court to admit into evidence statements he made to officers in the Saline County jail when the officers knew the appellant was represented by counsel, and counsel was not present.
On January 7,1979, Lee Hornbaker, Junction City, Kansas, was retained to represent the appellant. Hornbaker visited with the appellant and with Captain Hurley at the Geary County jail the same day. Captain Hurley knew Hornbaker was the appellant’s attorney. On January 8, 1979, the appellant was being held at the Saline County jail, and asked to speak with Captain Hurley. The appellant was advised of his constitutional rights, including the right to counsel, and signed a written waiver. The appellant then made a generally exculpatory statement. The statement proved to be damaging in that it corroborated William Stoddard’s testimony. Captain Hurley testified the appellant cried for a few minutes, but was in control of his emotions.
An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence. State v. Johnson, 223 Kan. 237, 243, 573 P.2d 994 (1977); State v. Taylor, 217 Kan. 706, Syl. ¶ 5, 538 P.2d 1375 (1975); see State v. Jones, 220 Kan. 136, 138-39, 551 P.2d 801 (1976).
The appellant does not contend the statement was involuntary, only that it was made without the presence of counsel. The trial court conducted an evidentiary hearing and found the appellant had waived his right to have counsel present. The record discloses substantial competent evidence to support the trial court’s finding. State v. Porter, 223 Kan. 114, 118, 574 P.2d 187 (1977). The trial court did not commit error in admitting the appellant’s statement into evidence at trial.
The appellant contends the trial court committed error in failing to dismiss the complaint, and in permitting late endorsement of witnesses on the complaint and the information.
The original complaint was filed on January 8, 1979; no witnesses were endorsed on the complaint. On January 17, 1979, the appellant filed a motion to dismiss the complaint because it listed no witnesses. The State filed an amended complaint on February 2,1979, listing nineteen witnesses. At the preliminary hearing on February 5, 1979, the court denied the appellant’s motion to dismiss and accepted the State’s amended complaint. On February 16, 1979, the State filed its information listing 75 witnesses.
K.S.A. 1979 Supp. 22-3201(6) governs endorsement of witnesses on the complaint or information. That statute states:
“The prosecuting attorney shall endorse the names of all witnesses known to said attorney upon the complaint, information and indictment at the time of filing the same. Said attorney may endorse thereon names of other witnesses as may afterward become known to said attorney, at such times as the court may by rule or otherwise prescribe.”
This court has repeatedly held that the endorsement of additional witnesses on an information is a matter of judicial discretion and will not be the basis for reversal absent proof of an abuse of discretion. The test of the exercise of that discretion is whether or not the rights of the defendant were unfairly prejudiced by the endorsement. See State v. Prince, 227 Kan. 137, 145, 605 P.2d 563 (1980); State v. Taylor, 217 Kan. 706, Syl. ¶ 6.
The appellant contends the word “shall” in 22-3201(6) is a mandatory requirement that the prosecutor endorse all known witnesses on the original complaint. In support of his argument the appellant recites the inconclusive interpretation of the prior statute, G.S. 1949, 62-802, and the fact the word “shall” in 22-3201(6) is an addition to the previous statutory wording. We do not agree with the appellant in his construction of the statute. In our view the statutory provision is directory rather than mandatory since it simply directs a mode of procedure to secure order, system, and dispatch in criminal proceedings. State v. Turner, 223 Kan. 707, 708, 576 P.2d 644 (1978); Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244 (1973); State v. Brown, 205 Kan. 457, 470 P.2d 815 (1970); see Bell v. City of Topeka, 220 Kan. 405, 553 P.2d 331 (1976).
The purpose of the endorsement requirement is to prevent surprise to the defendant and to give him an opportunity to interview and examine the witnesses for the prosecution in advance of trial. State v. Bryant, 227 Kan. 385, 387, 607 P.2d 66 (1980).
It is not error per se when the prosecutor fails to endorse the names of all known witnesses on the original complaint. However, it bears repeating this court will not condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution’s trial strategy. State v. Bryant, 227 Kan. at 387; State v. Stafford, 213 Kan. 152, 164, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974).
The appellant has made no claim of prejudice or surprise. The appellant was notified of the names of nineteen of the State’s witnesses when the amended complaint was filed on February 2, 1979. The appellant had learned the names of 75 potential State’s witnesses when the information was filed on February 16, 1979, and their names were endorsed on the information. Trial did not commence until May 7, 1979. The appellant did not contend at the time of trial he was unprepared to proceed or needed additional time.
The appellant also contends in relation to 22-3201(6) that the trial court erred in permitting the late endorsement of the additional witness, William Stoddard. On the day of trial, the State requested and the trial court granted leave to endorse Stoddard. Stoddard was a material witness and his testimony helped establish the State’s case that the appellant was at the rest area when the death occurred. Appellant's counsel had located and interviewed Stoddard a few days prior to trial. The State thereafter located and interviewed Stoddard. Although the appellant objected to the late endorsement, he did not request a continuance. See State v. White & Stewart, 225 Kan. 87, 91, 587 P.2d 1259 (1978); State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977); State v. Wilson & Wentworth, 221 Kan. 359, 364, 559 P.2d 374 (1977). Absent proof of prejudice to the appellant’s rights we cannot say the trial court abused the exercise of its power of discretion in permitting the late endorsement of witness Stoddard. The appellant’s counsel knew about Stoddard, interviewed him, and even contemplated calling him as a witness.
The appellant contends the trial court erred in denying a request for a continuance and in determining the appellant was competent to stand trial. The appellant does not allege or present evidence showing he was incompetent to stand trial. Instead, the appellant contends the trial court did not follow the proper procedure before finding the appellant was competent to stand trial.
On April 6, 1979, the appellant’s counsel requested that the court permit the appellant to be examined by a psychiatrist to determine competency to stand trial. Two qualified physicians were selected by the appellant’s counsel to examine the appellant. On May 4, 1979, the appellant’s counsel requested a continuance because the written reports and evaluations had not been received from both physicians.
On May 7,1979, the trial court overruled the appellant’s motion and commenced the trial. The trial court ruled on the motion when no evidence was received to show the appellant was in any way incompetent to stand trial. The written report of a psychologist was presented to the court; the report stated the psychologist believed the appellant was competent, understood the nature of the trial, and could assist in his defense. The appellant’s counsel informed the court of a telephone conversation with the second physician, a psychiatrist, who had not completed his written report, but had concluded the appellant was competent to stand trial. The trial court, having no evidence of appellant’s lack of competence, and having personally observed no bizarre or abnormal activity by the appellant, denied the appellant’s motion.
When the accused’s competency to stand trial is in question pursuant to K.S.A. 1979 Supp. 22-3302, the determination is for the. trial court after conducting á hearing. K.S.A. 1979 Supp. 22-3302(3), using the permissive language “may,” and “or,” offers several options to assist the trial court in making the determination of competency. The trial court may impanel a six-person jury; the court may commit the accused for a psychiatric evaluation, up to 120 days; the court may permit the accused to be evaluated in a mental health clinic or in a jail; or the court may appoint two qualified physicians to examine the accused. The record indicates the trial court, at the appellant’s request, chose the statutory option to have the appellant examined by two physicians.
The appellant contends that once the question of competency is raised, there must be an evidentiary hearing where the accused has the opportunity to present evidence and question the court appointed physicians. The appellant presents no authority supporting the need for a full blown adversary hearing to determine competency. Clearly, the statute does not require such a hearing. The statute and our prior decisions leave the question of the accused’s competency in the discretion of the trial court. Absent an abuse of discretion the trial court’s determination will not be reversed on appeal. See State v. Soles, 224 Kan. 698, 700, 585 P.2d 1032 (1978); State v. Hamrick, 206 Kan. 543, 547, 479 P.2d 854 (1971). The trial court provided a hearing on the question of competency, by giving the appellant’s counsel the opportunity to present evidence of incompetency. No such evidence was presented. On the contrary, the evidence presented, in the form of physicians reports, points only to the appellant’s competency. The trial court in making its own finding of competency remarked that all evidence supported competency. K.S.A. 22-3301. We are satisfied the trial court committed no error in refusing to grant a continuance, and in finding the appellant competent to stand trial.
The appellant contends the trial court committed error in refusing to admit certain evidence. The appellant proffered several photographs and a film as demonstrative evidence of what James Joyner could have seen as he drove his truck into the rest area. The appellant’s proffered film and photographs were taken in April 1979 at the rest area. The film attempts to show Joyner’s view from the cab of his truck and to recreate the scene of the crime so the jury could test Joyner’s credibility and observation abilities. Joyner testified he saw an arm or part of a human body; he saw what appeared to be someone getting in or out of the cab of the appellant’s truck. Joyner testified he saw the wheels of the trailer run over a body.
The trial court viewed the film and photographs and refused to admit them into evidence. The trial court stated there were significant differences in condition between the film and photographs and the actual scene. The film and photographs were taken in April, three months after the January crime. Snow and ice were on the ground in January; the ground was clear in April. The crime occurred in the evening, when the rest area overhead lights were operating. The April photographs and film were taken in the daylight. The film showed several repetitious, but slightly different, views from the driver’s seat of a truck entering the rest area. The trial court stated the film and photographs would be confusing to the jury and would not be of any assistance in determining the issues in the case.
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 trier of fact 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. Howard v. Stoughton, 199 Kan. 787, Syl. ¶ 1, 433 P.2d 567 (1967); see State v. Emery, 201 Kan. 174, 440 P.2d 613 (1968); State v. Woolridge, 2 Kan. App. 2d 449, 581 P.2d 403, rev. denied 225 Kan. 846 (1978); Annot., 19 A.L.R.2d 877. The proffered film was similar to a proffered demonstration or a request to view the scene of a crime. These are matters resting in the sound discretion of the trial court. Exercise of that discretion will not be overturned on appeal unless its abuse is apparent. See State v. Morton, 217 Kan. 642, 538 P.2d 675 (1975). Joyner’s credibility, and the appellant’s theory that the victim was attempting to climb into the truck, could be tested and developed through the examination of witnesses. We are satisfied the trial court did not abuse the exercise of its power of discretion in ruling the film and photographs were confusing, and in finding they represented completely different conditions at the rest area.
The appellant challenges the trial court’s instructions to the jury. He contends that when a case is wholly or substantially dependent on circumstantial evidence and no instruction is given which defines reasonable doubt, an instruction on circumstantial evidence is required. The appellant relies on our decision in State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974).
We adhere to the position that it is not necessary to define the words “reasonable doubt.” It is to be presumed the jury understood what the words “reasonable doubt” meant. The idea intended to be expressed by these words can scarcely be expressed so truly or so clearly by any other words in the English language. State v. Larkin, 209 Kan. 660, 662, 498 P.2d 37 (1972); see State v. Glazer, 223 Kan. 351, 360, 574 P.2d 942 (1978); State v. Taylor, 212 Kan. 780, 785, 512 P.2d 449 (1973); State v. Allen, 5 Kan. App. 2d 31, 609 P.2d 219 (1980). The trial court properly instructed on burden of proof, presumption of innocence, and reasonable doubt using PIK Crim. 52.02. We also adhere to the proposition that a proper instruction on “reasonable doubt” as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further on the probative force of circumstantial evidence is to invite the confusion of semantics. State v. Glazer, 223 Kan. at 360; State v. Wilkins, 215 Kan. at 156; see State v. Peoples, 227 Kan. 127, 135, 605 P.2d 135 (1980).
The appellant contends the trial court erred in refusing to give a requested instruction on inferences and presumptions. In essence, the appellant contends that because of the circumstantial nature of the evidence, the jury could only have arrived at a verdict of guilty by impermissibly basing inference on inference, or presumption on presumption. See State v. Doyle, 201 Kan. 469, 441 P.2d 846 (1968). We have reviewed the instructions on burden of proof, and the evidence in this case, and are satisfied the trial court did not abuse the exercise of its power of discretion in refusing the requested instruction. The evidence, although circumstantial in nature, placed the appellant at the rest area for approximately one hour (from 7:00 to 8:00 p.m.) on January 6, 1979. An eyewitness, Joyner, testified he saw an arm, leg, or body at truck cab level, and then saw the body being run over by the trailer wheels. The victim’s hands were tied behind her back, her slacks were partially unzipped, and traces of seminal fluid were found on her slacks and in the appellant’s sleeping bag.
Finally, the appellant contends the trial court erred in giving the instruction on presumption of intent, PIK Grim. 54.01. This point has no merit. See State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022 (1980); State v. Acheson, 3 Kan. App. 2d 705, 601 P.2d 375 (1979), rev. denied 227 Kan. 927 (1980); PIK Crim. 54.01 (1979 Supp.).
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The opinion of the court was delivered by
Fromme, J.:
This is an action brought by and on behalf of licensed nursing home facilities in the State of Kansas to obtain a declaratory judgment declaring certain regulations of the Kansas Department of Social and Rehabilitation Services invalid. These nursing home facilities rendered care and services under cooperative state-federal institutional care programs. The regulations of the Kansas Department of Social and Rehabilitation Services (formerly the State Board of Social Welfare of Kansas) being attacked are those for the period from July 1, 1971, to February 29, 1980.
This declaratory judgment action is authorized by K.S.A. 77-434 in which it is stated:
“The court shall declare the rule and regulation invalid if it finds that it violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without substantial compliance with statutory rule-making procedures.”
The action was filed on June 6, 1973, attacking regulations passed to implement federal social security programs authorized by K.S.A. 1971 Supp. 39-708(jc) and amendments. The statute, effective July 1, 1971, provided:
“The state board shall take such action as may be necessary to assure that persons, firms and corporations selling property or providing services and licensed practitioners, within the scope of their practice as defined by state law who provide professional services under the provisions of the federal social security act, shall be paid reasonable charges. Payment for other medical assistance under the provisions of the federal social security act shall be reasonable charges: Provided, however, That if such payments are otherwise limited by federal law, such payments shall be as near the reasonable charges as may be permitted by federal law.” Emphasis supplied.
Since the original petition was filed over seven years ago the plaintiffs have filed both an amended petition and an amendment to the amended petition in an effort to keep abreast of changes in the statute and regulations implementing the medicaid program. Changes have occurred annually in both the statute and the regulations. The decision from which this appeal was taken has been delayed and complicated by the further fact that no less than three judges have presided over portions of the proceedings before a fourth judge was assigned to Morris County to complete the case. Before the assignment of the fourth judge, the case had been set for trial twice and continued each time. The present judgment appealed from was entered February 29, 1980. The judgment pertains solely to the first claim set forth in the amended petition. The second claim in the amended petition has not been tried by the lower court. In the second claim plaintiffs seek recovery in a class action for payments alleged to be due by reason of payments claimed to have been withheld in violation of law. The second claim remains for later trial, assuming plaintiffs are successful in this first claim. The sole decision to be reached in this appeal concerns the validity of the regulations of the former State Board of Social Welfare and of its successor, the present Department of Social and Rehabilitation Services of Kansas, covering the period of time from July 1, 1971, to February 29, 1980.
The provisions of K.S.A. 1971 Supp. 39-708(x) and amendments were passed by the legislature to implement certain grants-in-aid available to the states under the provisions of the federal Social Security Act, Public Law 92-603, § 249, 42 U.S.C.A. § 1396a(a)(13)(E). This law requires that a plan be submitted by the state agency and that it be approved by the Secretary of Health, Education and Welfare to conform to the requirements of the Social Security Act. Effective May 4, 1980, the federal Department of Health, Education and Welfare was redesignated the Department of Health and Human Services. Public Law 96-88, § 509(a). For purposes of this opinion we are concerned only with the time the Department and Secretary of Health, Education and Welfare (HEW) remained in existence.
Under these grant-in-aid programs, such as medicaid, payments are made by the designated state agency to nursing home facilities which have provided nursing care and medical services to qualified beneficiaries. The money for the payments comes from both state and federal sources and is to be paid in accordance with an approved plan. The federal Social Security Act requires that plans provide for reimbursement to both skilled nursing facilities and intermediate care facilities “on a reasonable cost related basis,” as determined in accordance with'methods and standards which shall be developed by the state on the basis of “reasonable cost-finding methods” approved and verified by the Secretary of HEW.
The federal Social Security Act consists of several enactments under which the federal government makes funds available to the states for the care of various categories of needy individuals. The section of the federal statute with which we are concerned is Title XIX (Medicaid) (Grants to States for Medical Assistance Programs) for indigent aged persons. 42 U.S.C.A. §§ 1396 et seq.
On appeal the Secretary of Social and Rehabilitation Services of Kansas, appellant herein, attacks the integrity and impartiality of the district judge assigned to hear this complicated and long-delayed case. The Secretary launches a personal attack against the trial judge and his procedural orders. It is alleged the judge acted indecisively in first ordering a change of venue from Morris County to Shawnee County and later rescinding the order. It is suggested the proceedings are “perhaps invalid as a matter of venue and jurisdiction.” It is alleged the judge blatantly and retroactively violated, abused and changed the pretrial order causing obvious and manifest injustice to the appellant. It is alleged the conduct of the judge indicated a friendliness toward the plaintiffs and a preconceived bias toward the defendant-appellant. It is further alleged the judge failed to timely rule on defendant’s motion for summary judgment and failed to consider the full record stipulated by the parties.
According to the transcript of the pretrial hearing and the pretrial order, which the defendant-appellant prepared, the trial court on application for a change of venue granted the change on condition that the files not be transferred from Morris County to Shawnee County until or unless judgment was granted for the plaintiffs on the declaratory judgment aspects of the case. At a later time this order changing venue was revoked.
The pretrial order segregated the declaratory judgment aspect of the case and determined that it should be decided first. The order noted that both parties had motions for summary judgment pending but the court declined to decide them at that time. The court indicated that:
“[T]he issues to be decided in the declaratory judgment aspect is whether the regulations (of the present defendant, the Secretary of Social and Rehabilitation Services of Kansas, for the payment of nursing home facilities for their performed services in the Title XIX Social Security plan in Kansas which plan is administered by the State Department of Social and Rehabilitation Services of Kansas) properly comply with the enabling state and federal statutes and federal regulations for the period beginning on July 1, 1971, and ending' on the date of the declaratory judgment.”
The pretrial order further provided there was no question concerning the procedure by which the regulations were adopted by the department and it was agreed the plaintiffs had exhausted the necessary administrative procedures necessary for a ruling on a declaratory judgment. The court ruled that the members of the class, for the purpose of determining the declaratory judgment phase of the litigation, are all the nursing facilities licensed in Kansas, excepting therefrom those that had opted out. It further ordered, in the event plaintiffs obtain a declaratory judgment holding the regulations invalid, that the members of the class entitled to recover and the extent of their recovery are left completely open for later determination. In the pretrial order the record upon which the declaratory judgment was to be made was determined to be the pertinent Kansas statutes and regulations, the pertinent federal statutes and regulations, the depositions previously taken, the transcript of the pretrial hearing, together with the pleadings, interrogatories, affidavits, and admissions of record. It was further ordered that the affidavit of William Newman, head of the Department of Medical Services, dated March 21,1975, be filed as part of the record and be brought up to date. These affidavits concern the cost reimbursement design and method of payment employed by the department. In the order it was determined that upon the filing of this factual information there would be no need for oral testimony to be taken for the adjudication of the declaratory judgment. The order stated that the procedure for adjudication would be to require the parties to submit to the court their respective proposed findings of fact and conclusions of law with the references to statutes, regulations and the record. The court would study the same and enter the declaratory judgment.
In the transcript of the pretrial hearing the following colloquy occurred among court and counsel:
“THE COURT: So, a ruling on the declaratory phase of this, in effect, decides both motions for summary judgment. Isn’t that right?
“MR. ROBY [counsel for defendant]: Of course, the purpose of the summary judgment would be to avoid the necessity of going through—
“MR. DesJARDINS [co-counsel for defendant]: Trial.
“MR. ROBY: — the presentation and the trial itself. So, if we go to the trial, it’s the same as overruling both motions for summary judgment.
“THE COURT: Sure, sure. What I’m thinking, what do I need to make a determination as to the declaratory judgment part? I need the Kansas statutes involved; I need the SRS regulations as they have varied through the period of years; I need the federal statutes pertinent, Title 19; I need any federal regulations that are pertinent; I need maybe what Dick calls the array. And I don’t like that word, because I don’t know what he means by it, and later he’s going to have to tell me what he means by it so I know what’s needed in that area. But it seems to me that’s all I need to determine the declaratory judgment part.
“MR. DesJARDINS: Looking at it that way, Your Honor, and with what Mr. Liebert has previously said about these individual homes, I think the Court is correct. And I’m not sure the Court would even require any testimony if we can agree as to the statutes, the regulations and the pertinent federal regulations and statutes. I think the Court is correct, since we’re not going into individual homes and using those as keys or by standards. I think it can be presented to the Court that way.
“THE COURT: I don’t think the individual homes has anything to do with this lawsuit at this time.
“MR. DesJARDINS: No. Doing it that way, I don’t even think the Court needs testimony.
“THE COURT: . . . Okay, no question but what this case is a court case rather than jury case, is there?
“MR. DesJARDINS: No question.
“MR. ROBY: So you’ll understand, that accounting is about four or five years out of date.
“MR. LIEBERT [counsel for plaintiff]: That affidavit does relate to the cost reimbursement design that’s in the present regulation, but there have been amendments to details that are not covered in that affidavit. So that the question would be whether we would have the man in person appear and update that or whether we would do it in writing, either way.
“THE COURT: What—
“MR. DesJARDINS: We can do it in writing.”
It is apparent from the transcript of the pretrial hearing and the pretrial order prepared by defendant-appellant that all parties acquiesced in the procedure to be followed in presenting the case for decision of the court. When a pretrial order is agreed on by the parties and followed by the trial court in deciding the issues as set forth in the order, the parties have acquiesced therein and cannot enlarge those issues on appeal. Such an order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. K.S.A. 60-216; Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 442, 581 P.2d 372 (1978). We have examined the record of the case and find the personal attack of the Secretary against the trial judge is unjustified and in poor taste. Obviously the charges of bias, prejudice and manifest injustice come more as a result of the adverse decision than from any improper action on the part of the judge.
The charge that the proceedings are “perhaps invalid as a matter of venue and jurisdiction” is without basis in fact. Under K.S.A. 77-434 venue is with the district court of the county in which the plaintiff resides or has a principal place of business. That is Morris County in this case. The allowance or refusal of an application for a change of venue rests largely in the discretion of the trial court under K.S.A. 60-609. Fredricks v. Foltz, 221 Kan. 28, 33, 557 P.2d 1252 (1976). We fail to see any abuse of discretion by the court or prejudice to appellant by the refusal to change venue.
We turn now to the primary questions raised on appeal. The trial court declared all of the regulations pertaining to reimbursements to nursing homes under Title XIX of the Social Security Act, adopted by the Department of Social and Rehabilitation Services, invalid as being contrary to law for failure to fulfill the statutory requirement of paying reasonable charges. The trial court’s principal bases for its decision were (1) the limitation of prospective payments for long term nursing home care depending on the amount of funds appropriated by the state, (2) refusal of the agency to provide for a reasonable profit for the owner, and (3) refusal of the agency to permit attorney fees and costs expended in this and similar actions to be allowed as costs related to patient care and recovered as reimbursable costs for nursing services.
At the outset we should be mindful of the following rules. A court may not substitute its judgment for that of the Secretary of Social and Rehabilitation Services in determining which method is preferable to determine a reasonable cost-related basis for reimbursing long term care facilities; a court should not intrude into areas of administrative discretion, and it must protect the director’s right to select among effective options. Brinson v. School District, 223 Kan. 465, 469, 576 P.2d 602 (1978); Marks v. Frantz, 179 Kan. 638, 642, 298 P.2d 316 (1956); American Health Care Ass'n, Inc. v. Califano, 443 F. Supp. 612 (D.D.C. 1977). A rebuttable presumption of validity attaches to actions of administrative agencies; the burden of proof rests with the party or parties challenging the action of an administrative agency. Alabama Nursing Home Ass’n v. Harris, 617 F.2d 388 (5th Cir. 1980); Hiatt Grain & Feed, Inc. v. Bergland, 446 F. Supp. 457, 479 (D. Kan. 1978), aff’d 602 F.2d 929 (10th Cir. 1979).
A state is not obligated to participate in the medicaid program; however, once it has voluntarily elected to participate, the state must comply with federal standards. Social Security Act § 1902(a)(13)(E) as amended 42 U.S.C.A. § 1396a(a)(13)(E); Alabama Nursing Home Ass’n v. Harris, 617 F.2d 388. A state plan for medical assistance must provide for payment for skilled nursing facility and intermediate care facility services provided under the plan on a reasonable cost-related basis, as determined in accordance with methods and standards which are developed by the state on the basis of cost-finding methods approved and verified by the Secretary. 42 U.S.C.A. § 1396a(a)(13)(E). Such plan must provide such methods and procedures relating to the utilization of, and the payment for, care and services made available under the plan to assure that payments are not in excess of reasonable charges consistent with efficiency, economy, and quality of care. 42 U.S.C.A. § 1396a(a)(30).
In light of the above federal law we now turn to the state regulations under attack.
In order to examine the validity of the state regulations which cover a period of almost nine years they must be separated into three time periods because of the changes in both the state regulations and the statutes.
The first time period runs from July 1, 1971, to July 28, 1972. The state regulation then in effect was K.A.R. 30-5-27 (1971). It provided:
“The fee for payment for levels of care in adult care homes shall be based upon the home’s cost plus a reasonable profit which fee shall be determined by cost and other data submitted by the home as required by the department so that such fee for skilled nursing home services for patients qualifying for title XIX benefits shall be the reasonable, usual and customary charges for such home as determined by the aboce method.” Emphasis supplied.
In Seneca Nursing Home v. Kansas State Bd. of Social Welf, 490 F.2d 1324 (10th Cir.), cert. denied 419 U.S. 841 (1974), the Tenth Circuit Court of Appeals affirmed the declaratory judgment entered in the trial court, holding that the nursing homes were entitled to payment under K.S.A. 1970 Supp. 39-708(nc) according to the standard of “reasonable, usual and customary charges.” This covered the period of time up to July 1, 1971. Recovery of the differences between what had been actually paid and reasonable, usual and customary charges was authorized.
In our present case K.A.R. 30-5-27 (1971), which remained in effect after July 1, 1971, required payments of the reasonable, usual and customary charges. In the deposition of William Newman there was undisputed testimony that the usual and customary posted charges of the nursing homes were not paid in all cases. He further testified that the amount of the payments to nursing homes was not determined on a reasonable cost-related basis.
In Rhodes v. Harder, 211 Kan. 820, 508 P.2d 959 (1973), a declaratory judgment was sought to determine the validity of certain administrative action taken by the Social Welfare Department. The department by administrative regulation K.A.R. 30-5-29 (1969) attempted to authorize the department to prorate payments for medical services rendered to welfare recipients. A reduction of a flat 25 percent was ordered. This court held such action exceeded statutory authority of the State Director of Social Welfare. The regulation and the administrative action were held to have been taken without any legal authority and in violation of the federal statutes relating to Title XIX programs.
We see no conflict or invalidity by reason of the mere wording of the state and federal statutes and regulations for the period from July 1, 1971, to July 28, 1972, but the state agency during that period failed to comply with the plan entered into with the Department of HEW, which plan incorporates the federal statutory requirements. The department failed to provide a schedule for reimbursements based on some reasonable cost-related method as required by 42 U.S.C.A. § 1396a(a)(13)(E). We conclude the failure of the state agency to implement the federal statutory requirements by administrative action, so as to provide some reasonable cost-related method to determine usual, customary and reasonable rates of nursing home reimbursements, rendered K.A.R. 30-5-27 (1971) and the administrative action taken to be without any legal authority. The nursing homes were entitled to their reasonable, usual and customary charges for such services during this period.
We turn next to the period from July 28, 1972, to May 1, 1978. K.S.A. 1972 Supp. 39-708(x), as interpreted by the attorney general’s opinion and as later amended, directed payment of “reasonable charges.” During this period K.A.R. 30-5-27 (1972), K.A.R. 30-9-12 (1973), and later amendments limited the amount of the charges and payments by making them subject to a limitation of the funds made available under state appropriation statutes. The 1972 regulation K.A.R. 30-5-29, provided that “[s]hould funds for each fiscal year prove inadequate to meet all costs on the basis of fees and charges adopted, payment to the providers will be made on a proration or discount basis.” The 1973 regulation provided that “reasonable charges will also be determined by the amount of funds made available under state law to pay such charges.” The 1974 regulation contained an almost identical provision limiting payments. The 1975, 1976, and 1977 regulations all provided for limitations on reimbursements to nursing home facilities and intermediate care facilities to be determined by the amount of the appropriation made available by the Kansas legislature. See K.A.R. 30-10-12 for those particular years.
Inadequate funding does not excuse failure of a state to comply with federal standards, and there is no provision, express or implied, in the Social Security Act permitting a state to alter federal standards to suit the state’s budgetary needs. Alabama Nursing Home Ass’n v. Califano, 433 F. Supp. 1325, 1330 (M.D. Ala. 1977); Alabama Nursing Home Ass’n v. Harris, 617 F.2d at 396; State of Fla. v. Mathews, 526 F.2d 319, 326 (5th Cir. 1976); Rodriguez v. Vowell, 472 F.2d 622, 624 (5th Cir.), cert. denied 412 U.S. 944 (1973); Reyna v. Vowell, 470 F.2d 494, 496 (5th Cir. 1972).
As has been pointed out a state is not obligated to participate in the medicaid program but when it voluntarily elects to do so the state must comply with federal standards. The Social Security Act requires any state plan to provide payment for these services on a reasonable cost-related basis. This requirement does not enable a state to prorate costs incurred for such services. To permit this would allow the state to circumvent its previous guarantee of reasonable cost-related reimbursements under the medicaid program by failing or refusing to take necessary steps to ensure adequate funding of the program’s projected expenditures. Social Security Act, § 19Q2(a)(13)(E) as amended 42 U.S.C.A. § 1396a(a)(13)(E).
The regulations of the Kansas Department of Social Welfare, now the Department of Social and Rehabilitation Services, for the period of July 28, 1972, to May 1, 1978, relating to charges for adult nursing home services under Title XIX, were invalid as an attempt to alter federal standards set in the Social Security Act to suit the department’s budgetary needs. During this period the nursing homes were entitled to be reimbursed their reasonable charges consistent with efficiency, economy, and quality of care without proration or discount because of the level of state funding.
We will next consider the final period from May 1, 1978, to February 29, 1980. K.S.A. 1978 Supp. 39-708c(x) became effective July 1, 1978, and provided:
“The secretary shall establish payment schedules for each group of health care providers. Any payment schedule established by the secretary shall be based, as appropriate, on either reasonable charges, reasonable costs or prospective rates and shall be subject to the federal social security act and state law and to rules and regulations adopted under said act and such law. The secretary, on an annual basis, shall review any payment schedule established under this section with representatives of the appropriate group of health care providers and with representatives of recipient advocate groups.”
Under the federal regulations adopted in 1976 and later amended, the Department of Health, Education and Welfare required a state medicaid agency to pay for long-term care facility services on a reasonable cost-related basis. 45 C.F.R. § 250.30 (1976). Payment rates could not be set lower than rates the agency could reasonably find were adequate to reimburse in full the actual allowable costs of a facility that was economically and efficiently operated (42 C.F.R. § 447.302[b] [1978]). The agency may not pay more for long-term care facility services than the provider’s customary posted charges. 42 C.F.R. § 447.315(a) (1978).
The Secretary of HEW approved and adopted the following additional rules and regulations on February 1, 1978, as shown in the Federal Register, Vol. 43, No. 25, pp. 4862, 4863:
“1. An individual facility’s reasonable cost related payment rate may (although it need not) be set in a manner that aifords an opportunity for profit. . . .
“2. ‘Reasonable cost related’ payment rates must, at a minimum, be high enough to cover the allowable costs of an efficiently and economically operated facility. .. .
“3. It is appropriate to set a ceiling on ‘reasonable cost related’ payment rates. . . .
“4. States should be allowed greater flexibility to experiment in developing methods of determining reasonable cost related payment rates.”
These regulations further provide for ceilings and floors on reasonable cost-related payment rates as follows:
“The minimum reasonable cost related rate is the rate which the State reasonably finds (or, in the case of a prospectively determined rate, the level which the State reasonably expects) to be adequate to reimburse in full the allowable cost of a provider facility that is economically and efficiently operated. Thus, a provider facility’s payment rate may not be lower than the level the State finds or expects to be adequate to reimburse the costs of that facility (where payment rates are set on a facility-by-facility basis) or of some provider in the class (where payment rates are set on a class basis) if that facility were operated as efficiently and economically as possible.
“The maximum reasonable cost related rate in a prospective rate-setting system is the highest costs the individual provider (where rates are set on a facility-by-facility basis) or the highest cost provider in the class (where rates are set on a class basis) can reasonably be expected to incur, and which would be found reasonable if incurred. The maximum reasonable cost related rate in a retrospective rate-setting system is the amount which would be determined using the Medicare principles of provider reimbursement. In addition, all payment rates, whether set prospectively or retrospectively, are subject to any general payment limits established by the Secretary under sections 1861(v) and 1866 of the Social Security Act, as amended by section 223 of Pub. L. 92-603, and under implementing regulations at 42 CFR 405.460-405.461.” Federal Register at 4862.
The judgment entered by the trial court on February 29, 1980, contains basic findings, relating to the regulations and methods of administering the Title XIX plan for the period ending De cember, 1975. The judgment omits findings with reference to the 1976 and 1977 regulations although they were held to be invalid. The trial court held the regulations, K.A.R. 30-10-12 B 4a (5) for 1978 and 1979 were invalid because: (1) The payments approved therein failed to include an item for a return on the owner’s investment, (2) the regulations approved a ceiling limit on payments for services arrived at by use of percentiles not properly explained or defined, and (3) the regulations do not recognize legal fees and court costs as allowable costs in the payment structure for reimbursement of charges for nursing home services.
The regulations adopted and in effect for the period from May 1, 1978, to February 29, 1980, with reference to reasonable cost-related reimbursements for long-term nursing care cover over twelve pages of the book containing the Kansas Administrative Regulations. K.A.R. 30-10-12 and 30-10-13 (1978). The objectionable features of the prior regulations, which limited the amount of payments to be made to those funds which might be available or appropriated, were removed from the regulations effective May 1, 1978.
The 1978 regulations state:
“1. Facilities with a current written provider agreement will be paid on a reasonable costs related basis for services furnished to eligible beneficiaries.” K.A.R. 30-10-12-A-l (1978).
“(5) Rate(s) for existing facilities — The agency shall, at least annually, on the basis of the cost information supplied by the provider and retained for cost auditing, determine per diem rates. The agency will compare the cost information for each provider with other providers similar in size, scope of service and other relevant factors to determine the allowable cost per diem rate. To the allowable cost per diem rate the agency will add a factor for inflation and may add a factor for profit .... The agency may establish payment rate structures to be limited by percentile máximums based on the cost information supplied by the providers.” K.A.R. 30-10- 12B-4-a (5) (1978). Emphasis supplied.
K.A.R. 30-10-13-B (1978) sets out detailed instructions as to required financial data, cost reports, and record keeping necessary to permit adequate cost data and cost finding, and authorizes:
“4. Depreciation — Allowance for depreciation based on asset costs. An appropriate allowance for depreciation on buildings and equipment is an allowable cost. . . .
“5. Interest expense. Necessary and proper interest on both current and capital indebtedness is an allowable cost.
“21. Lease payments. Lease payments must be reported in accordance with the financial accounting standards board statement No. 13.”
We note at least one federal district court has upheld the Department of HEW’s regulations which authorized a limitation to be placed on opportunities for profit. That court held the provision limiting profit on services to medicaid patients receiving long-term nursing care did not conflict with either statutory language or congressional intent. American Health Care Assn, Inc. v. Califano, 443 F. Supp. 612.
However, a medicaid agency cannot expect these services to be rendered without some profit to the private owner. When half of the patients receiving long-term care are medicaid patients, a nongovernmental facility cannot continue to operate without some return on investment. The use of percentiles arrived at from a schedule or array of posted charges of all nursing homes for similar services furnished private patients would appear to include some amount above the level of bare costs, at least for those nursing homes that are efficiently and economically operated. The 1978 regulations authorized a factor for inflation and for profit. The record before us covering the present period from May 1, 1978, to February 29, 1980, appears to indicate cost-finding methods during such period which included a built-in factor for profit while keeping in mind the federal requirement that the payments be no more than reasonable charges of homes efficiently and economically operated.
Regulations containing provisions almost, if not, identical to those of the 1978 regulations were adopted by the Department of Social and Rehabilitation Services for 1979 and Í980. The state regulations approve the use of percentiles based on posted charges supplied by the providers for the purpose of establishing payment rate structures. Percentiles are arrived at as follows: If there are one hundred nursing homes furnishing a particular service for posted charges to private patients, these charges are arrayed from the highest to the lowest in a list. The charge which is positioned fiftieth from the bottom of the list is at the fiftieth percentile. The posted charge which is positioned seventy-fifth from the bottom of the list or array is referred to as being at the seventy-fifth percentile. The highest charge is at the one-hundredth percentile.
An explanation of the use of percentiles by the State Department of Social and Rehabilitation Services was furnished to the trial court as Plaintiff’s Exhibit No. 9. The schedule or array of nursing facility charges is used by the department to determine reasonable cost-related charges for particular services furnished at a level of the mythical nursing facility that is “economically and efficiently operated,” as required by 42 C.F.R. § 447.302(b) (1978).
Under the federal regulations heretofore quoted it is appropriate to set a ceiling on reasonable cost-related payment rates. We note in Alabama Nursing Home Ass’n v. Harris, 617 F.2d at 394-95, the Fifth Circuit Court of Appeals refused to strike down the use of ceiling rates based on the sixtieth percentile. We cannot say as a matter of law that the use of the seventy-fifth percentile as explained in Plaintiff’s Exhibit No. 9 results in unreasonable rates for reimbursement which are not in accordance with the federal law and regulations. We note in the federal regulations adopted February 1, 1978, it is pointed out that states should be allowed greater flexibility to experiment in developing methods of determining reasonable cost-related rates. Surely rates set at the seventy-fifth percentile of costs posted by all nursing facilities furnishing a particular service in Kansas should be presumed to be set on a reasonable cost-related basis for efficiently and economically run nursing homes. Using that percentile at least seventy-five out of every hundred nursing homes in Kansas would be charging no more for similar services furnished their private patients. Twenty-five would have higher posted charges for their private patients. In arriving at reasonable charges the Director of Medical Services Section explained how the reimbursement rates were being set. Factors were being added for increase in the minimum wage, for efficiency and for inflation. Country Club Home, Inc. was being allowed $24,000.00 per year rent expense, plus amortized leasehold expense and depreciation expense. We cannot say a return on investment was denied.
The final grounds found by the trial judge for holding the regulations invalid stemmed from the fact legal fees and costs of any action against the Secretary were not listed as allowable costs for the purpose of setting rates. We see nothing in the statutes or regulations authorizing attorney fees, such as those in the present case, to be charged as part of the costs of medicaid patients in nursing homes. Traditionally the cost of attorney fees is an obligation of the client and cannot be shifted to the other party in a lawsuit unless such is authorized by statute. See Lines v. City of Topeka, 223 Kan. 772, 577 P.2d 42 (1978), and cases cited therein at page 782. The attorney fees and costs in the present case, in the absence of statute or regulation, should not be considered an authorized charge for nursing services furnished to medicaid patients. It is not required that such items be built into the reimbursed service costs. However, we do not mean to indicate attorney fees and costs can never be used in the cost structure when incurred for the purpose of assisting the nursing homes to obtain reasonable cost-related payments. We have found no prohibition of such in any of the federal regulations. A provision for such would be possible if authorized by state statute or by state regulation. We note that K.A.R. 30-10-12(b)(4)(A)(ii) as amended May 1, 1980, was not in effect during the period with which we are concerned.
A court may not substitute its judgment for that of the Secretary of Social and Rehabilitation Services in determining which method is preferable to determine a reasonable cost-related basis for reimbursing long-term care facilities; a court should not intrude into areas of administrative discretion, and it must protect the director’s right to select among effective options. The statute and regulations for this period are valid.
One final matter should be mentioned. The appellant contends the assigned judge erred in making a class action finding at a variance with the previous rulings of Judge A. B. Fletcher, Jr. on February 25,1974, and at a variance with a later holding by Judge William D. Clement on October 19,1976, after the supplement to the amended petition had been filed setting forth the third claim. The pretrial order limited the trial to questions concerning the validity of the regulations adopted by the Department of Social and Rehabilitation Services of Kansas. As we view the recitation of facts concerning the class action features of the action, the assigned judge did not intend to change any of the previous decisions of Judge Fletcher and Judge Clement. Instead of attempting to change any previous orders entered on the class action features of the case, Judge Woleslagel merely recited the class action facts to limit and define the scope of his decision on the declaratory judgment feature of the case.
It becomes apparent from our decision that only the regulations from July 1,1971, to May 1, 1978, were invalid, not those adopted subsequent thereto. The trial court before proceeding with the action on remand should redetermine whether the action should continue as a class action. K.S.A. 60-223(c)(l) relating to determination of whether a class action may be maintained and to actions conducted partially as class actions states:
“An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.”
The class action order by Judge Woleslagel appears to be conditional. Looking through the record of this case we find that a substantial number of nursing facilities have exercised the right to opt out of the class as authorized by K.S.A. 60-223(c)(2); others have notified the court that they are no longer engaged in furnishing these services. Because of this and the lapse of time since the action was first filed, it would appear imperative that on remand the trial court should reexamine the prerequisites to a class action and, if the action is to continue as a class action, should specifically define the class in order to determine the names and the number of nursing homes that would be affected during the key period from July 1, 1971, to May 1, 1978.
We hold the statute, K.S.A. 39-708c(x) and amendments, together with K.A.R. 30-10-12 and K.A.R. 30-10-13 (1978), are not in conflict with either the federal Social Security Act or the federal regulations for the period from May 1, 1978, to February 29, 1980.
In accordance with the foregoing we hold the regulations of the Department of Social and Rehabilitation Services, K.A.R. 30-5-27, 30-9-12 and 30-10-12, for the period from July 1, 1971, to May 1, 1978, adopted to implement and take advantage of the Social Security Act Title XIX plan were invalid or were administered in such a way as to be invalid in their application as set forth in the foregoing opinion. The judgment is affirmed in part, reversed in part, and remanded for further proceedings in accordance with the foregoing opinion. | [
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The opinion of the court was delivered by
Holmes, J.:
This appeal by Stevens B. Acker, M.D., of Wichita, from a district court decision upholding a decision of the Kansas State Board of Healing Arts (Board) to suspend appellant’s license to practice medicine for two years culminates nearly ten years of controversy between Dr. Acker on one hand and Wesley Medical Center of Wichita (Wesley), the Medical Society of Sedgwick County (Society) and the Board on the other.
Dr. Acker is a graduate of the Kansas University School of Medicine and has been operating a general or family practice in Wichita since 1961. Prior to 1971 he performed general surgery, delivered babies and had general hospital privileges at Wesley and other Wichita hospitals. It appears that in 1971 a dispute arose between Dr. Acker and Wesley over some missing hospital records. Dr. Acker was suspended by Wesley from all admitting privileges, and subsequently other Wichita hospitals followed suit. Dr. Acker has not had hospital privileges in Wichita since the early 1970’s. Nevertheless his practice flourished and he developed a substantial general practice with numerous obstetrical patients. Between 1971 and 1977, Dr. Acker sought to regain his Wesley privileges by compliance with certain requests from the Board and the Society but was not successful. Twice during this period of time the Society filed complaints with the Board, but on each occasion the Board declined to take any action.
On October 13, 1977, the Board filed a petition against Dr. Acker in which it sought the revocation, suspension or limitation of his license to practice medicine. The allegations against Dr. Acker were:
“That probable cause exists that Dr. Acker did commit acts which would be deemed dishonorable conduct and professional incompetency, to wit:
(a) Failed to inform and deliberately misled patients in regard to his ability to deliver babies at Wesley Medical Center knowing full well he was denied hospital privileges at all Wichita hospitals.
(b) Improper diagnosis of hypoglycemia in several cases when hypoglycemia was not indicated.”
After a hearing before a panel of the Board, which included thirty witnesses, eighty-four exhibits and covers eight hundred thirty-four pages of transcript, the panel issued its report. The panel found from the evidence that:
“4. Testimony was presented showing that the respondent misled and failed to inform patients in regard to his ability to deliver babies at Wesley Medical Center knowing that he had no hospital privileges at any Wichita hospitals.
“5. Expert testimony failed to establish that respondent’s hypoglycemia diagnoses were inaccurate.”
The panel then reached the following conclusions and recommendations:
“C. Conclusions of Law
“1. The evidence introduced by the State substantially supports Count A of the Petition filed by the Attorney for the Board.
“2. The evidence introduced by the State is inconclusive as it pertains to Count B of the Petition filed by the attorney for the Board.
“D. Recommendations to Board
“1. The respondent, Stevens B. Acker, M.D., be adjudged guilty of dishonorable conduct by reason of his having failed to inform and having deliberately misled patients in regard to his ability to deliver babies at Wesley Medical Center while knowing full well that he was denied hospital privileges at all Wichita hospitals.
“2. The respondent be adjudged not guilty of professional incompetence, due to lack of evidence on Count B.
“3. That the respondent be suspended from the practice of medicine and surgery for a period of two years, commencing on the date of filing of the Order of the Board.”
On February 11,1978, the Board issued its order of suspension in which it repeated verbatim the foregoing findings and conclusions of the hearing panel and then rendered its decision and orders as follows:
“D. Decision of the Board
“1. The defendant, Stevens B. Acker, M.D., be adjudged guilty of dishonorable conduct by reason of his having failed to inform and having deliberately misled patients in regard to his ability to deliver babies at Wesley Medical Center while knowing full well that he was denied hospital privileges at all Wichita hospitals.
“2. The defendant be adjudged not guilty of professional incompetence, due to lack of evidence on Count B.
“3. That the defendant be suspended from the practice of medicine and surgery for a period of two years, commencing on the date this order is served on Stevens B. Acker, M.D.
IT IS THEREFORE BY THE BOARD ORDERED:
“1. That the license of the defendant, Stevens B. Acker, M.D., to practice Medicine and Surgery in this state is hereby suspended for two years commencing on the date this order is served on the defendant.
“2. That the defendant shall pay the costs of this proceeding as provided by law in the amount to be determined.”
Dr. Acker appealed to the district court where his request for a trial de novo was denied. On July 27, 1979, the trial court issued its memorandum decision affirming the action of the Board. This appeal by Dr. Acker followed. Additional facts will be set forth as they become necessary.
Although K.S.A. 1978 Supp. 65-2836 was amended in 1979, the amendments are not pertinent to this appeal and we will consider the statute as it now exists.
K.S.A. 1979 Supp. 65-2836 provides in part:
“A license may be revoked, suspended or limited when the licensee has been found to have committed any of the following acts: (a) Fraud in securing the license. (b) Immoral, unprofessional or dishonorable conduct or professional incompetency. (c) Conviction of a felony if the board determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust, (d) Use of untruthful or improbable statements or flamboyant, exaggerated or extravagant claims in advertisements concerning such licensee’s professional excellence or abilities. (e) Use and distribution of literature advertising professional abilities, (f) Other unethical advertising practice, (g) Addiction to or distribution of intoxicating liquors or drugs for any other than lawful purposes. (h) Willful or repeated violation of this act, the pharmacy act of the state of Kansas or the uniform controlled substances act, or any rules and regulations adopted pursuant thereto, or any rules and regulations of the secretary of health and environment which are relevant to the practice of the healing arts. (/) Unlawful invasion of the field of practice of any branch of the healing arts in which the licensee is not licensed to practice. (J) Failure to pay annual renewal fees specified in this act. (k) Failure to take some form of postgraduate work each year or as required by the board. (Í) Engaging in the practice of the healing arts under a false or assumed name, or the impersonation of another practitioner. The provisions of this subsection relating to an assumed name shall not apply to licensees practicing under a professional corporation or other legal entity duly authorized to provide such professional services in the state of Kansas. (m) Inability to practice the branch of the healing arts for which such person is licensed with reasonable skill and safety to patients by reason of illness, alcoholism, excessive use of drugs, controlled substances, chemical or any other type of material or as a result of any mental or physical condition.”
K.S.A. 1979 Supp. 65-2837 defines professional incompetency and unprofessional conduct setting forth seventeen specific instances of the latter.
K.S.A. 1979 Supp. 65-2865 provides:
“The board shall promulgate all necessary rules, regulations and forms, not inconsistent herewith, for carrying out the provisions of this act, which rules and regulations shall include standards for the dispensing of drugs by persons licensed to practice medicine and surgery. It may also adopt rules and regulations supplementing any of the provisions herein contained but not inconsistent with this act. All rules and regulations promulgated and adopted by the board shall be filed with the revisor of statutes as required by law.”
The charges for which Dr. Acker’s license was suspended were obviously based upon the commission of “dishonorable conduct” as set forth in 65-2836(6), thus the portion of the statute with which we are directly involved reads:
“A license may be revoked, suspended or limited when the licensee has been found to have committed any of the following acts: ...(b) Immoral, unprofessional or dishonorable conduct or professional incompetency.”
Appellant attacks the constitutionality of the statute as being vague and indefinite as the legislature has failed to provide by statute and the Board has failed to provide by rules and regulations any definition of the terms “immoral or dishonorable conduct.”
Are the words “immoral” and “dishonorable” so vague and indefinite that a person admitted to the practice of the healing arts in the State of Kansas would not know his rights, obligations and limitations thereunder? We think not.
In considering the constitutionality of a statute, “[i]t is the duty of this court to uphold legislation rather than defeat it. It is presumed that the legislature intended to pass a valid law. If there is any reasonable way to construe legislation as constitutionally valid, it should be so construed.” Parker v. Continental Casualty Co., 191 Kan. 674, 680, 383 P.2d 937 (1963).
Appellant argues that as neither the legislature, by statute, nor the Board, by rules and regulations, have defined what conduct is proscribed as being immoral or dishonorable such terms are without sufficient clarity to withstand constitutional attack. He contends that as the terms “unprofessional conduct” and “professional incompetency” have been defined at length (K.S.A. 1979 Supp. 65-2837), similar specific definitions or standards must be adopted to establish what may be immoral or dishonorable. Several cases are relied upon to support appellant’s position. See Tuma v. Board of Nursing, 100 Idaho 74, 593 P.2d 711 (1979); Megdal v. Oregon State Bd. of Dental Examiners, 228 Or. 255, 605 P.2d 273 (1979); and Dentistry Board v. Blumer, 78 Mich. App. 679, 261 N.W.2d 186 (1977).
This court in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), had occasion to review proceedings against Dr. Foote for unprofessional conduct. In Foote, we stated:
“Considering the entire policy expressed in the act, we believe the legislature, by enumerating certain acts and classifying them as unprofessional conduct, did not thereby intend to exclude all other acts or conduct in the practice of the healing arts which by common understanding render the holder of a license unfit to practice. It would indeed be difficult, not to say impractical, in carrying out the purpose of the act, for the legislature to list each and every specific act or course of conduct which might constitute such unprofessional conduct of a disqualifying nature. Nor does any such failure leave the statute subject to attack on grounds of vagueness or indefiniteness. Our statute makes no attempt to delineate what acts are included in the terms immoral or dishonorable conduct, which are also made grounds for revocation. The determination whether by common judgment certain conduct is disqualifying is left to the sound discretion of the board.
“In 41 Am. Jur., Physicians and Surgeons, % 49, pp. 175-176, we find this: ‘No other ground for revocation is invoked as frequently, perhaps, as “unprofessional,” “dishonorable,” or “immoral” conduct in connection with the practice of medicine or the particular branch or system thereof in which the licensee in question is engaged. Such conduct is specified as grounds for revocation in many of the statutes, and, as appears above, the validity of such statutes has been sustained by the courts in almost every instance. The quoted words, and other similar ones which are sometimes used in the statutes, are words of general, rather than exact and definite significance. The courts are in substantial accord, however, that they are to be construed to mean that which, by common understanding and general opinion, is considered to be grossly immoral, dishonorable, or disreputable in connection with the practice of medicine. Thus, a statute authorizing revocation for “immoral,” “dishonorable” or “unprofessional” acts or conduct contemplates conduct which either shows that the person guilty of it is intellectually or morally incompetent to practice the profession or has committed an act or acts of a nature likely to jeopardize the interest of the public. . . (Emphasis added) pp. 453-454.
In Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P.2d 597 (1939), two dentists had been charged by the Board with dishonorable conduct for advertising their services in Kansas City papers. While the constitutionality of the statute (G.S. 1935, 65-1407) which provided for revocation of a license for “dishonorable conduct” was not under attack, the following language from the opinion is pertinent:
“Abstract dissertations on the subject of what constitutes dishonorable conduct are interesting but not always helpful. The decision in each case must rest upon its own peculiar facts. The term ‘dishonorable’ must be construed as having been used by the legislature in its generally accepted sense. Webster’s New International Dictionary, first ed., defines it as follows:
‘Wanting in honor; not honorable; bringing or deserving dishonor; staining the character, and lessening the reputation; shameful; disgraceful; base.’
“Soule’s Dictionary of English Synonyms, Revised and Enlarged by Alfred D. Sheffield (1938), defines the word thus:
‘Dishonorable. 1. Disreputable, discreditable, disgraceful, shameful, scandalous, infamous, ignominious.’
‘2. Base, devoid of honor, shameless, false, false-hearted.’ ” p. 368.
This court has also had occasion to review the application of the term “dishonorable conduct” to specific acts of a medical or dental licensee in Crabb v. Board of Dental Examiners, 118 Kan. 513, 235 Pac. 829 (1925); Winslow v. Board of Dental Examiners, 115 Kan. 450, 223 Pac. 308 (1924); Richardson v. Simpson, 88 Kan. 684, 129 Pac. 1128 (1913).
In Simpson the term “dishonorable conduct” withstood a constitutional challenge that it was void as being too indefinite. This court stated:
“The plaintiff contends that the portion of the statute warranting the revocation of a dentist’s license for ‘dishonorable conduct’ is unconstitutional and void, because the phrase quoted is too indefinite to be made the basis for such action. Several courts have held in accordance with that contention, the argument being that a course regarded by one person as dishonorable may not seem so to another, and there is no fixed standard by which the disagreement can be settled. . . . “We think it is going entirely too far to say that such a provision is a nullity. Before a license to practice dentistry is issued the applicant is required to furnish proof that he is ‘of good moral character.’ (Gen. Stat. 1909, § 7985.) The phrase is general, but no great difficulty attends its application. . . . The evil results, the fear of which occasioned the decisions against the validity of provisions authorizing the revocation of a practitioner’s license upon general grounds, can be avoided by reasonable interpretation.” 88 Kan. at 689-690.
In Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P.2d 614 (1973), the term “wrongful actions” as a ground for revoking or suspending a license was found not to be so vague and uncertain as to require a finding that the statute (K.S.A. 74-5324[e]) was unconstitutional. This court stated:
“In the second place the respondent argues that the term ‘wrongful actions’ set forth in K.S.A. 74-5324(e) as a ground for revoking or suspending a license is unconstitutionally vague, that is, the term is so vague and uncertain that men of common intelligence and understanding will differ as to its meaning and application. In Tri-State Hotel Co. v. Londerholm, supra [195 Kan. 748, 408 P.2d 877], we said our test for measuring vagueness is ‘whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice.’ (p. 765.)
“We believe that a member of the profession to which the act applies would have no difficulty in comprehending what the term implies so far as his conduct as a psychologist is concerned.” p. 111.
We adhere to our statements in Foote and hold that the terms “immoral conduct” and “dishonorable conduct” are not so vague and indefinite that the statute K.S.A. 1979 Supp. 65-2836 must be declared unconstitutional. While the adoption of specific rules and regulations as authorized by K.S.A. 1979 Supp. 65-2865 might be helpful in setting forth specific acts included within the term “dishonorable conduct,” no such specification could be all-inclusive, and the failure to adopt such rules and regulations does not render the statute unconstitutional. When the terms “immoral” and “dishonorable” are given their ordinary meaning as understood in common usage, we think they are sufficiently clear that persons of common intelligence and understanding can determine whether any given factual circumstance falls within the proscribed conduct.
Next, Dr. Acker contends that the Board is required to make basic findings of fact supporting its conclusion of “dishonorable conduct” and that the findings made in this case are insufficient. Dr. Acker was charged with dishonorable conduct by failing to inform and deliberately misleading patients as to his privileges to deliver babies at Wesley Medical Center. While the findings of the Board did not outline the evidence presented, the Board did find:
“4. Testimony was presented showing that the respondent misled and failed to inform patients in regard to his ability to deliver babies at Wesley Medical Center knowing that he had no hospital privileges at any Wichita hospitals.”
Detailed findings of fact and conclusions are certainly recommended and are of great help to the trial court and appellate court in reviewing administrative decisions. See Blue Cross & Blue Shield v. Bell, 227 Kan. 426, 607 P.2d 498 (1980). However, we have held:
“Specific findings of fact by an administrative agency are desirable in contested matters, but are not indispensable to a valid decision in the absence of a statute or rule requiring them.” Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. ¶ 9, 539 P.2d 1 (1975).
In commenting upon the findings of the Board in this case, the trial judge stated:
“I do not know how much more directly the Board could make findings of fact. I grant Appellant that the Board did not specifically say in each instance what portions of the testimony of the witnesses it believed and what portions of the testimony of Dr. Acker the Board believed, but I would point out that the Board is not required to do that. The findings of fact made by the Board are like those made by any Court. Their mere statement indicates that the Board believed that testimony supporting the finding and disbelieved the testimony not supporting the finding. Courts of law are required to set out the basic facts which cause them to conclude as they do, but that requirement of Statute and Supreme Court rule is not binding upon the Board. In my opinion, the factual finding is amply made by the Board and is adequately supported by the testimony.”
We agree with the trial court and are of the opinion that the findings of the Board meet the minimum requirements necessary to allow meaningful review on appeal.
Next, appellant contends that the Board’s decision was fraudulent, arbitrary or capricious and was not supported by the evidence. At this point we once again state the scope of review by the district court and the appellate courts when administrative decisions are involved:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority. (Kansas Ass’n of Public Employees v. Public Service Employees Union, 218 Kan. 509, Syl. f 1, 544 P.2d 1389 [1976].)” Behrmann v. Public Employees Relations Board, 225 Kan. 435, Syl. ¶ 7, 591 P.2d 173 (1979).
Without going into detail, three former obstetrical patients of Dr. Acker testified that he affirmatively told them or led them to believe that he had hospital privileges at Wesley and that he would personally deliver the babies. In addition, there was expert testimony concerning the personal relationship between a pregnant woman and her obstetrician and the traumatic emotional effect that might be caused a patient upon finding out at the last minute that her doctor was not going to be able to deliver her baby. While the testimony of the three patients was refuted, it would, if believed, be sufficient to support the findings of the Board and would be within the realm of dishonorable conduct. The intentional misrepresentation or misleading by a doctor to a patient of the scope of his ability and authority to practice medicine could very well be considered dishonorable conduct. The decision of the Board is substantially supported by evidence and there is no showing that the Board’s action was fraudulent, arbitrary or capricious.
Appellant next complains that a two-year suspension is too severe a sanction for the misconduct of Dr. Acker. It is argued that under the statute the Board could have limited the scope of his practice and could have prohibited him from further obstetrical practice without total suspension of his right to practice medicine. While we agree that the Board could have ordered such a limitation, the suspension ordered was within the statutory authority of the Board and its imposition based upon the evidence in this record does not amount to fraudulent, arbitrary or capricious conduct. Lacking such conduct by the Board, the sanctions imposed, being within the statutory authority of the Board, will not be disturbed on appeal.
Finally, appellant urges that he should have been granted a trial de novo in district court and asks that we overrule our recent holding in Behrmann. We decline to do so.
We have carefully reviewed the record and considered all points raised by appellant and find them to be without merit.
The judgment is affirmed. | [
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Whereas, Jon K. Lowe has previously applied for reinstatement of his license to practice law in the State of Kansas; and
Whereas, on the 3rd day of June, 1980, it was ordered by the Court that his license to practice law in the State of Kansas be reinstated subject to his taking and successfully passing the July, 1980, bar examination [228 Kan. 5]; and
Whereas, the Kansas Board for Admission of Attorneys has certified to the Clerk of the Appellate Courts that Jon K. Lowe took and successfully passed the July, 1980, bar examination.
Now, Therefore, It Is ordered that the license to practice law in the State of Kansas of Jon K. Lowe be and it is hereby reinstated effective as of the 12th day of September, 1980. This order shall be published in the official Kansas Reports and a certified copy hereof shall be mailed to Jon K. Lowe, the Clerk of the United States District Court for the District of Kansas, and the Clerk of the District Court of the Seventh Judicial District of Kansas.
Dated at Topeka, Kansas, this 12th day of September, 1980.
By Order of the Court. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action involving convictions of one count of felony murder (K.S.A. 21-3401), one count of conspiracy to commit burglary (K.S.A. 21-3302 and 21-3715), two counts of felony theft (K.S.A. 1979 Supp. 21-3701), two counts of burglary (K.S.A. 21-3715), and one count of attempted burglary (K.S.A. 21-3301 and 21-3715). The defendant, William R. Hearron, appeals only from the conviction of felony murder and does not challenge the other convictions.
The facts in the case are undisputed and are essentially as follows: On the evening of January 22, 1979, Ann Terry, who resided on North 70th Street in Kansas City, Kansas, was looking out a window of her home and saw three black youths walk up the driveway. She saw and heard them try to open the garage doors. She advised her husband, Delmer Terry, who immediately turned on an outside light over the garage. The three youths then fled. After notifying the police, the Terrys decided to look for the youths. They got into their automobile and followed a white van which was driving slowly in front of their house. After two or three blocks, the van turned left. The Terrys turned right, spotting the youths who had attempted to break into their garage. Delmer Terry stopped the car, got out, and accused them of attempting to break into his house. The boys pulled firearms. Three shots were fired, wounding Terry. Terry fell back into the car and collapsed. A nearby resident came to the scene and then called an ambulance and the police. While Mrs. Terry remained with her husband, the white van again appeared. The van stopped across from the Terry vehicle. Ann Terry was able to see defendant, William Hearron, looking at their car, before slowly driving on. Defendant was. the driver and sole occupant of the van. The whole episode lasted approximately five minutes. Delmer Terry later died from his wounds.
On February T, 1979, Kansas City police officers obtained a search warrant and searched defendant’s house. The police found two black youths hiding in the attic. One of the boys, James Scaife, was identified as the person who shot and killed Mr. Terry. The police also found goods stolen in other January 22, 1979, burglaries. Scaife and defendant were tried together. Scaife was convicted of felony murder. Defendant was also convicted of felony murder as an aider and abettor.
On appeal, the defendant challenges the sufficiency of the evidence to establish felony murder. The defendant maintains, in substance, that the attempted burglary had been completed at the time the shooting occurred and, hence, the felony-murder rule should not be applied. We have concluded from the undisputed factual circumstances that this point is without merit. The decedent’s widow, Ann Terry, saw the black youths walk on the driveway to the Terry’s garage where they yanked on the garage doors in an attempt to open them. Delmer Terry turned on the garage lights, and the boys immediately fled from the scene. The Terrys immediately followed them in the family car and encountered them on the street approximately two or three blocks from the Terry home within a matter of minutes. Terry approached the boys and stated to them that he had just seen them at his home trying to break in. At that time, the fatal shots were fired. This evidence was sufficient to establish a killing during the commission of a felony, attempted burglary.
K.S.A. 21-3401 includes as murder the killing of a human being “committed in the perpetration or attempt to perpetrate any felony.” Although that statute does not specifically include, within the felony-murder rule, the killing of another during flight from the scene of the crime, it is the established law of this state that flight from the scene of the crime may be considered as a part of the res gestae of the crime and a killing during flight may constitute felony murder. In State v. Boone, 124 Kan. 208, 257 Pac. 739 (1927), the defendant was a member of a conspiracy to burglarize a railroad station. The defendant positioned herself in the getaway vehicle several blocks away, while two of her cohorts proceeded to the railroad station to commit the crime. Her two associates attempted to break into the station but were discovered and had to flee the scene with the police in close pursuit. The defendant’s associates and the police exchanged gunfire, during which one police officer was killed. The defendant, Boone, was convicted of first-degree felony murder. She appealed, contending that the burglary had been abandoned prior to the killing, so that an instruction to the jury on felony murder was improper. The court upheld the conviction, holding that the evidence was sufficient to support the conviction of felony murder. The court pointed out that the evidence was clear that the defendant’s associates had been previously armed and that the killing occurred in their attempt to avoid arrest and to escape from the scene of the crime.
Other jurisdictions, likewise, hold flight from the scene of the crime to be a part of the res gestae and that a killing during the escape or flight may justify application of the felony-murder rule. See generally the cases cited at 40 Am. Jur. 2d, Homicide § 73, at p. 367, and the annotation at 58 A.L.R. 3d 851. Some jurisdictions hold the killing to be within the res gestae of the underlying felony if committed during escape or attempt to escape and the accused has not yet reached a point of temporary safety. State v. Squire, 292 N.C. 494, 512, 234 S.E.2d 563 (1977); People v. Salas, 7 Cal. 3d 812, 820-23, 103 Cal. Rptr. 431, 500 P.2d 7 (1972), cert. denied 410 U.S. 939 (1973). Other jurisdictions hold a killing to be within the felony-murder rule if the killing and felony are so “inextricably woven” that they may be considered as “one continuous transaction” or so connected that there is no break in the chain of events. State v. Harley, 543 S.W.2d 288 (Mo. App. 1976); Commonwealth v. Alston, Appellant, 458 Pa. 412, 317 A.2d 229 (1974); Commonwealth v. Kelly, Appellant, 337 Pa. 171, 174, 10 A.2d 431 (1940).
Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide. When we apply the factors of time, distance, and causal relationship to the facts of this case, we have no hesitancy in holding that it was a factual issue for the jury to determine whether the killing of Delmer Terry occurred during the commission of the attempted burglary.
The second point raised by the defendant is that the trial court’s instructions were erroneous because they, in effect, directed a verdict against the defendant by taking from the jury the fact question whether the black youths were attempting to flee the scene at the time the killing occurred. We have examined the instructions given and find the objections asserted by the defendant cannot be sustained. Instruction No. 5 set forth the essential elements of the crime of murder in the first degree and required the State to prove that the killing of Delmer Terry “was done while in the commission of the crime of attempted burglary.” Instruction No. 6 informed the jury that “a participant in the commission of a crime is still considered to be in the commission of such crime during the period of time immediately thereafter while he is fleeing the scene seeking to escape pursuit and apprehension.” Defendant’s counsel does not deny Instruction No. 6 is a correct statement of the law. Instruction No. 8 specifically declared that, in order to convict the defendant Hearron of felony murder, the burden of proof was upon the State to prove that Hearron intentionally aided, counseled, or assisted in some manner in the commission of the crime and that the shooting and killing of someone in the commission of such crime was reasonably foreseeable. Instruction No. 9(a) instructed the jury that, if the jury should find Delmer Terry was not shot while the defendant James Scaife was still in the commission of the crime of attempted burglary, it should return a verdict of not guilty as to the defendant Hearron on the felony-murder count. Considering all of the instructions together, we have concluded that they fairly stated the law applicable in the case. We note that defense counsel did not object to the wording used in the instructions or suggest to the court how they might be clarified. Since the instructions were not clearly erroneous, the defendant’s claim of error cannot be sustained. See K.S.A. 22-3414(3).
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by George Joe Tate from a conviction by a jury of one count of aggravated anal sodomy. (K.S.A. 21-3506.) The sole question on appeal is whether the trial court committed error in consolidating Tate’s trial with the trial of Gary L. Kepka, who was charged and convicted of one count of aggravated anal sodomy and one count of oral sodomy involving the same victim. Kepka has also appealed his convictions. (State v. Kepka, # 52,159, this day decided in an unpublished opinion.)
The facts of the case are basically not in dispute. On June 13, 1979, there were seven men in cell two of the Reno County jail. Five of the seven were involved in a mock trial to determine if the victim, Jack Jones, was a homosexual. After finding him “guilty” and as a penalty for this determination, Jones was forced to submit to anal intercourse with Kepka and appellant Tate. A third inmate, Urban, approached Jones but did not engage him in sodomy. Before the acts of sodomy occurred, the victim was apparently beaten by the three inmates for approximately ten or fifteen minutes. The victim testified Tate was the first to commit anal sodomy, followed by Kepka. Shortly thereafter Kepka forced Jones to perform oral sodomy in the shower. Jones testified that all of these acts were done against his will.
Appellant contends that itwas error to consolidate his trial with that of Kepka over the objections of both defendants. K.S.A. 1979 Supp. 22-3202(3) reads as follows:
“(3) Two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
Appellant and Kepka were not charged in the same complaint and information but were tried jointly. The test for joinder of two or more cases for trial is the same as that for charging two or more defendants in the same complaint, information or indictment and the determination rests in the sound discretion of the trial court.
Defendant argues that he was improperly tried along with Kepka because he and Kepka were charged with separate similar crimes (aggravated anal sodomy), not the same crime. Furthermore, he asserts the joinder was improper because Kepka was charged with another different crime (oral sodomy) in which Tate took no part. Appellant’s argument lacks merit.
This action involves joinder of defendants for trial, not joinder of charges, and the section of the statute quoted above is the only portion of the statute which is applicable to this case. Our statute, K.S.A. 1979 Supp. 22-3202(3), is identical to F.R. Grim. P. Rule 8(b). Appellant relies on State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977), where we dealt at length with the question of misjoinder of defendants. In Roberts four defendants were jointly tried on assorted charges growing out of two separate and distinct incidents involving robberies of an apartment and a bar which occurred on different days. Roberts was charged and convicted of aggravated robbery, conspiracy to commit aggravated robbery, aggravated burglary, and misdemeanor theft in connection with the apartment robbery. He was not charged and there was no evidence introduced connecting him with the bar robbery. We held that it was error to try Roberts along with other defendants who were tried not only for their participation in the apartment robbery but also for the robbery of the bar.
After examining K.S.A. 22-3202(3) and F.R. Crim. P. Rule 8(b), and the applicable annotations in 1 Wright, Federal Practice and Procedure: Criminal § 144, pp. 322-324 and 326-329 (1969), this court said:
“We conclude two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.
“We further conclude if two or more defendants have been tried together and none of the requirements in the preceding paragraph have been met a misjoinder results and is an absolute ground for reversal and separate trials. (See Vernon’s Kansas Statutes Annotated, Code of Criminal Procedure, § 22-3202, n. 10, p. 669; and Wright’s Federal Practice and Procedure, supra.)” State v. Roberts, 223 Kan. at 55.
Appellant argues that the charges of anal and oral sodomy against Kepka allege separate and distinct offenses from the charge of anal sodomy against him and that proof of the charges against Kepka would not require proof of the charges against appellant, and vice versa. Appellant has misconstrued the language of Roberts. The statute speaks, in part, to “the same series of acts or transactions constituting the crime or crimes.” In Roberts we said that two or more defendants could be tried together when the offenses charged were part of a common scheme.
In Scheve v. United States, 184 F.2d 695 (D.C. Cir. 1950), the court had occasion to consider the application of Rule 8(b). Four defendants were jointly tried on charges of gambling and one of the defendants, Scheve, was also tried on an additional charge of assault. The three defendants who were not participants in or charged with the assault objected to being tried jointly with the fourth defendant. It appears that all four defendants were engaged in the gambling operation but only Scheve was involved in the assault upon the wife of one of the customers who was complaining about her husband’s losses. The court stated:
“[T]here was an unbroken chain of causation between the defendants’ gambling business, Ricker’s losses, his wife’s demand for return of some of them, Joseph Scheve’s assault on her, Ricker’s apparent attempt to intervene, and Scheve’s assault on Ricker. Since the gambling and the assault were ‘acts or transactions connected together’, Rule 8(a) permits joinder of the offenses in one indictment. Since the gambling and the assault were a ‘series of acts or transactions’ in which series, if not in each of its members, all four defendants ‘participated’, Rule 8(b) permits joinder of the defendants in one indictment.” p. 696. “Since Rule 8(b) expressly provides that ‘all of the defendants need not be charged in each count’, the fact that the present appellants were not charged with assault did not prevent joinder.” p. 697.
In Williams v. United States, 416 F.2d 1064 (8th Cir. 1969), the defendant was charged with one count of kidnapping while his codefendants were charged and tried on two counts of kidnapping. The court stated:
“If the requisites of Rule 8(b) are met, joinder of multiple defendants and multiple counts are not invalidated by lack of individual participation by all defendants in all of the crimes charged. As stated by Judge Lay in Haggard v. United States, 8 Cir., 369 F.2d 968, 973, ‘Nor do we think that'“participation” in “the same series” requires “participation” in each transaction of the series.’ (Cites omitted.)” p. 1069.
Again, in United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), where multiple defendants were jointly tried on assorted charges of gambling and income tax evasion, the court stated:
“It is implicit in the language of Rule 8(b) that so long as all defendants participate in a series of acts constituting an offense or offenses, the offenses and defendants may be joined even though not all defendants participated in every act constituting each joined offense.” p. 899.
In the present case, appellant and Kepka both participated in the mock trial of Jones, both participated in the beating administered to Jones, both engaged Jones in anal sodomy as part of the punishment for Jones being found “guilty” of being a homosexual and Kepka also engaged Jones in oral sodomy. The three offenses were all part of a series of acts or transactions and part of a common scheme in which both defendants participated. There was no error in trying the defendants jointly.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by Patrick D. Harrington, natural father of the minor child, Tatum Olivia Harrington, from a decree of adoption granted to Richard E. Toland, stepfather of the child.
The trial court found the natural father had failed to assume the duties of a parent for two consecutive years.
In material respects the record reflects only minor conflicts in the testimony. The trial court found Tatum was born on August 18, 1974, to the marriage of Patrick and Elaine Harrington. The parents were divorced in November 1974. Custody was awarded to the mother, no specific visitation rights were established, and the father was ordered to pay $50 monthly child support.
Following the divorce of the natural parents, the mother married Richard Toland, the petitioner, in August 1975. The mother filed written consent to Toland’s adoption of the child, but the natural father did not consent to the adoption. The trial court found the father was not in arrears in child support payments at the time the adoption petition was filed, January 29, 1979. The father had made two payments during the two-year period immediately preceding the filing of the adoption petition. In March 1977 the father paid $150; in December 1978 he paid $1,200. During the same two-year period the father sent one birthday card to Tatum in August 1977, and one Christmas card to the Tolands in December 1978. The father testified he had given a few dollars on two separate occasions to his mother to purchase a gift for the child.
The trial court found the father did not attempt to exercise his visitation rights during the two-year period, nor did he have any contact or visits with the child during that period. At all times the father knew the child’s whereabouts, but testified he felt uncomfortable visiting the child in the Toland home. The trial court found the father “has failed to assume the duties of a parent for the two years immediately preceding the filing of the adoption petition,” and concluded:
“The duties of a parent include more than the payment of support, particularly when a large deficit in the monthly child support is made in one lump sum shortly prior to the filing of the adoption petition. The parental duties of the respondent of care, interest in, affection for and visitation of his child Tatum, are for all intents non-existent for the two year period immediately prior to the filing of the petition for adoption by the petitioner. Therefore, a consent by the respondent Patrick Daniel Harrington, to the adoption of Tatum Olivia Harrington, by the petitioner is not required.”
The trial court then granted Richard Toland’s petition for adoption.
We have gleaned from the record the following additional relevant evidence. When the father and mother both resided in Topeka, the father regularly exercised visitation at least twice weekly. When the mother married Richard Toland in August 1975, they moved across the state to Great Bend. The father testified he visited the child in Great Bend three or four times, but was permitted to take the child for only one complete weekend, in May 1976. The Tolands moved to Junction City in July 1976. The father testified that during the two-year period prior to filing the adoption petition, the mother discouraged visitation, and occasionally requested him to consent to adoption. The mother wrote to him and explained her desire that he not be part of their daughter’s life. The last time the father visited the child was on January 1, 1977, at the home of his mother, the child’s paternal grandmother. Both parents testified to an agreement suspending past due child support payments while the father considered possible consent to the adoption. The large child support payment made in December 1978 was enclosed in the Christmas card the father sent to “The Tolands.” The payment was a cashier’s check purchased on September 11, 1978, but the card and check were not mailed until mid-December 1978.
The father briefs two issues on appeal. He contends the Kansas adoption statutes, particularly K.S.A. 59-2102, must be strictly construed in favor of natural parents. The father further contends he has not failed or refused to assume the duties of a parent for two consecutive years.
K.S.A. 59-2102 provides, in pertinent part, that:
“Before any minor child is adopted, consent must be given to such adoption:
“(1) by the living parents of a legitimate child, or
“(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent.”
The consent by the natural parents to the adoption of their child, where required by statute, is regarded as an essential requisite to jurisdiction on the part of the court to render a valid decree of adoption. In re Marsolf, 200 Kan. 128, 131, 434 P.2d 1010 (1967); see In re Nelson, 202 Kan. 663, 451 P.2d 173 (1969).
Under K.S.A. 59-2102 the consent of natural parents to the adoption of a legitimate child is specifically required unless the case falls within one of the enumerated exceptions. The facts warranting an exception as prescribed by the statute must be clearly proven before the child can be adopted without consent of the natural parent. In re Sharp, 197 Kan. 502, 505, 419 P.2d 812 (1966). See In re Nelson, 202 Kan. 663, Syl. ¶ 3.
Generally speaking, adoption statutes are strictly construed in favor of maintaining the rights of natural parents in controversies involving termination of the parent-child relation, and especially is this true in those cases where it is claimed that by reason of a parent’s failure to fulfill parental obligations as prescribed by statute, his consent to the adoption is not required. In re Sharp, 197 Kan. at 504.
The law in other jurisdictions seems to be fairly well settled that in order to grant an order or decree of adoption in opposition to the wishes and against the consent of the natural parent, the conditions prescribed by statute which make the consent unnecessary must be clearly proved and the statute construed in support of the right of the natural parent. The law is solicitous toward maintaining the integrity of the natural relation of parent and child, and where the absolute severance of the relation is sought without the consent and against the protest of the parent, the inclination of the courts is in favor of maintaining the natural relation. In re Waters, 195 Kan. 614, 617, 408 P.2d 590 (1965).
Strict construction of K.S.A. 59-2102 is necessary to protect the rights of the non-consenting natural parent, because a decree of adoption terminates the parental rights of the non-consenting natural parent. K.S.A. 1979 Supp. 59-2103 states in pertinent part:
“Upon such adoption all the rights of natural parents to the adopted child, including their right to inherit from such child, shall cease, except the rights of a natural parent who is the spouse of the adopting parent.”
We have strictly construed the statutory two-year time period to exclude the gestation period. In re Nelson, 202 Kan. at 663.
Emphasis on protection of natural parent’s rights is also bolstered by United States Supreme Court decisions which have scrutinized due process rights of the natural fathers of illegitimate children. See Quilloin v. Walcott, 434 U.S. 246, 54 L.Ed.2d 511, 98 S.Ct. 549 (1978); Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972).
A review of recent cases on adoption, wherein K.S.A. 59-2102(3) was controlling or considered, is set forth in In re Adoption of Steckman 228 Kan. 669, 620 P.2d 319 (1980), reaffirming our strict construction of K.S.A. 59-2102, and in particular section 3 of that statute.
Here the father contends he did not fail or refuse to assume the duties of a parent for the two years immediately preceding the filing of the adoption petition.
Under our strict interpretation of K.S.A. 59-2102(3) we hold upon the whole record presented, as a matter of law, the natural father has not “failed or refused to assume the duties of a parent for two consecutive years” prior to the filing of the adoption petition by the stepfather. Here the natural mother discouraged visitation, occasionally requested the natural father to consent to adoption, wanted the natural father to be no part of their daughter’s life, agreed that the natural father not pay child support while he considered giving consent to adoption, and the natural father, prior to the filing of the adoption petition by the stepfather, had made all child support payments due.
Accordingly, the lower court was without jurisdiction to grant the adoption, because the natural father did not consent. No statutory exception applied which would permit adoption without the father’s consent. The judgment of the lower court is reversed.
Holmes, J., dissenting. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions of rape (K.S.A. 1979 Supp. 21-3502) and aggravated kidnapping (K.S.A. 21-3421). The evidence presented at the trial was undisputed that in the early morning hours of June 8, 1979, the defendant, Randolph C. Cabral, had sexual relations with the complaining witness in Hutchinson. The complaining witness was a young lady, sixteen years of age, who was visiting in Hutchinson. In order to protect her name, we will refer to her as Miss A.
The primary issue presented to the jury was whether the sexual relations between the defendant and Miss A were consensual or accomplished forcibly without her consent. Miss A was in Hutchinson visiting her sister, a student at Hutchinson Junior College and residing at the dormitory. On the evening of June 7, 1979, the sister drove Miss A and two friends, Mina and Rose, to the Fourth Street Station, a beer tavern. It was ladies night at the tavern, when all women were treated to free beer all night. During the course of the evening, Rose met an acquaintance, Ernie Cabral, who joined the young women. Miss A indicated that she wanted to meet someone and was introduced to Ernie’s cousin, the defendant. The hour began getting late and it was suggested that the defendant drive the young women back to the dormitory. Thereupon, the defendant, Miss A, Ernie, Rose, and Mina got into the defendant’s car and he drove them to the dormitory. Mina got out of the car and went into the dormitory but Rose and Miss A accepted the invitation of Ernie and the defendant to smoke marijuana and drink more beer. The four paired off, with Rose and Ernie in the back seat, defendant and Miss A in the front seat. They drove around for awhile and eventually ended up at Elm-dale Park, commonly known as Mosquito Park. Rose and Ernie left the car and the defendant and Miss A remained in the car to smoke a “joint.” In due time, the defendant tried to kiss Miss A, but she spurned his advances because he was “too old.” Defendant then made further advances toward Miss A and, when she rejected him, he put his hand over her mouth and nose and threatened to throw her into Cow Creek if she did not do as he requested. She resisted and the defendant backed off and again agreed to take Miss A back to the dormitory. Rather than returning to the dormitory, defendant drove his car to Shadduck Park in South Hutchinson, where he grabbed Miss A’s arm, locked the door, and proceeded to drive behind a tree and park the vehicle. The defendant then proceeded to forcibly rape Miss A. After it was over, Miss A requested the defendant to take her back to the dormitory and he proceeded to do so. As they were driving back, the defendant asked Miss A to hold his hand and to go out with him in the future. She resisted his advances and, in the course of the drive, jumped out of the car and began to run. The defendant chased her and Miss A began yelling for help. The defendant then fled.
The defendant’s version of the story differed. Defendant tes tified in great detail about his seduction of Miss A and stated that, after some persuasion, she finally agreed to have sexual relations. Following the sexual relations, she became angry and used abusive language toward him. He tried to talk to her as they drove toward the dormitory. He stated that he pulled the car over to the side of the street to keep Miss A from jumping out of the moving car. He testified that she ran from the vehicle and sat down in the middle of an intersection, and that he tried to get her out of the intersection so that she would not be hurt. He finally left when she became abusive and kept swearing at him. The jury did not accept the defendant’s version of the episode, concluding that the defendant was guilty of forcible rape and aggravated kidnapping. The defendant appealed.
Defendant’s first point on the appeal is that the trial court erred in refusing to suppress statements made by the defendant to certain police officers. The record shows that the trial court conducted a Jackson v. Denno hearing and found that the statements were knowingly and voluntarily given after the defendant was given the Miranda warnings. The findings of the trial court are supported by substantial competent evidence presented at the suppression hearing and they cannot be disputed on appeal. State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978). The defendant also asserts as a point of error certain remarks made by the prosecutor which the defendant maintains were prejudicial. The prosecutor’s remarks complained of were made at the Jackson v. Denno hearing and were not made in the presence of the jury. We fail to see how such remarks, even if improper, could have prejudiced the rights of the defendant. The defendant also objects to certain questions asked one of the defendant’s witnesses on cross-examination. We have examined this line of questioning and find that the questions were within the bounds of propriety and that the trial court did not abuse its discretion in refusing to strike the testimony of the witness on cross-examination.
The primary issue raised on the appeal is that the evidence, taken as a whole, was not sufficient to support a conviction of kidnapping as a crime separate and distinct from the commission of the forcible rape. Defendant maintains, in substance, that the defendant and the victim, Miss A, had been together all evening at the tavern and rode around in the defendant’s car by mutual consent. The evidence disclosed that, on the way to the dormitory where the victim was residing, the defendant turned into Shad-duck Park in South Hutchinson, locked the car door, proceeded behind a tree, and raped the victim. The defendant maintains that the confinement in the automobile was incidental to and a necessary part of the force used in the commission of the forcible rape, and did not support a separate charge of kidnapping. The State contends that there was a separate and distinct kidnapping, because the defendant drove the car containing his victim behind a tree in order to facilitate the crime of rape and that evidence is sufficient to sustain the charge of rape.
Both the defendant and the State rely on State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). Buggs is the leading Kansas case which discusses in depth the crime of kidnapping (K.S.A. 2It 3420), and the elements necessary to establish the offense, where a taking or confinement occurs to facilitate the commission of another crime. Syllabus ¶ 10 of the opinion in Buggs states as follows:
“If a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of a kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
The subject is discussed in the opinion on pages 209 through 217.
The basic issue presented for our consideration in this case is whether the confinement of the victim was merely incidental to the commission of the rape and of a kind inherent in the nature of rape or had some significance independent of the forcible rape committed by the defendant.
We have concluded that, under all the factual circumstances presented in the record, a separate and independent crime of kidnapping was not established. Here the defendant and his victim had been together all evening, driving around Hutchinson and stopping at various places by mutual consent. After leaving the first park and on the way to the dormitory where the victim resided, the defendant simply turned into the second park, locked the door, and proceeded to rape his victim. When forcible rape occurs in an automobile, of necessity, some confinement of the woman is a necessary part of the force required in the commission of the rape. Such a confinement is of a kind inherent in the nature of forcible rape and incidental to the commission of the rape. Applying the factors set forth in State v. Buggs, we have concluded that the evidence presented at the trial was not sufficient to establish the independent crime of aggravated kidnapping and that the defendant should be discharged from the conviction on that charge. However, the conviction of the defendant on the charge of rape is fully supported by the evidence and must be upheld.
For the reasons set forth in this opinion, the judgment of the district court convicting the defendant of the crime of aggravated kidnapping (K.S.A. 21-3421) and the sentence imposed thereon by the district court are set aside and the defendant is discharged on that count of the information. The conviction and sentence imposed by the district court on the charge of rape (K.S.A. 1979 Supp. 21-3502) is not disturbed and is affirmed in all respects. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the State, pursuant to K.S.A. 22-3602(b)(l), from the district court’s post-trial order dismissing criminal charges against David Wayne Clovis, setting aside the jury’s verdicts, and discharging the defendant. The district court set aside the verdicts and dismissed the charges on the ground that the defendant was denied a speedy trial.
The facts are not in dispute. This is the second time the case has been before this court. In State v. Clovis, 248 Kan. 313, 807 P.2d 127 (1991) (Clovis I), the district court’s dismissal with prejudice of two counts of a multiple-count complaint was affirmed. The dismissal was “a sanction for the State’s failure to comply with a discovery order to disclose the identity of a confidential informant.” 248 Kan. 313.
The original multiple-count complaint/information was filed on March 31, 1989 (1989 complaint). On November 6, 1989, the district court conducted a bearing on Clovis’ motion to dismiss for failure to identify the informant, struck Counts 10 and 11, and filed “[a]n order journalizing the rulings.” 248 Kan. at 320. The State appealed. On November 13, 1989, the State dismissed the remaining charges against Clovis. This court’s opinion was filed on March 1, 1991.
On March 22, 1991, the State filed another complaint/information (1991 complaint). It contained four counts charging that “on or between March 24, 1989, and March 25, 1989” Clovis possessed methamphetamine with intent to sell (Count I), possessed marijuana (Count II), possessed drug paraphernalia (Count III), and possessed cocaine (Count IV). Counts I and III were included in the original multiple-count complaint filed in Clovis I.
On March 25, 1992, Clovis filed two motions to dismiss the charges against him. The ground for one motion was the State’s alleged failure to commence the prosecution within the two-year statute of limitations, K.S.A. 1992 Supp. 21-3106(4). The ground for the other motion was the State’s alleged failure to bring Clovis to trial within 180 days of arraignment as required by K.S.A. 22-3402(2). At a hearing on March 30, 1992, the district court took the motions under advisement.
On March 31, April 1, and April 2, 1992, the case was tried to a jury, and on April 2, 1992, Clovis was found guilty of Counts I, II, and III. The jury found him not guilty of possession of cocaine.
On May 4, 1992, the district court convened a hearing for “motions and/or for sentencing as appropriate.” Approximately an hour before the hearing began, the State provided to the district court its response to the motions to dismiss which had been filed by Clovis six days before trial. The district court concluded that due to the charges in Counts I and III being “barred by the speedy trial statute,” it had “no jurisdiction to have tried those cases then, and ordering their dismissal, order[ed] that the verdicts of the jury in this case be set aside and held, that the defendant is discharged not by acquittal but by dismissal with prejudice on Counts I, II, and III ... .”
The current appeal (Clovis II) stems from the district court’s post-trial dismissal of Counts I, II, and III of the 1991 complaint. The district court’s Journal Entry was file stamped August 17, 1992. It states in pertinent part:
“1. That the defendant’s Motion to Dismiss as it relates to Counts I and III of the Complaint/Information is granted. The Court specifically finds that there has been an absence of a showing of necessity, and that the State cannot avoid the time limitations of K.S.A. '22-3402.
"2. That the defendant’s motion as it relates to Count II is granted. The Court specifically finds that in addition to the above and foregoing findings, Count II is barred by the fact that it could have been filed at the time of the original complaint, and that substantial prejudice exists to the defendant by the late filing.
“3. The Court further finds that it has inherent jurisdiction to consider the dismissal of charges which are not prosecuted in good faith by the State of Kansas.
“4. That the Court further sets aside the jury verdicts as they relate to Counts I, II and III, and the defendant is hereby discharged.”
On appeal, the State contends the district court erred in setting aside the jury’s verdicts and dismissing Counts I, II, and III of the 1991 complaint against Clovis.
As reflected by the journal entry, the district court’s dismissal of Counts I and III was based upon a violation of the defendant’s statutory right to a speedy trial. K.S.A. 22-3402(2) requires that the State bring any defendant who is subject to an appearance bond to trial within 180 days after arraignment. Clovis was arraigned on the 1991 complaint on January 3, 1992. The trial was conducted on March 31, April 1, and April 2, 1992. Disregarding any delays which may have extended the 180-day limit, the number of days which elapsed between Clovis’ arraignment on January 3 and his being brought to trial on March 31, 1992, is 87.
Clovis argues, however, that the calculation of days after arraignment must include the number of days which elapsed after his arraignment on the 1989 complaint in addition to the number of days which elapsed after his arraignment on the 1991 complaint. According to Clovis, arraignment on the 1989 complaint occurred on May 24, 1989. The parties agree that the 1989 complaint was dismissed by the prosecution on November 13, 1989. The district court judge calculated that 172 days, which counted toward the permitted 180 days, elapsed before the complaint was dismissed. Clovis concedes that 28 of the days following arraignment on the 1991 complaint are attributable to his request for a continuance. Thus, he argues that 231 days, which are attributable to the State, elapsed before he was brought to trial. (87 - 28 = 59 + 172 = 231.)
Clovis relies on State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979). In particular, he quotes the following: “Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute.”
The State quotes State v. Jamison, 248 Kan. 302, 304, 806 P.2d 972 (1991): “However, if the first case is dismissed with a showing of necessity, computation of the statutory period commences anew upon arraignment in the refiled second case.” The State contends that the necessity in the present case stems from the rule that “the State may not appeal the dismissal in a criminal case of some of the counts of a multi-count complaint while the remainder of the counts remain pending in the district court and have not been finally resolved.”
As authority for the rule, the State cites State v. Bickford, 234 Kan. 507, 510-11, 672 P.2d 607 (1983), and State v. Freeman, 234 Kan. 278, 282, 670 P.2d 1365 (1983). In Freeman, this court dismissed the appeal for lack of jurisdiction on the ground that
“there is no statutory authority for the State to appeal from die dismissal in a criminal case of some of the counts of a multiple-count complaint, information or indictment while the case remains pending before the district court on all or a portion of the remaining counts which have not been dismissed and which have not been finally resolved.” 234 Kan. at 282.
The court commented that “[t]he district court and the appellate courts cannot both have jurisdiction of a pending case at the same time.” 234 Kan. at 282. The same reasoning also resulted in the dismissal of the appeal in Bickford. 234 Kan. at 511.
In State v. Haislip, 234 Kan. 329, 673 P.2d 1094 (1983), an adequate showing of necessity was made by the State when newly discovered evidence implicated an additional suspect and necessitated extensive additional investigation. The pertinent syllabus paragraph states: “The- State, in dismissing and refiling identical charges in a criminal action, may avoid the statutory speedy trial limitations only if there is an adequate showing of necessity and there is no evidence tire State was attempting to manipulate the speedy trial requirement.” 234 Kan. 329, Syl. ¶ 1.
In State v. Ransom, 234 Kan. 322, 326-27, 673 P.2d 1101 (1983), cert. denied 469 U.S. 818 (1984), several important witnesses were unavailable at the time trial was scheduled, the district court refused to grant a continuance, and the prosecution promptly moved to dismiss without prejudice. The district court found
“that no prejudice would occur to the defendant if the matter was dismissed without prejudice; that technical problems in securing the appearance of witnesses had arisen; that these problems were neither the fault of the State nor of the defendant; that neither side was operating tactically to try to gain an advantage over the other; and that both parties had acted diligently.” 234 Kan. at 326.
This court stated: “While the [district court] judge did not specifically find that the State made a showing of necessity, such a finding is implicit in the record and in the findings made.” 234 Kan. at 327. The court concluded, therefore, that the Cuezze doctrine was inapplicable and the computation of the statutory time began anew when defendant was arraigned on the refiled complaint.
In State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), the State’s appeal from the district court’s order granting defendant a new trial was dismissed for lack of jurisdiction. Subsequently the district court discharged Grimes due to the State’s failure to comply with the statutory speedy trial requirements. On the State’s appeal from discharge of Grimes, one of the questions was whether the time the earlier appeal was pending should be counted in computing the 180 days. 229 Kan. at 148. This court concluded that “the 180-day period continued to run during the first appeal.” 229 Kan. at 149.
The issue which the State attempted to raise in its first appeal was the district court’s granting Grimes’ motion for a new trial. The first appeal was dismissed because the issue “was not one which needed to be resolved in order for the prosecution to proceed with trial and to prove its case. It was not hampered by suppressed evidence or the like.” 229 Kan. at 148. In stating its reasons for deciding that the time the first appeal was pending in this court should be counted in computing the 180 days, the court quoted the following:
“ ‘What prevented the prosecution from proceeding to try the defendant again? There was no obstacle which prevented it; the only thing which may explain the delay is that such retrial would have been effort wasted if the State’s appeal had been successful. But in the face of the peremptory commands of the Bill of Rights and [the speedy trial statute], considerations of expediency can have no weight.’ ” 229 Kan. at 149 (quoting State v. Hess, 180 Kan. 472, 477, 304 P.2d 474 [1956]).
Neither party has cited a case which is directly on point. As the State points out, Freeman stands for the proposition that the prosecution may not appeal partial dismissal of a complaint while other counts remain pending in the district court. Thus, clearly it is necessary for the State to dismiss the pending charges in order to appeal. However, it is not necessary for the State to appeal the dismissed counts in order to prosecute the defendant on the remaining counts.
If the State could have prosecuted the remaining counts, appealed or cross-appealed the partial dismissal after termination of the case, and then have refiled and prosecuted the dismissed counts in the event of a successful appeal, it would not have been necessary to dismiss the remaining charges and pursue the Clovis I appeal. Here, the 180 days continue to run on the two counts which were dismissed. If the State chooses to proceed with the trial on the remaining counts, its right to appeal and, if successful, to refile and prosecute the defendant on the two dismissed counts is dependent upon whether the initial jury trial is completed before the 180 days run. To force the State to malee such a choice is not acceptable. It would violate the State’s statutory right to appeal thé trial court’s dismissal of criminal charges.
The State’s dismissal of charges 172 days after arraignment raises a question whether the State was attempting to manipulate the speedy trial requirements. In State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 (1989), the court stated: “Dismissals and re-filings when the statutory period is about to expire are suspect and a showing of necessity must be made.”
In Cuezze, this court found reason to “utilize the extraordinary remedy of tacking together the times involved in [separate] cases.” Goss, 245 Kan. at 192. Here is this court’s summary of the circumstances which provided the reason:
“In State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979), two of the defendants were arraigned in the first case and shortly before the statutory speedy trial period would have expired, these charges were dismissed and a virtually identical complaint was filed. We held that the State cannot dismiss and refile charges solely to set the statutory clock back to zero. To hold otherwise, we reasoned, would defeat the purpose of the statute.” 245 Kan. at 192.
The 90-day provision of K.S.A. 22-3402 applied to Goss, who was held in jail on a first-degree murder charge. He was arrested on September 22, 1986, on a charge of second-degree murder. Several days later the complaint was amended to charge felony murder. At the beginning of November he was bound over on the amended complaint. Arraignment was continued at Goss’ request. On November 25, tire complaint was amended to charge premeditated murder. A separate case was filed against Goss on December 22, and, without his being arraigned on the charges in the first case, it was dismissed on January 5, 1987. 245 Kan. at 191-92. On appeal from his conviction of first-degree murder in the second case (filed December 22), this court rejected Goss’ claims of speedy trial violation. The court stated:
“In order to exceed the 90-day limit, one would have to tack on a major portion of the time defendant was being held in the prior case. We have tacked on such time only under exceptional circumstances where it is obvious that a dismissal and refiling was clearly a subterfuge engaged in by the State to avoid dismissal under the speedy trial statute.” 245 Kan. at 192.
The court concluded that Goss’ claims were groundless because the 90-day period had not begun to run in the first, unarraigned case and because, although the “State had considerable difficulty in deciding on what charges it desired to proceed, . . . the element of subterfuge to avoid the statute is wholly lacking herein.” 245 Kan. at 192.
Although in the present case the district court’s remarks at the time it dismissed the complaint reflect that the district court considered the State’s action to have been taken in bad faith, it did not find, nor would the record support a finding, that the State’s dismissing and refiling the charges was a subterfuge to deny the defendant a right to a speedy trial. We conclude there is an adequate showing of necessity for dismissing and refiling the charges against the defendant. The defendant’s speedy trial rights under K.S.A. 22-3402(2) were not violated.
With regard to Count II, possession of marijuana, the journal entry states: “Count II is barred by the fact that it could have been filed at the time of the original complaint, and that substantial prejudice exists to the defendant by the late filing.”
K.S.A. 21-3108(2)(a) provides in pertinent part:
“A prosecution is barred if the defendant was formerly prosecuted for a different crime ... if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint . . . filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution . . . .”
The double jeopardy prohibition of 21-3108(2)(a) was discussed in State v. Mahlandt, 231 Kan. 665, 647 P.2d 1307 (1982), and in In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979). The appellate courts agreed that
“three elements must be present under 21-3108(2)(a) to bar a subsequent prosecution. First, the prior prosecution must have resulted in a conviction or acquittal, second, evidence of the present crime must have been introduced in the prior prosecution, and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case.” 231 Kan. at 668 (citing 3 Kan. App. 2d at 743).
The record in the present case does not contain a copy of the 1989 complaint; it is impossible to evaluate the factors and determine whether the evidence of the present crime must have been introduced in the prior prosecution. Nor from the record before us can this court analyze the counts contained in the original complaint to determine whether the statutory speedy trial requirements were met as to Count II. The State has failed to designate a record sufficient for the court to determine if the district court’s dismissal of Count II was error.
The judgment of the district court in dismissing Count II is affirmed, the judgment dismissing Counts I and III is reversed, and the case is remanded with directions to reinstate the jury verdict as to Counts I and III. | [
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The opinion of the court was delivered by
Davis, J.:
The defendant, Aaron Pennington, appeals from his convictions of first-degree murder and aggravated burglary. He contends that the trial court erred (1) by admitting evidence of an experimental shooting test; (2) by failing to instruct the jury that it must not draw inferences from the defendant’s failure to testify; (3) by instructing the jury on aiding and abetting; and (4) by failing to give the cautionary jury instruction on the testimony of a paid informant. Finding no reversible error, we affirm.
On July 20, 1991, David Brown discovered his mother’s body in her bed when he stopped by her home to check on her. Laura Brown had been shot three times in the head with a .22 caliber weapon. The police discovered a pillow from the living room couch in a chair next to the front door. The pillow had bullet holes in it, and police surmised the killer had used it to muffle the sound of the shots. There were no signs of forced entry, and nothing of value had been taken from the house, although the victim’s purse had been emptied onto the bed beside her body.
The defendant was a friend of Mrs. Brown’s other son, Paul Brown. A few months before the murder, the defendant had spent several nights in Mrs. Brown’s garage without her knowledge. When she discovered the defendant’s presence, she required the defendant to leave. One of the defendant’s friends testified that the defendant was not happy about being asked to leave.
On the night of the murder, the defendant threw a party at Motel 6 in Lenexa. He paid for the room and much of the liquor. Such generosity was uncharacteristic of the defendant. He had been unemployed and homeless for several months before the homicide.
During the party, the defendant obtained a ride from two people at the party to a Quik Trip store located about two and one-half blocks from Mrs. Brown’s home. On the way to the Quik Trip he changed from his tennis shoes into work boots and put on surgical gloves. He told the others in the car that he would call them at Motel 6 to pick him up. He called later for a ride back to the motel. The defendant told the party guests that if anyone asked where he was, they were to say he was with them all night at Motel 6.
The defendant left his work boots in the trunk of the car in which he had ridden to the Quik Trip. The car owner saw a handgun inside one of the defendant’s boots and told the defendant to get the gun out of his car. The defendant refused at first. A few days later the defendant got his gun out of his friend’s car and threw it over a bridge into the Kansas River. A passenger in the car in which the defendant rode to the bridge testified that the gun that the defendant disposed of held nine rounds, rather than the standard six rounds.
Paul Brown owned a .22 caliber handgun with a nine-round chamber. Brown first told police that he did not own a gun. He later admitted owning a gun, but told the police that it had been stolen the week leading up to the homicide. Although Brown told police that he spent the entire night of the homicide with a friend, two neighbors testified that they saw Brown’s van in front of his mother’s house at 3:00 a.m. and 4:30 a.m. during the night of the murder.
(1) Experimental Test
The defendant claims that the testimony of a neighbor three houses east of the victim’s home established that the fatal shots were fired at 3:30 a.m. He claims that other witnesses established that he was back at Motel 6, nowhere near the victim’s home, at 3:30 a.m. The testimony of the neighbor depended upon his ability to hear the shots at 3:30 a.m. Over the defendant’s objection, the State was allowed to introduce evidence of an experimental test conducted several months after the shooting. Three shots were fired under what the State claims were similar conditions, and the neighbor was unable to hear the shots fired.
The defendant argues that the conditions were not substantially similar to the conditions at the time of the homicide and that evidence of the experimental test was inadmissible. The parties do not disagree on the law but argue about its application to the facts of this case.
The admissibility of scientific or experimental tests lies within the sound discretion of the trial court. As we said in State v. Jones, 202 Kan. 31, 42, 446 P.2d 851 (1968), “It is well established that scientific experiments may be shown in evidence as well as the testimony of experts in support thereof (K.S.A. 60-456; 29 Am. Jur. 2d, Evidence §§ 818, 819, 822, 824, pp. 908-912).” We acknowledged in Jones that “evidence of an occurrence entirely disconnected with the one involved which tends to illustrate a physical fact, where the conditions are the same or similar, is relevant and admissible because the observed uniformity of nature raises an inference that like cause will produce like results.” 202 Kan. at 42.
The key to admissibility is relevance. As noted in our most recent decision of Hurlbut v. Conoco, Inc., 253 Kan. 515, 537, 856 P.2d 1313 (1993), “[T]he question of admissibility of scientific or experimental tests is one of relevance; viz., does the experiment have any tendency to prove or disprove a consequential fact?” See 22 Wright & Graham, Federal Practice and Procedure, Evidence § 5171 (1978). The State argues that the experiment was relevant to impeach the defendant’s theory. The defendant objects based upon his contention that the conditions are not the same or similar, making the evidence irrelevant.
In Hurlbut, we said that “[t]he admission of evidence of experiments must be established by showing background proof that the experiments were conducted under conditions that were at least similar to those which existed at the time of the incident in question.” 253 Kan. 515, Syl. ¶ 10. We cited an earlier case of Spraker v. Lankin, 218 Kan. 609, 545 P.2d 352 (1976), where there was a challenge to the admission of accident reconstruction evidence. We said in Spraker that the following differences went to, the weight of the testimony rather than its competency:
“Some of the obvious differences [between the test vehicles and test conditions and collision circumstances] are the grade at the accident scene and the level test site; the different makes,, sizes, weights, types and construction of the motorcycles; the types of brakes; the types of tires; and the surface areas of the portions of the various vehicles which came in contact with the surface of the highway.” 218 Kan. at 614.
As noted in Hurlbut, “The Spraker court concluded that such differences go to the weight of the testimony rather than its competency [citation omitted]. The court stated the differences should be recognized and may be explained by the expert. 218 Kan. at 614.” 253 Kan. at 537.
In Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 (1979), the plaintiffs contended that the court erred in refusing to permit them to conduct an in-court experiment to establish whether the hydraulic reservoir, a component of the steering system, would retain fluid when turned upside down. The defendant had objected to the experiment because there was no offer of proof that the conditions involved in the proposed experiment would be similar to the conditions which were present at the time of the accident. We said: “The relevance of demonstrations or tests to be performed in the presence of the jury rests in the sound discretion of the trial court and its decision on the matter will not be reversed on appeal unless an abuse of discretion is apparent.” 225 Kan. at 317.
The defendant argues in this case that the following differences between the test conditions and the homicide conditions justified exclusion of the test evidence absent some reasonable explanation of the effects of the differences: There were windows in Mrs. Brown’s house that were closed during the test that were open when the body was found; the volume of the neighbor’s television could not rationally be evaluated; it was not clear that precisely the same type of ammunition was used during the test as during the homicide; because the murder weapon was not discovered, the same weapon was not used in the test as in the homicide; it could not be determined that the gun barrel was pushed into the pillow to the same depth during the test and the homicide; the outside temperatures were colder during the test than during the homicide; and the shots were fired into two telephone books placed on top of a wooden chair rather than a human head on a bed.
The State argues that the test conditions nevertheless were substantially similar to the conditions at the homicide. The test was conducted in the early morning hours; when Mrs. Brown’s body was found, the south window in her bedroom was open to the same degree it was open during the test. Although the officer did not open the other windows that were open when the body was found, he testified that those windows faced west, and the neighbor’s house was east of the victim’s house. Accordingly, he did not believe the difference was significant. The test shots were fired through a pillow identical to that found at the scene in a location substantially the same as the body’s location. A .22 caliber handgun was used in the test and the homicide. The neighbor was located in the same location in his home during the test as he was during the homicide.
The State also notes that other differences might increase the likelihood that the neighbor could hear the shots during the test. The air conditioner was turned off during the test firing; the neighbor was awake during the test, but awakened from sleep by the sounds he heard the night of the murder.
The law does not require that all conditions be replicated in a test such as this one. It appears that the State made every effort to find and use a weapon that police had reason to believe was substantially similar to the murder weapon. It was not possible to replicate outside temperature without waiting several months for summer to arrive. Although defendant claims the television volume could not rationally be evaluated, the neighbor candidly admitted the volume was “about the same” as it was on the night of the murder. Although shots were fired into telephone books instead of a human head, we do not believe that defendant expected the police to use a human head for the test.
The test evidence was relevant because it had a tendency to prove or disprove a consequential fact — whether the neighbor heard the fatal shots. The admissibility of this relevant evidence rests in the sound discretion of the trial court. Although we recognize that there were some differences in the conditions, the defendant has not demonstrated that the conditions were so dissimilar that admission would amount to an abuse of discretion. In fact, conditions during the test were substantially similar to the conditions on the night of the homicide.
(2) Jury Instruction: Must or Should?
The defendant next claims that the tidal court erred in failing to instruct the jury that it must not draw inferences from the defendant’s failure to testify. The court instructed the jury in accordance with PIK Crim. 3d 52.13: “You should not consider the fact that the defendant did not testify in arriving at your verdict.” The defendant requested that “should” be replaced by “must”; the trial court declined the requested modification.
In support of his contention that the trial court’s failure to give the requested instruction was reversible error, the defendant cites Bruno v. United States, 308 U.S. 287, 84 L. Ed. 257, 60 S. Ct. 198 (1939), for the proposition that a defendant has a right to have the jury instructed that it must not consider a defendant’s failure to testify. Bruno does not dictate such a result. In Bruno, the defendant had requested the following instruction:
“ 'The failure of any defendant to take the witness stand and testify in his own behalf, does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner.’ ” 308 U.S. at 292.
The Supreme Court concluded that the “topic on which Bruno proffered an instruction had not been charged at all.” 308 U.S. at 292. Unlike in our case, no instruction on this subject was given in Bruno. Under these circumstances, the Court held that “the substance of the denied request should have been granted, and the judgment therefore is reversed.” 308 U.S. at 294. Bruno does not require the mandatory “shall” language, but did require that the substance of the defendant’s requested instruction should have been given.
This same question has been recently addressed by this court in State v. Owens, 248 Kan. 273, 807 P.2d 101 (1991). In Owens, we found “no prejudicial error with the use of ‘should not’ under PIK Crim. 3d 52.13 rather than ‘must not’ in an instruction informing the jury not to consider the fact that defendant did not testify." 248 Kan. 273, Syl. ¶ 8. We adhere to our decision in Owens and conclude that the failure to give the instruction requested by the defendant did not constitute prejudicial error.
In Owens, the defendant did not raise a specific objection and we were applying the standard of whether the failure to give the instruction was clearly erroneous. Here, the defendant specifically requested the use of the word must instead of should. Our conclusion in Owens that the failure to give the instruction did not' amount to prejudicial error stands. Yet, we are of the opinion that a better practice would be to give an instruction containing the word must instead of should. While both give sufficient di rection, as we noted in Owens, 248 Kan. at 284, “should is not as strong as must”, and we believe the stronger term is more appropriate and constitutes the better practice. We would also note that PIK Crim. 3d 51.02 provides in part: “You should decide the case by applying these instructions to the facts as you find them.” While use of “should” provides sufficient direction, we believe the stronger term “must” also would be a better practice under PIK Crim. 3d 51.02.
We hold that PIK Crim. 3d 52.13 provides sufficient direction for the jury in its consideration of the defendant’s failure to testify, that it “properly and fairly state[s] the law as applied to the facts in the case,” and that the jury could not reasonably have been misled by the instructions. State v. Norris, 244 Kan. 22, 23, 765 P.2d 1120 (1988). We further hold that the better practice would be for the trial judge in the context of this instruction to use the stronger term “must” instead of the term “should.” However, we conclude that no prejudicial error occurred in the failure to give the instruction requested by the defendant.
(3) Aiding and Abetting Instruction
The defendant’s third allegation of error is that the trial court violated his right to due process of law by instructing the jury on aiding and abetting. The defendant contends that the State did not charge him with aiding and abetting and presented insufficient evidence of aiding and abetting to justify giving the instruction. The defendant objected at trial to the aiding and abetting instruction.
We have held that the State need not charge aiding and abetting in the charging document in order to pursue an aiding and abetting theory at trial. See, e.g., State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976); State v. Motor, 220 Kan. 99, 102, 551 P.2d 783 (1976). If, from the totality of the evidence, a jury reasonably could conclude that the defendant aided and abetted another in the commission of the crime, then it is appropriate to instruct the jury on aiding and abetting. State v. Clemons, 251 Kan. 473, 486, 836 P.2d 1147 (1992).
The defendant argues also that it was the State’s theory that Paul Brown paid the defendant to kill Mrs. Brown and that the defendant was the one who actually committed the killing. The same was true in Clemons, and we held that such conditions do not preclude the giving of an aiding and abetting instruction. In Clemons, 251 Kan. at 485-86, the State’s theory was that Clemons pulled the trigger, and the prosecuting attorney even attempted during closing argument to refute the possibility that anyone else did the actual shooting. We held that the aiding and abetting instruction was appropriate even though the State’s theory was that the defendant actually committed the killing because when the evidence was viewed as a whole, a jury reasonably could have concluded that Clemons aided and abetted another. The same finding applies here.
There was evidence from which the jury reasonably could have found that the defendant and Paul Brown were at the Brown residence at the same time. One witness testified that the defendant had not returned to the Motel 6 party by 3:00 or 3:30 a.m., and Paul Brown’s van was seen in front of the victim’s house around 3:00 a.m. The defendant- and Paul Brown were seen together on the afternoon of the murder. Paul Brown and the defendant both had attempted to establish alibis for the night of the murder. Paul Brown owned a .22 caliber handgun, and the victim died of wounds from a .22 caliber weapon. Paul Brown first denied owning any gun and later admitted he had owned one, but told police it had been stolen. After the homicide, the defendant was seen with a weapon similar to the one Paul Brown owned, and the defendant threw it into the river soon after the murder. There was evidence from a which a jury reasonably could find that the defendant actually committed the murder or that he aided and abetted Paul Brown in the commission of the murder. The trial court did not err in instructing the jury on aiding and abetting.
(4) Cautionary Instruction
The defendant claims the trial court erred by failing to instruct on testimony of a paid informant. He did not request the instruction at trial. When a party complains on appeal that an instruction was not given, but the party did not request the instruction at trial, we will reverse only if the failure to give the instruction was clearly erroneous. State v. Perkins, 248 Kan. 760, Syl. ¶ 8, 811 P.2d 1142 (1991). “The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would.have returned a different verdict.” Perkins, 248 Kan. 761, Syl. ¶ 8.
The testimony at issue is that of Brian Ramey, who shared a jail cell with the defendant. We note first that Ramey did not receive anything in exchange for his testimony but testified that he came forward out of disgust for what the defendant had told him. He therefore was not a paid informant. This fact undermines the defendant’s claim of error. However, the defendant asks us to apply the rule requiring the paid informant instruction by way of analogy, apparently because the witness is testifying for the State. Although this fact is insufficient to raise the paid informant analogy, we think it appropriate to demonstrate that the defendant’s contention is without merit.
The defendant told Ramey that he had shot the victim three times in the head with a .22 caliber gun, that he placed a pillow over her head, and that he was to be paid $500 for killing her. He told Ramey that he had been dropped off at the scene and was gone for about one-half hour. He told Ramey that he wiped the gun clean and threw it into the river.
The defendant argues that the case of State v. Fuller, 15 Kan. App. 2d 34, 802 P.2d 599 (1990), rev. denied 248 Kan. 997 (1991), should apply. In Fuller, the Court of Appeals held that it is an error for a trial court to refuse to give the “paid informant” instruction (PIK Crim. 3d 52.18-A) when the defendant requests such an instruction, where the informant’s testimony is wholly uncoiToborated, and when the informant’s testimony provides the sole basis for the defendant’s conviction. 15 Kan. App. 2d 34, Syl. ¶ 4. Here, the defendant did not request a paid informant instruction, the informant’s testimony was substantially corroborated, and the informant’s testimony was not the sole basis for the defendant’s conviction. Fuller does not apply, but even if we were to apply Fuller, the defendant would not benefit. Suffice it to say, the witness was not a paid informant, and the trial court did not err by refusing to give a paid informant instruction.
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The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment action to determine if the Kansas Insurance Guaranty Association (KIGA) is entitled to recover $300,000 it had previously paid the Kansas Department of Health and Environment (KDHE). The district court entered summary judgment in favor of KIGA. KDHE appeals therefrom.
There is no contention that (1) a declaratory judgment action is an inappropriate vehicle for the resolution of the controversy between the parties or (2) the case was not ripe for the entry of summary judgment. KDHE contends summary judgment should have been entered in its favor rather than in favor of KIGA.
The undisputed facts may be summarized as follows. As a condition of engaging in the business of surface mining coal from a 312-acre tract located near Ft. Scott, Bill’s Coal Company, Inc., (Bill’s Coal) was required to have a reclamation permit issued by KDHE’s predecessor, the Mined-Land Conservation and Reclamation Board (Mined-Land Board). As a condition for the issuance of the permit (No. BB-T-HR-204), Bill’s Coal was required to obtain a $1,500,000 surety bond to guarantee performance of the reclamation obligations placed upon Bill’s Coal by the permit. Bill’s Coal secured the surety bond from Allied Fidelity Insurance Company (Allied Fidelity) on September 28, 1984 (Bond No. 078562). The Treasurer of the State of Kansas was the sole obligee upon default. Allied Fidelity, as a condition of issuing the bond, required Bill’s Coal to obtain an $805,000 irrevocable letter of credit from Continental Illinois National Bank and Trust Company of Chicago (Continental), with Allied Fidelity being the named beneficiary (Letter of Credit No. 6359793).
The dominos started falling on December 10, 1985, when Bill’s Coal filed for bankruptcy. The Mined-Land Board conducted an administrative hearing and, on June 23, 1986, forfeited the reclamation permit and surety bond of Bill’s Coal. No appeal was taken from that order.
Demand was made upon Allied Fidelity to pay the $1,500,000. Allied Fidelity then made demand upon Continental for $805,000 under its letter of credit. Continental issued a draft in said amount on July 8, 1986. On July 15, 1986, by order issued by an Indiana circuit court, insurance liquidation was ordered against Allied Fidelity.
Under Letter of Credit No. 6359793, the conditions on Allied Fidelity drawing the $805,000 were that Allied Fidelity hold the money separately and use it only to satisfy liabilities under Bond No. 078562. Letter of Credit No. 6359793 states:
“2) Any funds drawn under this Letter of Credit shall be held apart by you for the express purpose of reimbursing any incurred liabilities of the aforementioned bond(s) or undertaking(s).
“3) Should funds drawn not be used by you for the satisfaction of or reimbursement of any loss, cost, claim for expense of any nature whatsoever incurred by you, (including unpaid premiums), on any such bond(s) or undertaking(s) as aforesaid, such amount shall be returned directly to Continental Illinois National Bank and Trust Company of Chicago, Chicago, Illinois, quoting: (a) Letter of Credit # 6359793 and (b) Bill’s Coal Company, Inc., as the account party.”
After much litigation, the draft was paid. The proceeds were segregated and held apart in accordance with the terms of the letter of credit.
Meanwhile, KDHE filed a claim with KIGA. In November 1987, KIGA paid the statutory maximum of $300,000 to KDHE. KIGA and KDHE agreed to settle the Allied Fidelity claim for $1,150,000. Allied Fidelity paid out $977,657.75 ($805,000 principal plus interest). KIGA and KDHE agreed that said proceeds should be placed in escrow until a judicial determination could be made as to whether KIGA was entitled to recovery of the $300,000 from said proceeds.
This action was duly commenced to make that determination. The facts were essentially undisputed. KDHE and KIGA each sought the entry of summary judgment in its favor. The district court held in favor of KIGA, and KDHE appeals therefrom.
Since July 1, 1988, KDHE has had the task of administering the Mined-Land Conservation and Reclamation Act (K.S.A. 49-401 et seq.) Under the Act, KDHE has jurisdiction and authority to regulate the reclamation of lands affected by surface mining operations in order to encourage the productive use of such lands (K.S.A. 1993 Supp. 49-402a[a]). The permit issued to Bill’s Coal under the Act required a $1,500,000 surety bond. The bond was forfeited in 1986. KDHE’s claim under the forfeited bond was $1,500,000. There is no contention that KDHE’s damage or loss is less than the full amount of the bond. All funds received by KDHE as a result of the bond forfeiture will be used by it to reclaim the lands involved in the surface mining operation of Bill’s Coal.
The insolvency of the insurance company issuing the bond (Allied Fidelity) brought the Kansas Insurance Guaranty Association Act (K.S.A. 40-2901 et seq.) onto the scene. The Act is administered by KIGA (K.S.A. 40-2904). The purpose of the Act is stated in K.S.A. 40-2901 to be as follows:
“The purpose of this act is to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers. This act shall be liberally construed to effect such purpose which shall constitute an aid and guide to interpretation."
Upon a determination of insolvency, K.S.A. 40-2906 provides KIGA shall:
“(1) Be obligated to the extent of the covered claims existing prior to the determination of insolvency and arising within thirty (30) days after the determination of insolvency, or before the policy expiration date if less than thirty (30) days after the determination, or before the insured replaces the policy or causes its cancellation, if such insured does so within thirty (30) days of the determination, but such obligation shall include only that amount of each covered claim which is more than one hundred dollars ($100) and less than three hundred thousand dollars ($300,000), except that the association shall pay the full amount of any covered claim arising out of a workmen’s compensation policy. In no event shall the association be obligated to the policyholder or claimant in an amount in excess of the face amount of the policy from which the claim arises.
"(2) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations.of the insolvent insurer as if the insurer had not become insolvent."
K.S.A. 40-2903(c) defines “covered claim” as follows:
“ ‘Covered claim’ means an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this act applies issued by an insurer, if such insurer becomes an insolvent insurer after the effective date of this act and (1) the claimant or insured is a resident of this state at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state. ‘Covered claim’ shall not include any amount due any reinsurer, insurer, insurance pool or underwriting association, as subrogation recoveries or otherwise."
The district court’s rationale for entering summary judgment in favor of KIGA is stated as follows:
“K.S.A. 40-2906 provides that KIGA is ‘obligated to the extent of the covered claims existing prior to the determination of insolvency.’ Since the amount of the bond was more than $300,000.00, the covered claim was $300,000.00 and the Act did not afford the plaintiff protection for any amount greater than $300,000.00 in the event of the insolvency of Allied. The protection is the same whether the bond is $300,000.00 or $1,500,000.00. Stated another way, where the^ bond and the claim exceed $300,000.00, only the first $300,000,00 is protected by the Act, all of which was paid when the Allied insolvency estate paid the plaintiff $805,000.00 plus interest."
KIGA contends that the district court was correct in this determination. We do not agree.
KIGA’s maximum liability is $300,000. KIGA agrees that KDHE had a claim against Allied Fidelity for $1,500,000. It concedes that if the letter of credit páyment of $805,000 had been received by KDHE prior to resolution of KDHE’s claim under KIGA, then KIGA would have paid the $300,000 and would not now be seeking the return of the money. Its rationale is that the claim against the insolvent insurance company would have been reduced to $695,000, of which the first $300,000 would have been a covered claim. KIGA then contends that inasmuch as KIGA paid $300,000 on a claim of $1,500,000, representing the first $300,000 of the claim, K.S.A. 40-2906 mandates the return to KIGA of its $300,000 upon receipt by KDHE of the $805,000.
In Hetzel v. Clarkin, 244 Kan. 698, Syl. ¶ 1, 772 P.2d 800 (1989), we discussed the Kansas Insurance Guaranty Association Act and held:
“The stated purpose of the Kansas Insurance Guaranty Association Act, K.S.A. 40-2901 et seq., is to avoid financial loss to claimants and policyholders because of the insolvency of insurance companies. The Kansas Insurance Guaranty Association Act was designed to put claimants and policyholders in the same position in which they would have been had the policyholders’ insurance company remained solvent."
As Hetzel involved a claim of less than $300,000, it was unnecessary to add a caveat “subject, however, to the statutory maximum payout of $300,000.” It is undisputed that KDHE had a “covered claim” of $1,500,000 against Allied Fidelity. Given the purposes of the Act, it would be illogical to conclude that where, as here, all payments from all sources are less than the amount of the claim against the insolvent insurer, KIGA is relieved of responsibility under the Act. Such would not be the liberal construction of the Act mandated by K.S.A. 40-2901 to avoid financial loss to claimants. A partial payment of a claim by an insolvent insurer should not alter KIGA’s liability where the aggregate of the insurer’s partial payment of the claim and KIGA’s maximum statutory liability still leaves the claimant with a shortfall on its claim. KIGA was fully aware of the letter of credit prior to making its $300,000 payment to KDHE. Payment by KIGA of the $300,000 prior to receipt of the letter of credit proceeds should not, under the circumstances herein, relieve KIGA of its statutory liability to the claimant injured by the insurance company’s insolvency.
As an alternative argument, KIGA contends that K.S.A. 40-2910(a) gives it a right to recover $300,000 from the funds received from Allied Fidelity. K.S.A. 40-2910(a) provides:
“Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy."
The statute is clearly inapplicable. The letter of credit required by Allied Fidelity for issuance of its surety bond is not “an insurance policy other than a policy of an insolvent insurer.” Additionally, as held in Hetzel v. Clarkin, 244 Kan. 698, Syl. ¶ 2:
“K.S.A. 40-2910, the nonduplication provision of the Kansas Insurance Guaranty Association Act, was adopted to avoid windfall recoveries."
There is no windfall recovery herein as the aggregate of all payments received on the claim is less than the amount of the claim.
Over 40 states including Kansas have adopted insurance guaranty acts substantially similar to the National Association of Insurance Commissioners Model Bill. See 19A Appleman, Insurance Law and Practice § 10801, p. 365 n.2 (1982). Although the Kansas Act is infrequently before Kansas appellate courts, similar acts have been litigated in sister states. Liberal construction has been applied to these acts in various factual contexts to prevent or reduce losses to claimants of insolvent insurance companies. See Property & Cas. Ins. Guar. F. v. Herder, 156 Ariz. 203, 751 P.2d 519 (1988); Connecticut Ins. Guaranty Assn. v. Union Carbide Corporation, 217 Conn. 371, 585 A.2d 1216 (1991); Aztec v. Prop. & Cas. Guar. Ass'n, 115 N.M. 475, 853 P.2d 726 (1993); and WIGA v. McKinstry Company, 56 Wash. App. 545, 784 P.2d 190 cert. denied 114 Wash. 2d 1017 (1990).
The judgment is reversed and the case is remanded for entry of judgment in favor of the Kansas Department of Health and Environment. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal from an order of a district court upholding the action of the Kansas State Board of Pharmacy (the Board) in refusing to permit Ashok K. Gumbhir either to take the examination for registration as a pharmacist or to be admitted by reciprocity. The claim of Mr. Gumbhir is that a certain provision in the pharmacist registration statute, K.S.A. 1979 Supp. 65-1631, is constitutionally impermissible. The Board interprets the statute so as to permit no one to take the examination for registration as a pharmacist or to be admitted by reciprocity if such person does not have an undergraduate degree from a school in the United States accredited by the American Council on Pharmaceutical Education (ACOPE). ACOPE is a nongovernmental agency organized exclusively for educational and other nonprofit purposes. This nongovernmental agency attempts to approve and accredit only schools of pharmacy located in the United States. No pharmacist who has obtained his or her undergraduate degree from a school outside the United States can hope to become a registered pharmacist in the State of Kansas under the Board’s interpretation of this statute.
The facts leading to the present appeal were stipulated by the parties. Mr. Gumbhir manages and is part owner of a pharmacy in Overland Park, Johnson County, Kansas. He is a citizen of the United States and a resident of the State of Missouri. He graduated and received a bachelor’s degree in pharmacy from Punjab University in Chandrigarh, India, in 1960.
The plaintiff on coming to the United States graduated and received a master of science degree in pharmacy from the University of Minnesota in 1968. The undergraduate pharmaceutical program of the University of Minnesota is, and was at all times relevant, accredited by ACOPE and is recognized and approved by the Board, but not its graduate program.
The plaintiff graduated and received a Ph.D. degree in pharmacy administration from Ohio State University in 1971. The undergraduate program of Ohio State University is and was at all times relevant accredited by ACOPE and recognized and approved by the Board, but not its graduate program. ACOPE does not approve any graduate programs.
The plaintiff was registered as a licensed pharmacist in the State of Ohio by examination in 1970, and presently holds a license to practice pharmacy in the State of Ohio. He was regis tered as a pharmacist in the State of Missouri by reciprocity in 1974, and holds a license to practice pharmacy in the State of Missouri.
The plaintiff applied for registration in the State of Kansas by examination, by submitting the required application and fee in accordance with K.S.A. 1979 Supp. 65-1631(&). The plaintiff also applied for registration in Kansas by reciprocity by submitting the required application and fee in accordance with K.S.A. 1979 Supp. 65-1631(d)(g) based on prior registrations in both Ohio and Missouri.
The Board denied both applications for registration on the basis the statute, K.S.A. 1979 Supp. 65-1631, requires every applicant in Kansas to be a graduate of a college accredited by ACOPE. ACOPE accredits only undergraduate schools in the United States. Punjab University is not in the United States. Plaintiff filed this action in the district court after all administrative remedies had been exhausted and all prerequisites to the jurisdiction of that court had been fulfilled.
The statute regulating the registration of pharmacists, K.S.A. 1979 Supp. 65-1631, in pertinent part provides:
“(a) It shall be unlawful for any person to practice as a pharmacist in this state, unless such person is registered by the board as a pharmacist. Every applicant for examination and registration as a pharmacist shall be of good moral character and temperate habits, a graduate of a school or college of pharmacy or department of a university accredited by the American council on pharmaceutical education and recognized and approved by the board, and shall file proof satisfactory to the board, substantiated by proper affidavits, of a minimum of one year of pharmaceutical experience, acceptable to the board, under the supervision of a registered pharmacist and shall pass an examination by the board. Pharmaceutical experience as required in this section shall be under the supervision of a registered pharmacist and shall be predominantly related to the dispensing of prescription medication, compounding prescriptions, preparing pharmaceutical preparations, and keeping records and making reports required under the state and federal statutes.” Emphasis supplied.
The portions of the statute which relate to applications for registration on both examination and on reciprocity require, as a condition precedent to taking the examination or to receiving registration by reciprocity, that the applicant have the required education prescribed in subsection (a), i.e., graduation from a school or pharmacy accredited by ACOPE.
The primary attack launched against the constitutionality of this statute is based upon the claim that 65-1631(a) of the Kansas Pharmacy Act constitutes an unlawful delegation of legislative authority to a nongovernmental agency, ACOPE, which delegation is impermissible under the Constitution of the State of Kansas.
Article 2, Section 1 of the Constitution of the State of Kansas provides:
“The legislative power of this state shall be vested in a house of representatives and senate.”
This constitutional provision prevents usurpation of legislative authority by other departments of government as well as by a nongovernmental agency or a private individual. The authority to make obligatory rules and provide penalties for breach of said rules belongs to the legislature. An unlawful delegation of legislative power is contrary to the public policy expressed in the Constitution. State v. Crawford, 104 Kan. 141, 177 Pac. 360, 2 A.L.R. 880 (1919).
The Crawford case dealt with a statute which provided that all electrical wiring shall be in accordance with the national electric code. The court found the code could be changed sporadically by the National Fire. Protective Association which met only occasionally, and even then might meet anywhere in North America. It was held the statute was constitutionally impermissible as amounting to an unlawful delegation of legislative power to the National Fire Protective Association, a nongovernmental association. The Crawford court stated:
“If the legislature desires to adopt a rule of the national electrical code as a law of this state, it should copy that rule and give it a title and an enacting clause and pass it through the senate and the house of representatives by a constitutional majority and give the governor a chance to approve or veto it, and then hand it over to the secretary of state for publication.” 104 Kan. at 144.
In Quality Oil Co. v. duPont & Co., 182 Kan. 488, 322 P.2d 731 (1958), the court dealt with a fair trade statute. The statute authorized a trademark owner and a retailer to agree upon a price for an article which was then to be binding between not only the parties agreeing but also any other persons who later were notified of said price. The court held this statute to be an unconstitutional delegation of legislative power, saying that the power to fix rates or prices upon all citizens is a legislative power and the legislature may not abdicate its function and delegate its legislative powers to others.
In State, ex rel., v. Mermis, 187 Kan. 611, 358 P.2d 936 (1961), it is pointed out that legislative authority in limited cases may be delegated to governmental agencies if, and only if, adequate guidelines are set out in the statute to clearly limit and define the conditions and the nature of the authority to be exercised. In Mermis a statute which delegated to the director of alcoholic beverage control the authority and discretion to set minimum prices of intoxicating liquors to be sold in Kansas, without providing guidelines, was held to be an unlawful delegation of legislative authority. The decision was based upon Crawford and Quality Oil.
The case of Poe v. Menghini, 339 F. Supp. 986 (D. Kan. 1972), dealt with delegation of authority to the Joint Commission on Accreditation of Hospitals so the commission might determine what hospitals could perform abortions. The opinion of Judge Theis contains some very appropriate language which bears upon our present case:
“This provision suffers from a second constitutional defect. The JCAH is a private, non-profit corporation with headquarters outside the State of Kansas. To this private concern the Kansas Legislature has delegated the power to promulgate standards binding on Kansas hospitals, at least if therapeutic abortions are to be performed in their facilities. In the event an unaccredited hospital, such as the Douglass Hospital, lend? its facilities to the performance of therapeutic abortions, it may be subject to criminal prosecution. Many years ago, the Kansas Supreme Court defined the following limitation on the legislative power:
“ ‘The legislature cannot delegate to private individuals and private associations the power to make obligatory rules concerning the management and care of property, nor can it provide that the breach of such rules shall be a penal offense. Kansas v. Crawford, 104 Kan. 141, 177 P. 360 (1919).’
"This rule is compatible with present federal constitutional law. Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1935). In this case, the Kansas Legislature has acted in apparent disregard of this constitutional limitation on their powers of delegation. And particularly since the result of this delegation has been the infringement of a fundamental right, the delegation violates the Due Process Clause of the Fourteenth Amendment.” 339 F. Supp. at 994, 995.
In State, ex rel., v. Gleason, 148 Kan. 1, 79 P.2d 911 (1938), a question was raised as to the constitutionality of a provision of the Osteopathic Practice Act of Kansas. The act provided that educational requirements for an osteopath applying for examination and registration should include graduation from an osteopathic school or college of good repute. The definition of such a college was contained in the statute and required it to be a college in which the requirements for graduation “shall be in no partic ular less than those prescribed by the American Osteopathic Association.” See G.S. 1935, 65-1202. The court in Gleason held there was no unlawful delegation of legislative authority. The standards of the American Osteopathic Association mentioned in the statute were merely used as a guideline or standard to be used by the state board and the delegation of authority was to the state board, not to the American Osteopathic Association.
In Sutherland v. Ferguson, 194 Kan, 35, 397 P.2d 335 (1964), the healing arts statute came under constitutional attack by the chiropractors who claimed it failed to lay down guidelines and standards. G.S. 1961 Supp. 65-2825 required the board to prepare and keep up to date a list of accredited healing arts schools. The accreditation was placed in the hands of the State Board of Healing Arts. There was no claim that the board abdicated its accreditation responsibilities to some other nongovernmental association or group. G.S. 1961 Supp. 65-2876 defined an accredited school of chiropractic to “be a legally incorporated school teaching chiropractic which the board shall determine to have a standard not below that of the national college of chiropractic of Chicago” and all such schools had to be approved first by the board before a graduate could take the examination. Again this court held there was no impermissible delegation of legislative power. The National College of Chiropractic of Chicago was merely used as a guide or standard to be followed by the state board.
The appellant, Mr. Gumbhir, cites additional cases from other states in which the courts have examined similar statutes. In those cases the legislatures have delegated some discretion and authority to state boards. The cases follow the general trend of the Kansas cases. Several cases rely on our early case of State v. Crawford, 104 Kan. 141. After reviewing these cases it appears the legislature may enact general provisions for regulation and grant to state agencies certain discretion in filling in the details, provided it fixes reasonable and definite standards to govern the exercise of such authority. State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 440, 296 P.2d 656 (1956); State ex rel. Schneider v. City of Topeka, 227 Kan. 115, 125, 605 P.2d 556 (1980).
However, a strict rule is applied when the delegation of authority to some outside, nongovernmental agency is attempted. The legislative power of this state is vested in the legislature and the legislature is prohibited from delegating legislative powers to nongovernmental associations or groups. State v. Crawford, 104 Kan. 141; see also Coffman v. State Bd. of Examiners, 331 Mich. 582, 50 N.W.2d 322 (1951); Murtha v. Monaghan, 7 Misc. 2d 568, 169 N.Y.S.2d 137, aff’d 5 App. Div. 2d 695, 169 N.Y.S.2d 1010 (1957); Gold v. S. C. Bd. of Chiropractic Exam., 271 S.C. 74, 245 S.E.2d 117 (1978).
The Board does not attempt to distinguish the cases relied on by Mr. Gumbhir, except for the Poe case. The Board cites and relies on a myriad of cases from other jurisdictions in which the courts have quite uniformly rejected the unlawful delegation argument in cases where the admission of lawyers to practice law may have been limited to those graduating from law schools accredited by the American Bar Association. However, the cases relate to limitations imposed by the courts, not by the legislatures. Some of these states have requirements similar to that of Kansas for the basic qualifications for applicants for admission to practice. Rule 704 of the Rules of the Supreme Court provides:
“[E]ach applicant shall satisfy the Admissions Board that he has completed a full course of study in both an accredited college and an accredited law school and that he has been granted and holds a baccalaureate degree and a Bachelor of Laws or Juris Doctor degree or their equivalent or higher degrees. . . . The standard for determining sufficiency of any educational requirement, or of courses of study leading to the granting of degrees above mentioned, shall be that fixed and recognized by the University of Kansas.” 225 Kan. cxl, cxli.
Therefore in Kansas, what is an accredited college or law school depends on a standard, the University of Kansas, and the final determination as to required educational requirements is left to the board of admissions, which is an arm of the court. The cases involving the admission of attorneys are not too persuasive on the question of unlawful delegation of legislative authority, for the licensing and the control of attorneys are not based upon legislative authority. The licensing and control of attorneys, traditionally, has been recognized and exercised as an inherent power of the courts in the administration of justice. The judicial article of the Constitution of the State of Kansas, Article 3, Section 1, places the judicial power of this state in one court of justice; and the Supreme Court is given administrative authority over all courts in this state. The inherent power of the Supreme Court in licensing and controlling attorneys was recognized by the legislature in K.S.A. 7-103 where it is stated this court may make such rules as it may deem necessary for the examination of applicants for admission to the bar of this state and for discipline and disbarment of attorneys.
Many of the cases relating to the licensing requirements for attorneys are in states which follow similar rules to those adopted in Kansas. In Kansas a certain educational standard is set forth as a guideline for use by the board of admissions. This would not be an unlawful or unreasonable delegation when it is placed in the hands of a board appointed by the court which has and retains the primary authority.
By way of comparison of the educational qualifications required of applicants for registration and certification as a pharmacist and those requirements for licensing by the Board of Healing Arts, we note that the statute, K.S.A. 1979 Supp. 65-2865, authorizes the Board of Healing Arts to promulgate all necessary regulations to be filed with the revisor of statutes. The rules and regulations adopted by the board which have the effect of law include K.A.R. 1980 Supp. 100-6-2. This regulation requires an applicant for license to be “[a] graduate of an approved healing arts school or college” and:
“(A) A doctor of medicine and surgery shall present proof to the board that he or she has completed a postgraduate training or residency training program of not less than one (1) year’s duration approved by the council of education of the American medical association or its equivalent in the year in which he or she took such training or present proof that he or she has completed two (2) year’s employment under a fellowship license.” Emphasis supplied.
We note a standard is used of the council of education of the American medical association or its equivalent. K.A.R. 100-6-3 provides:
“The board shall prepare and keep up-to-date a list of accredited healing arts schools but no school shall be approved without the formal action of the board.”
K.A.R. 1980 Supp. 100-6-5 covers applications of foreign graduates for examination and requires proof that the foreign school or college from which the applicant graduated meets the requirements set out in K.S.A. 65-2874 as follows:
“An accredited school of medicine for the purpose of this act shall be a school or college which requires the study of medicine and surgery in all of its branches, which the board shall determine to have a standard of education not below that of the university of Kansas school of medicine. All such schools shall be approved by the board.”
Again we note a standard of education is set of not below that of the University of Kansas School of Medicine. The authority to approve the educational qualifications remains with the board.
Now, where does this lead us so far as K.S.A. 1979 Supp. 65-1631(a) is concerned? The statute which regulates registration of pharmacists requires every applicant for examination to be a graduate of a school or college of pharmacy “accredited by the American council on pharmaceutical education and recognized and approved by the board.” The wording of this statute and the interpretation placed upon this provision by the Pharmacy Board has the effect of delegating to ACOPE through its accreditation process the standards of education required before registration is permitted. ACOPE is not a governmental agency. It is a private nonprofit association having full control over its own accreditation requirements. The arbitrary and unreasonable nature of its action in its accreditation process is apparent in this case. No foreign schools receive ACOPE accreditation. No graduate schools either in or out of the United States are accredited.
The provision in K.S.A. 1979 Supp. 65-1631(a) which restricts approval of the necessary educational qualifications for examination and registration of pharmacists in this state to those individuals who have graduated from schools of pharmacy accredited by the American Council on Pharmaceutical Education, a nongovernmental agency, is constitutionally impermissible. The Kansas State Board of Pharmacy, which has been given general authority to register pharmacists, if bound by said provision, would not have the ultimate authority. That authority would be in ACOPE, a nongovernmental association which makes its own standards for accrediting those schools whose graduates may become registered pharmacists in Kansas.
The provision of the statute referred to above constitutes an unlawful delegation of legislative authority to a nongovernmental association and is constitutionally impermissible under Article 2, Section 1 of the Constitution of the State of Kansas.
The closing provision of the State Pharmacy Act, K.S.A. 1979 Supp. 65-1649, provides:
“If any clause, sentence, paragraph, section or part of the pharmacy act of the state of Kansas or the application thereof to any person or circumstances shall for any reason be adjudged by any court of competent jurisdiction to be unconstitu tional or invalid, such judgment shall not affect, impair or invalidate the remainder thereof, and the application thereof to other persons or circumstances, but shall be confined in its operation to the clause, sentence or paragraph, section or part thereof involved in the controversy, in which such judgment shall have been rendered and to the person or circumstances involved. It is hereby declared to be the legislative intent that such act would have been enacted had such unconstitutional or invalid provisions not been included.”
A legislative intention to uphold and retain a part of a legislative act if a portion thereof is held to be unconstitutional and void should be upheld when it appears the remaining portion of the act would have been enacted had such unconstitutional or invalid provisions not been included. State v. Next Door Cinema Corp., 225 Kan. 112, Syl. ¶ 8, 587 P.2d 326 (1978); State, ex rel, v. City of Overland Park, 215 Kan. 700, 711, 527 P.2d 1340 (1974). Such an intention is clearly expressed. The phrase which is constitutionally impermissible as an unlawful delegation of legislative power in K.S.A. 1979 Supp. 65-1631 is “accredited by the American council on pharmaceutical education and.” By striking this phrase the balance of the statute appears proper. The removal of said portion would not appear to affect, impair, or invalidate the remainder thereof. The valid portion of the statute remaining can then be read and applied as follows:
“Every applicant for examination and registration as a pharmacist shall be of good moral character and temperate habits, a graduate of a school or college of pharmacy or department of a university . . . recognized and approved by the board, and shall file proof satisfactory to the board, substantiated by proper affidavits, of a minimum of one year of pharmaceutical experience . . . .”
Having decided this portion of the statute is constitutionally impermissible because it unlawfully delegates legislative authority to a nongovernmental agency, it is not necessary for us to examine the other constitutional questions and issues raised by appellant concerning the refusal of the Board to permit examination and registration. Such questions and issues are raised merely as additional grounds for reversing the decision of the district court and of the Board.
We reverse the judgment of the district court and set aside the order of the Kansas Board of Pharmacy denying Ashok K. Gumbhir’s application to take the examination for registration as a pharmacist, and denying his application to be admitted by reciprocity. The Kansas Board of Pharmacy is directed to reconsider these applications in accordance with what has been said in the foregoing opinion. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action to recover damages for an alleged libel, arising from the publication and distribution of a brochure in the closing days of the 1978 primary election campaign. The plaintiff, Ronald R. Hein, was and is the Kansas state senator from the 20th Senatorial District, Shawnee County, Kansas. At the time of the publication, he was a candidate for the Republican nomination for the Second Congressional District. The defendant, Sterling E. Lacy, is a professional family counselor who served as state chairman of the American Party. The brochure was prepared for mailing at the defendant’s office which, at the time, was also the state headquarters of the American Party.
On July 25, 1978, just six days before the August 1st primary election, the defendant Lacy caused to be distributed by mail and by hand around 22,000 copies of a brochure concerning the plaintiff Hein. A verbatim copy of the brochure is as follows:
On July 31, 1978, the day before the primary election, plaintiff filed his petition in Shawnee County District Court, alleging that the brochure, by innuendo and misstatement of fact, was published with the malicious intent to defame and to reflect adversely upon plaintiff’s candidacy. Plaintiff claimed, in substance, that the implication that he favored “pot and gays” was false and misleading, and, therefore, defamatory. He sought to recover both actual and punitive damages.
The defendant filed an answer in which he denied that the statements contained in the brochure were defamatory, alleging that the statements contained therein were true and, if not true in the fullest sense, were at least not actionable because he lacked any knowledge of their falsity. The parties then proceeded with discovery, obtaining admissions of fact and identifying and placing in the record certain documents, bills, and journals of the 1977 Kansas Senate and summaries of statements made before certain senate committees. These documentations are not disputed. They reflect the events surrounding the Senate committee’s consideration of Senate Bill 310 (SB), pertaining to criminal prohibitions against certain sexual acts, and House Bill 2313 (HB), which would have reduced the penalty for possession of one ounce or less of marijuana. The voting record and positions taken by Senator Hein with respect to the two bills are clearly shown. In order to determine the issues raised on this appeal, we must first consider the background of each bill separately.
HB 2313 contained proposed amendments to the Uniform Controlled Substances Act (K.S.A. 65-4101 et seq.). At the time HB 2313 was being considered by the 1977 Kansas legislature, the possession of any quantity of marijuana was a class A misdemeanor, punishable by imprisonment in the county jail for up to one year or by a fine of up to $2,500 or both such fine and imprisonment (K.S.A. 1976 Supp. 65-4127b, 21-4502, and 21-4503). HB 2313, if enacted by the legislature, would have reduced the penalty for the possession of one ounce or less of marijuana to an unclassified misdemeanor punishable by a fine of not more than $100 for the first offense. Upon subsequent convictions, a person convicted of that offense would be punished as though guilty of a class A misdemeanor. The possession of greater amounts of marijuana than one ounce was subject to more severe penalties. The minutes of the Senate Federal and State Affairs Committee, dated March 31, 1977, reflect that Senator Hein seconded the motion of Senator Allegrucci to recommend HB 2313 favorably for passage. This motion failed and the bill was ultimately reported to the Senate without recommendation. The journal of the Senate for April 4, 1977, (pp. 560-561) reflects that Senator Hein moved that HB 2313 be referred back to the Senate committee after Senator Angelí moved that the bill be stricken from the calendar. On that same day, a roll call was taken on whether to reconsider the action of the Senate on HB 2313. Senator Hein voted for reconsideration of the bill, but the motion failed and the bill was not adopted. These documents make it clear from the actions and votes of Senator Hein that he favored the adoption of HB 2313. The question then arises whether HB 2313 provided for the “decriminalization of marijuana” which was the charge against Senator Hein contained in the statements of the defendant in the brochure. HB 2313 clearly would have provided for a substantial reduction in the penalty for the first-time conviction of a possession of a small quantity of marijuana. The ultimate issue is whether this result would constitute the “decriminalization of marijuana” as that term is generally understood in common usage today.
Included in the records of the Senate committee are the statements of various witnesses who appeared both in support of and in opposition to HB 2313. It is important to note that a number of the witnesses specifically referred to the reduction of the penalty on possession of small amounts of marijuana as the “decriminalization of marijuana.” It is clear that the common understanding of many of these persons was that “decriminalization” did not mean the same as outright legalization — that decriminalization was a kind of halfway step toward legalization of marijuana. The witnesses appearing both in favor of and against the bill used the terms “decriminalization” and “legalization” in a manner reflecting a common understanding of those terms. The district court, in its memorandum decision granting summary judgment, concluded that the statements made by the defendant in the brochure that Senator Ron Hein’s “arguments and his votes were in favor of the decriminalization of marijuana” fell within the ambit of fair comment and were protected under freedom of speech guaranteed by the First Amendment to the Constitution of the United States. Hence, it held such statements could not serve as a basis for an action in libel.
SB 310 would have amended several sections of the Kansas Criminal Code pertaining to sex offenses. The bill would have re-defined and broadened the crime of sodomy for hire and would have defined bestiality as coitus with an animal and made it a crime. In addition, SB 310 would have repealed sections of the code prohibiting sodomy between consenting adults, adultery, and unlawful cohabitation. Although the purpose of the bill was apparently to outlaw massage parlors, the proposed legislation would have removed the prohibition against copulation between consenting adults of the same sex. In its memorandum decision granting summary judgment to the defendant, the court held that defendant’s statements concerning SB 310 were not so recklessly false as to demonstrate the malicious intent to injure required by the Constitution before an action in defamation can be maintained by a public figure whose voting record is attacked. The trial court concluded that the defendant’s comments were constitutionally protected and summary judgment was appropriate. The trial court granted summary judgment in favor of defendant Lacy, and the plaintiff Hein appealed to this court.
There are three basic issues raised on the appeal: (1) Whether the statements made by the defendant were substantially true; (2) if the statements were false, whether the record establishes lack of malice as a matter of law; and (3) whether summary judgment was granted to the defendant prematurely because discovery had not been completed.
At the outset, we should review certain general rules to be followed in determining a motion for summary judgment. Summary judgment should not be entered if there remain genuine issues of material fact. Welch v. Young, 225 Kan. 189, 589 P.2d 567 (1979). In considering a motion for summary judgment, a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P.2d 611 (1979); Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978). It has been recognized that summary judgment should be employed with caution in defamation cases. However, summary judgment may properly be granted in a defamation case when the evidence shows no liability as a matter of law and where the essential facts are not in dispute. Steere v. Cupp, 226 Kan. 566, 602 P.2d 1267 (1979); Gleichenhaus v. Carlyle, 226 Kan. at 169.
Before specifically addressing plaintiff’s claims, it would also be helpful to review some general principles of the law of defamation pertaining to public officials and candidates for public office as developed in decisions of this court and in decisions of the United States Supreme Court. The principal Kansas case setting forth the standards to be applied in a defamation action by a political candidate against one who has published criticism of the candidate is Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281 (1908). In Coleman, this court recognized the competing constitutional interests in freedom of the press and the individual’s right to a remedy for injury to reputation. The court stressed the importance of open and unfettered debate about political issues, including the character and qualifications of political candidates. In the opinion the court stated:
“Under a form of government like our own there must be freedom to canvass in good faith the worth of character and qualifications of candidates for office, whether elective or appointive, and by becoming a candidate, or allowing himself to be the candidate of others, a man tenders as an issue to be tried out publicly before the people or the appointing power his honesty, integrity, and fitness for the office to be filled.
“Paraphrasing this language, it is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.” pp. 723-724.
Having found the published discussion of the candidate’s qualifications to be conditionally privileged, the Coleman court went on to hold that a showing of malice — actual evilmindedness — was necessary to defeat the privilege and to make the false publication actionable. The burden of proving malice was placed on the plaintiff, and no presumptions were allowed. Proof of malice was to be established by interpretation of the writing which would indicate malignity or recklessness in making the charge. To permit good faith in the publication to be asserted as a defense to the libel struck a fair balance between the public need and the private right.
In Good v. Higgins, 99 Kan. 315, 161 Pac. 673 (1916), the court relied upon Coleman but elaborated:
“Before such statements concerning a candidate for office can be justified or excused as privileged, it must be shown that they were uttered in good faith, in the sincere belief of their truth, and with good reason to believe they were true, and that they were uttered in an honest endeavor to lay the facts before the electors as to the real fitness of the candidate who sought their suffrages.” Syl. ¶ 4.
Accord, Majors v. Seaton, 142 Kan. 274, 280-281, 46 P.2d 34 (1935).
The public policy and resulting conditional privilege which protects comments on the character and fitness of political candidates also extends to comments and criticisms about incumbents and their conduct in office. Kennedy v. Mid-Continent Telecasting, Inc., 193 Kan. 544, 549, 394 P.2d 400 (1964); Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 340 P.2d 396 (1959); Steenson v. Wallace, 144 Kan. 730, 62 P.2d 907 (1936).
In Schulze v. Coykendall, 218 Kan. 653, 661, 545 P.2d 392 (1976), it was stated:
“Proof of actual malice in defamation actions when a conditional privilege is found to exist requires a plaintiff to prove that the publication was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not. (Citations omitted).”
See also Bradford v. Mahan, 219 Kan. 450, 454-455, 548 P.2d 1223 (1976).
New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964), is the leading case of the United States Supreme Court pertaining to defamation actions by public officials. It was based in part on this court’s decision in Coleman. In New York Times Co., the court stressed the importance of free and unfettered political discussion. The court noted that erroneous statements are inevitable in a free debate, and must be protected to allow some “breathing space” during the debate. The court declared that public officials should be “men of fortitude, able to thrive in a hardy climate.” 376 U.S. at 272-73. Because of the legitimate public interest in information concerning official conduct of public officials, criticism of official conduct should not lose its constitutional protection merely because it is effective and therefore diminishes official reputations. The court in New York Times Co. then held that for a public official to recover damages for a defamatory falsehood relating to his official conduct, the first amendment requires that he prove with convincing clarity that the statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
Following New York Times Co., the Restatement (Second) of Torts § 580A defined the term Defamation of Public Official or Public Figure as follows:
“One who publishes a false and defamatory communication concerning a public official or public figure in regard to his conduct, fitness or role in that capacity is subject to liability, if, but only if, he
“(a) knows that the statement is false and that it defames the other person, or
“(b) acts in reckless disregard of these matters.”
For there to be liability for defamation, there must be a publication of matter that is both defamatory and false. One who publishes a defamatory statement is not subject to liability if the statement is true. See Restatement (Second) of Torts § 581A; Steere v. Cupp, 226 Kan. 566; Mundy v. Wight, 26 Kan. 173 (1881); Castle v. Houston, 19 Kan. 417 (1877). In Steere, we held that where the published statements are substantially true, there is no malice and, hence, no liability. In comment (f) to § 581A of Restatement (Second) of Torts, it is stated:
“It is not necessary to establish the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.”
In determining the issue of libel in defamation cases brought by public officials, it is clear that each case must be decided on its own factual circumstances. On the basis of the entire record before us, we have concluded that the trial court properly granted summary judgment in favor of the defendant in this case. The statements made by defendant in the brochure essentially involve the voting record and views of the plaintiff in his capacity as a Kansas state senator. At the beginning, the brochure declares that it is an open letter “Re: Sen. Ron Hein’s Legislative Stand on Decriminalization of Marijuana and Legalization of Homosexuality.” (Emphasis added.) The words “vote,” “voting,” or “voted” are used eight different times in the brochure. Other references are made to Sen. Hein’s “views” and his “position” on the legalization of homosexuality and the decriminalization of marijuana. Taken as a whole, we do not interpret the brochure as an attack on the personal integrity or character of the plaintiff, it attacks only his views and voting record in areas where there is wide public controversy and difference of opinion.
We note from the records of the Senate committee that knowledgeable and respectable persons appeared on both sides of the issues presented by HB 2313. Professors, psychiatrists, and ministers spoke both in favor of and against HB 2313. We note, for example, that in 1972 the National Institute on Drug Abuse (the Schaefer Committee) issued its report to the President and to Congress recommending that the possession of a small amount of marijuana for personal use should not be a crime. Among the organizations listed as endorsing the reduction of criminal penalties for simple possession of marijuana are included the American Bar Association, American Public Health Association, the governing board of the American Medical Association, the National Education Association, the National Association for Mental Health, and the National Council of Churches. A number of respected law enforcement officers of the State of Kansas appeared before the Senate committee and testified in opposition to HB 2313. Clearly the subject matter of HB 2313 was one on which there is wide public disagreement, not only in Kansas but throughout the United States. As to SB 310, it was primarily directed toward the control of massage parlors but would have repealed the statute making consensual copulation between persons of the same sex a crime. We note that the bill passed the Senate and was, therefore, supported by a majority of its members. Suffice it to say, the issue as to the rights of homosexuals is one that has been in the press on numerous occasions in recent years and is also the subject of widespread controversy in various communities in this country.
On the undisputed factual background, we have concluded that the statements made by defendant in the brochure were substantially true. On the issue of decriminalization of marijuana, the district court interpreted the word “decriminalization” as that court felt it was commonly understood. It is apparent that the term “decriminalization of marijuana” is susceptible of various definitions. For support of plaintiff s definition of decriminalization, we note Black’s Law Dictionary 371 (5th ed. 1979), where the term decriminalization is defined as “An official act generally accomplished by legislation, in which an act or omission, for merly criminal, is made non-criminal and without punitive sanctions.” See also Harper Dictionary of Contemporary Usage 192 (1975), where it is stated that “decriminalize,” of relatively recent coinage, is frequently used by persons seeking to abolish legal penalties for marijuana use, homosexual behavior, prostitution, or attempted suicide. The word “decriminalization” may not be found in Webster’s Third New International Dictionary (1967). We note, however, that on page 579, the term “dé” when used as a prefix with a verb may mean either to remove (a specified thing or things) or to reduce or make lower. Webster would permit the term “decriminalize marijuana” to be used in the sense of reducing or lowering the criminal penalty for possession of marijuana as well as to remove all criminal penalties. As noted by the district court, the plaintiff supported and voted for HB 2313 which would have reduced the legal penalty for the possession of small amounts of marijuana on first offenses. We have concluded that, under the interpretation of the term “decriminalization of marijuana” as that term was frequently used throughout the hearings before the Senate committee, the statements in the brochure that the plaintiff voted for and was in favor of the decriminalization of marijuana were substantially true and, therefore, a cause of action in defamation cannot be based upon the defendant’s statements contained in the brochure referring to Sen. Hein’s “views” and “position” on that subject.
We next consider the statement of defendant in the brochure that Sen. Hein voted to “legalize homosexuality.” The plaintiff contends that the term “homosexuality” generally refers to a lifestyle rather than to homosexual intercourse, so that defendant’s statement that plaintiff had voted to legalize homosexuality was false. It is undisputed that SB 310 would have removed any legal prohibition of consensual homosexual relationships. It is undisputed that the plaintiff voted for SB 310 along with the majority of the members of the state senate. Turning to Webster’s Third New International Dictionary 1085 (1967), we find that the term “homosexuality” has more than one meaning. It is defined as “atypical sexuality characterized by manifestation of sexual desire toward a member of one’s own sex.” It is also defined as “erotic activity with a member of one’s own sex.” Taking the second definition, it is literally true that the plaintiff, in voting for SB 310, voted to legalize homosexuality. Hence, defendant’s statement is not actionable in defamation because the statement was substantially true. In passing, it should be noted that SB 310 would have expanded the definition of prostitution to include sodomy for hire, thus making homosexual relations for a price a crime.
In support of his position, the plaintiff maintains that the trial court erred in not finding the headlines contained in the brochure to be separate from the text of the letter, and libelous even if the text was not. Under Kansas law, where a headline gives a “fair index of what follows in the article, and even though it might be said to exaggerate the character or conduct of the matter described in the article, such fact would not itself show express malice and prevent defendant from interposing the defense of conditional privilege.” Beyl v. Capper Publications, Inc., 180 Kan. 525, 528, 305 P.2d 817 (1957). It has also been held that headings and introductory portions of an article must be construed together with the article itself, and that mere exaggeration does not defeat the privilege of comment on official conduct. Steenson v. Wallace, 144 Kan. at 734. Applying Kansas law to the facts before the court, it cannot be said that the headlines and introductory material did not accurately refléct the content of the following text, or that they were such an exaggeration as to demonstrate express malice in the publication.
The plaintiff contends that, if the literal meaning of the letter was not libelous, the imputation that he favored “pot” and “gays” was false and actionable in libel. The clear import of the letter was the plaintiff had voted for legislation which would have legalized homosexual intercourse and which would have reduced the criminal penalties for marijuana offenses. Any statement or inference that plaintiff’s voting record indicated a preference for, or favor of, “pot and gays” would fall within the ambit of reasonable comment on official conduct. Majors v. Seaton, 142 Kan. 274. Additionally, an inference from the publication that plaintiff favored “pot and gays” might as easily have been inferred from a statement setting out the content and description of the two bills, rather than merely labeling their effect.
On the basis of the undisputed factual circumstances contained in the record, we hold that the statements made in the defendant’s letter were substantially true. However, it should be added that the whole truth was not stated. It seldom is in political cam paigns. In this regard, we note the observations of the Supreme Court of Pennsylvania in Clark v. Allen, 415 Pa. 484, 488, 204 A.2d 42 (1964), where it is stated:
“It is deplorable but true that during a political campaign, candidates and their supporters often indulge in gross exaggeration, invectives, distorted statements, charges of being unfit for the office sought, gross incompetence, disregard of the public interest or the welfare of our Country, prophecies of war or doom if the opponent is elected, mudslinging, half truths and outright lies which are so defamatory that they not only deeply wound the feelings of the person attacked, but undoubtedly damage his political aspirations and often (for a time) his reputation. Nevertheless, the Supreme Court has apparently taken the position that the free expression of thoughts and opinions, charges, accusations, criminations and recriminations regarding men in public life and political matters are so valuable and so essential to the preservation or improvement of our Government that they must be permitted and constitutionally protected unless they are made with actual malice.”
To preserve our freedoms, the expression of individual opinion and criticism of public officials must be given a broad scope. A person who holds political office should expect that opposition to his candidacy for reelection will be expressed at times with distortion and vituperation. A person who holds political office should not be a rabbit or wear his feelings on his sleeve. In this case it is easy to understand why the plaintiff was concerned by the language used and the time and manner in which the brochure was distributed. However, it is only under unusual circumstances that a public official may successfully seek redress in an action for defamation for injury to his reputation. This case does not present factual circumstances where such a cause of action is maintainable.
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The opinion of the court was delivered by
Fromme, J.:
The plaintiff Jimmy R. Collier appeals from an order of the district court dismissing his petition for damages with prejudice. The court reasoned that it was without subject matter jurisdiction because the controversy concerned matters arguably protected by the Labor Management Relations Act of 1947, or arguably prohibited by said act.
The plaintiff filed the cause of action for damages against two local labor unions for intentionally, willfully, and maliciously interfering with the plaintiff in the performance of a contract and causing Owens-Corning Fiberglas Corporation (Owens-Corning) to terminate said contract with plaintiff. Plaintiff alleged the acts of the unions constituted tortious interference with an existing contract to build a parking lot on the premises of Owens-Corning. It was further alleged that as a result of defendants’ wrongful acts they intentionally procured a breach of said contract. Both compensatory and punitive damages were sought for loss of business and loss of business profits.
Construction and General Laborers’ Local Union No. 1290 (Union No. 1290) and Operating Engineers Local Union No. 101 (Union No. 101) filed separate motions to dismiss which were treated as motions for summary judgment in that both the plaintiff and the labor unions filed affidavits supplementing the allegations in the petition.
The following facts are gleaned from the affidavit filed by Collier. On April 5, 1978, he entered into a written contract with Owens-Corning to provide labor, materials and equipment necessary to prepare a parking lot on Owens-Corning’s premises. On May 19, 1978, a representative of Union No. 1290 came to the job site where his employees were working and asked if Collier was a union contractor. Collier said he was not. He was then asked if he was going to become a union contractor. He again advised that he was not. On May 26, 1978, the representative of Union No. 1290 returned, accompanied by a representative of Union No. 101. They came on the lot and threatened to put a “banner” on the job. Collier told them not to interfere with his contract and reminded them of the Kansas right to work law. Collier had no contract with either union. On May 30, 1978, members of Union No. 1290 placed a picket at the job site and Owens-Corning then terminated its contract with Collier. Owens-Corning advised Collier that if the picket remained on the premises Owens-Corning employees would honor the picket and the plant would have to be shut down. It was better for Owens-Corning to terminate the contract and get a union contractor to finish the parking lot. Collier had performed at least fifty contracts for Owens-Corning. Collier had also received requests to bid on jobs of Owens-Corning on an average of once a week for nine or ten years. Ever since the incident ending with the picketing, Collier has had no correspondence or requests for bids from Owens-Corning.
The unions, in support of the motions to dismiss, filed a memorandum arguing that under the doctrine of federal preemption the petition alleges conduct which is within the exclusive jurisdiction of the National Labor Relations Board (NLRB). In addition they filed an affidavit by the president of Union No. 1290 in which he stated he had received information that Collier was performing construction work at the Owens-Corning facility, that Collier was paying wages below the prevailing area standard for workers in the laborer’s trade, and that he instructed his people to establish an area standards picket at the Owens-Corning facility to notify members of the public that the unions’ established area working conditions were being broken down by Collier. The picket banner read “Jimmy R. Collier - Breaking Down Established Working Conditions - Laborers Local 1290, AFL-CIO.” Collier was no longer retained on the job. The picket banner was removed. The union president stated he and the union did not procure or attempt to procure the breach of the contract between Collier and Owens-Corning. This latter statement appears to be in direct conflict with the statements in the petition and in the affidavit of Collier.
We are confronted at the outset with a question of procedure. The unions filed no pleadings except those designated as motions to dismiss under K.S.A. 60-212(fe)(6). They alleged lack of subject matter jurisdiction and federal pre-emption of subject matter. However, an affidavit was filed in support of the motions setting forth facts showing at least one major factual disagreement with Collier’s petition, i.e., the purpose or object of the picketing. K.S.A. 60-212(¿)(6) provides for a dismissal for “failure to state a claim upon which relief can be granted.” This statute further provides in pertinent part:
“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256.”
When the status of a motion under K.S.A. 60-212(fo)(6) has been converted to that of a motion for summary judgment, reasonable opportunity to present all material pertinent to such a motion should be given. The parties have lodged no objection by reason of this conversion and the plaintiff did respond by affidavit to the motion as if it were one for summary judgment. Under the circumstances we see no prejudice from this conversion. Both this court and the federal courts have recognized and permitted conversion of a motion to dismiss into a motion for summary judgment. Gardner v. McDowell, 202 Kan. 705, 706, 451 P.2d 501 (1969); 5 Wright & Miller, Federal Practice & Procedure: Civil § 1366 (1969).
Summary judgment should not be entered where there are disputed issues of material fact. Mildfelt v. Lair, 221 Kan. 557, 559, 561 P.2d 805 (1977). An appellate court in examining the validity of a motion for summary judgment should read the record in the light most favorable to the party who defended against the motion. It should accept such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant. Woods v. Cessna Aircraft Co., 220 Kan. 479, 481, 553 P.2d 900 (1976); Nordstrom v. Miller, 227 Kan. 59, 64, 605 P.2d 545 (1980).
For the purposes of this appeal we must accept plaintiff’s allegations that the unions intentionally and maliciously placed the picket and banner on the Owens-Coming premises for the purpose of interfering with the existing contract and for the further purpose of procuring a breach of that contract between Collier and Owens-Coming.
The unions call this court’s attention to the doctrine of federal pre-emption under the United States Constitution and point out the United States Supreme Court acknowledges that the grant of power to Congress to regulate commerce necessarily excludes concurrent powers in the states. They point out that the National Labor Relations Board (NLRB) was created by Congress under the forerunner of the Labor Management Relations Act of 1947, and. the board has for its purpose the settlement of disputes affecting interstate commerce arising between labor and management.
The unions cite many federal cases on the subject of federal pre-emption such as Guss v. Utah Labor Board, 353 U.S. 1, 1 L.Ed.2d 601, 77 S.Ct. 598 (1957). In the latter case a state labor relations board acted on charges of unfair labor practices against an employer whose business affected interstate commerce. On appeal to the United States Supreme Court it was held the state labor relations board had no power to enjoin an employer, whose business affects interstate commerce, from engaging in unfair labor practices prohibited by the federal act. In Guss it is further stated:
“[T]he States’ power to act with respect to matters of local concern is not necessarily superseded. But in each case the question is one of congressional intent.” 353 U.S. at 10.
It is generally understood because of the doctrine of federal pre-emption state courts have no jurisdiction to entertain actions arising from labor combat except under special circumstances. See Reece Shirley & Ron’s, Inc. v. Retail Employees Union & Local 782, 225 Kan. 470, 592 P.2d 433 (1979); Inland Industries, Inc. v. Teamsters & Chauffeurs Local Union, 209 Kan. 349, 496 P.2d 1327 (1972); Cooperative Refinery Ass’n. v. Williams, 185 Kan. 410, 345 P.2d 709 (1959); Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P.2d 110 (1955). In the above cases injunctions were sought in the state court and jurisdiction to entertain the actions was denied.
However, we note the following provisions of the Labor Management Relations Act of 1947:
“(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title [29 U.S.C. - Labor],
“(b) Whoever shall be injured in his business or property by reason or any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.” 29 U.S.C. § 187. Emphasis supplied.
The foregoing provision is generally referred to as § 303 of the Labor Management Relations Act.
None of the parties have favored us with this citation, and no discussion of the section appears in either the trial court’s transcript or in the appeal briefs. Subsection (a) makes it unlawful for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of Title 29 U.S.C. - Labor. Subsection (b) authorizes suit in any district court of the United States, “or in any other court having jurisdiction of the parties.” It authorizes a suit for damages. We specifically note the action is limited to damages and nothing is said about relief by way of injunction. This section of the statute shows clear congressional intent to permit such a damage action in state and federal courts.
In Teamsters Union v. Morton, 377 U.S. 252, 12 L.Ed.2d 280, 84 S.Ct. 1253 (1964), a suit for damages was permitted in the United States District Court for the Northern District of Ohio. The factual situation was almost identical to the alleged facts of our present case, except the action was brought in a federal court. (Under our reading of the statute this difference appears immaterial.) During a peaceful strike against a trucking contractor whose employees the union represented, a teamsters’ union encouraged the employees of one of the trucking contractor’s customers to force their employer to cease doing business with the contractor, and did persuade the management of another customer to refrain from doing business with the trucking contractor. The contractor sued the union. On appeal to the United States Supreme Court is was held the union was liable for damages for encouraging the employees of the first customer to force their employer to cease dealing with the contractor. Such action by the union violated § 303 of the Labor Management Relations Act. In Morton the high court said:
“Section 303(b) of the Labor Management Relations Act expressly authorizes state and federal courts to award damages to any person injured by certain secondary boycott activities described in § 303(a). The type of conduct to be made the subject of a private damage action was considered by Congress, and § 303(a) comprehensively and with great particularity ‘describes and condemns specific union conduct directed to specific objectives.’ Carpenters Local 1976 v. Labor Board, 357 U.S. 93, 98. In selecting which forms of economic pressure should be prohibited by § 303, Congress struck the ‘balance . . . between the uncontrolled power of management and labor to further their respective interests.’ id., at 100, by ‘preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and [by] shielding unoffending employers and others from pressures in controversies not their own.’ Labor Board v. Denver Bldg. & Construction Trades Council, 341 U.S. 675, 692.” 377 U.S. at 258-59.
The Chief Justice of the Supreme Court of Idaho, speaking on jurisdiction in a labor combat case in Simpkins v. Southwestern Idaho Paint. Dist. Co. No. 57, 95 Idaho 165, 505 P.2d 313 (1973), said:
“Section 303 [of Labor Management Relations Act of 1947] embodies a ‘clear exception to the exclusive jurisdiction of the NLRB’, and grants the state courts primary jurisdiction concurrent with federal courts to decide suits for damages when the cause of action is grounded in § 8(b)(4).” p. 171.
In Simpkins the trial court had dismissed the case for lack of primary jurisdiction. On appeal the case was reversed and remanded to determine whether the union picketing constituted proscribed secondary activity or protected primary activity. If it was primary activity it was not an unfair labor practice and no action would lie. If, however, it constituted secondary activity it was proscribed and damages were recoverable in the state court.
Considering the Labor Management Relations Act of 1947, 29 U.S.C. § 158, we find a listing of unfair labor practices by an employer under subsection (a). Under (b) are listed unfair labor practices by a labor organization or its agents. Among such proscribed practices is:
“(b) It shall be an unfair labor practice for a labor organization or its agents —
“(4) . . . (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is —
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: . . .” Emphasis supplied. 29 U.S.C. § 158(b)(4)(ii)(B).
29 U.S.C. § 158(b)(4)(ii)(B) proscribes certain union activities which are generally referred to as secondary boycotts. In an annotation in 12 L.Ed.2d 1141, § 2, pp. 1148-49, the author states:
“Generally speaking, proscribed union activities lose their primary nature and become prohibited secondary activities actionable under § 303 where they take place at a third person’s worksite, since in such a case the third person rather than the employer is the object of the union pressure. Accordingly, unions have been held liable under § 303 not only for activities at a third person’s mine, factory, or other worksite, and activities on the open highway against a third person’s truckdrivers, but also for activities at a worksite jointly that of the employer and a third person.
“If a union adopts any of the aforementioned proscribed means to accomplish any of the aforementioned prohibited objects, anyone injured in his business or property thereby — including primary employers and their employees as well as neutrals to the dispute — may recover damages therefor, as long as his damage is direct and not merely incidental or remote. Recovery is limited to actual, compensatory damages ‘and the cost of the suit,’ and no punitive damages may be allowed. Attorneys’ fees paid or incurred in the prosecution of other suits may be recovered as a part of the damages, but attorneys’ fees paid or incurred in prosecuting the § 303 suit are not recoverable.
“Only unions, and not union members or employers, may be held liable under § 303. According to the lower federal courts, the common-law rules of agency determine for what acts of individuals a union may be held liable under § 303.
“Federal District Courts, including those sitting in territories, have jurisdiction of damage suits brought under § 303, regardless of the amount in controversy or lack of diversity of citizenship between the parties. They have no jurisdiction of suits brought under § 303 for injunctive relief, except where damages are also sought. State courts also have jurisdiction of suits brought under § 303, but federal law governs in $ 303 suits, even if they are brought in state courts. Federal law governing limitations and laches has been held applicable in § 303 suits, even though no federal statute of limitations applies in such actions.”
The Labor Management Relations Act of 1947, 29 U.S.C. § 187(b), expressly provides a clear exception to the exclusive jurisdiction of the NLRB, and grants the state courts primary jurisdiction concurrent with federal courts to decide claims for damages when the cause of action is grounded on a violation of 29 U.S.C. 158(b)(4). For a violation of 29 U.S.C. § 158(b)(4), condemning secondary boycotts, double remedy is available to the aggrieved party, one being an administrative remedy generally available by bringing the dispute to the National Labor Relations Board, and the other a remedy for damages under 29 U.S.C. § 187(b), and these remedies are independent of one another. East Photo Lab v. Blueprint Photostat, etc., Local 249, 71 N.J. Super 385, 177 A.2d 69 (1961); 48A Am. Jur. 2d, Labor and Labor Relations § 1688, p. 166. An exhaustive annotation on the Validity and Construction of § 303 of Labor Management Relations Act (29 USC § 187) Giving Right of Action Against Union for Inducing Strikes and Secondary Boycotts appears in 7 A.L.R. Fed. 767 through 839.
In Gulf Coast Bldg. & S. Co. v. International Bro. of Elec. Wkrs., 428 F.2d 121 (5th Cir. 1970), 7 A.L.R. Fed. 756, the Fifth Circuit holds that a cause of action will lie under § 303 of the act (29 U.S.C. § 187), when a union pickets a construction site with signs alleging the nonunion electrical subcontractor was undermining area standards. The court stated if the object of the picketing was to force Gulf Electric (the subcontractor) to pay area standards, then the union’s actions did not constitute a secondary boycott. If, however, the union had the purpose of forcing Gulf Coast (the general contractor) to sever its ties with Gulf Electric, and its picketing was designed to accomplish that purpose, its actions amounted to a secondary boycott in violation of 29 U.S.C. § 158(b)(4)(i) and (ii)(B).
So in the present case if the purpose of the picketing was to notify the public of the fact that Collier was breaking down established area standards and working conditions in the laborers’ trade, the union and its members were merely exercising first amendment rights of freedom of speech and such activity is clearly protected primary activity which cannot be the basis for the action. N. L. R. B. v. International Hod Carriers, Etc., 285 F.2d 397, 404 (8th Cir. 1960). If, however, the union, its officers and members had for their purpose the forcing of Owens-Corning to terminate its contract with Collier and sever future association with his company such activity would appear to be in the category of a secondary boycott and in violation of 29 U.S.C. § 158(b). Gulf Coast Bldg. & S. Co. v. International Bro. of Elec. Wkrs., 428 F.2d 121.
Under the unions’ view of the facts in this case, they contend the picketing was clearly protected primary activity. Collier vigorously argues the picketing had for its purpose the termination of the contract and the severing of future business between Collier and Owens-Corning, a prohibited secondary boycott. Therefore, there exists between these parties a genuine issue as to a material fact, and summary judgment was improperly entered in favor of defendants.
Two other matters appear to need some comment to assist the court and parties in a trial of the case. We note that plaintiff has included a prayer for both compensatory and punitive damages in the petition filed in the case. Punitive damages may not be recovered for § 303 violations of the Labor Management Relations Act in an action brought under 29 U.S.C. § 187(b). Teamsters Union v. Morton, 377 U.S. 252. In Morton it was determined that punitive damages for violations of 29 U.S.C. § 187 conflict with the congressional judgment, reflected both in the language of the federal statute and in its legislative history; that recovery for an employer’s business losses caused by a union’s peaceful secondary activities proscribed by 29 U.S.C. § 158(b) should be limited to actual compensatory damages. For additional cases denying punitive damages in such actions see 29 U.S.C.S. § 187, n. 27, pp. 337-38.
A final comment concerns the plaintiff’s petition. It contains no reference to 29 U.S.C. § 187(b) and was drawn in the form of a claim for damages against one who willfully and intentionally intermeddles in the contract rights of another with a resultant loss of contractual rights. Plaintiff’s memorandum in opposition to defendants’ motions to dismiss is largely based on Taylor v. Local Union 101, 189 Kan. 137, 368 P.2d 8 (1962). In Taylor it is held the state court possessed jurisdiction to try the case based on the common law of the state and Article 15, Section 12 of the Kansas Constitution despite the fact that the alleged action of the union giving rise to the claim may have constituted an unfair labor practice.
In Teamsters Union v. Morton, 377 U.S. at 261, it is said:
“In short, this is in an area ‘of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law.’ Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176. Accordingly, we hold that since state law has been displaced by § 303 in private damage actions based on peaceful union secondary activities, the District Court in this case was without authority to award punitive damages.”
It would appear from the foregoing that using local common law as a basis for a damage action might well be impermissible. It would certainly cause difficulties to follow what was said in Taylor because there we indicate an unfair labor practice under 29 U.S.C. § 158(b) does not necessarily have to be proven. The cases under 29 U.S.C. § 187(b) hold otherwise.
We do not believe the plaintiff in the present case should be precluded from proceeding with a cause of action under 29 U.S.C. § 187(b) in this case merely because he either overlooked or failed to cite 29 U.S.C. § 187 as a basis for his action. His claim for damages depends upon proof of an unfair labor practice under 29 U.S.C. § 158(b), and the action is one recognized under 29 U.S.C. § 187(b).
A proper pleading need only contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself or herself entitled. All pleadings shall be so construed as to do substantial justice. K.S.A. 60-208(o)and (f).
In view of the foregoing, issues raised concerning insufficient notice of hearings become immaterial and need not be decided.
The judgment is reversed and the case is remanded for further proceedings. | [
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Per Curiam:
This opinion consolidates two original actions in discipline numbered 52,195 and 51,950 brought against Kansas attorney Max Regier. The actions are before this court pursuant to Supreme Court Rule No. 212 (228 Kan. adv. sheet No. 1, vi-vii). Each complaint and ensuing disciplinary action will be discussed separately.
The facts which gave rise to the complaints are as follows. In June, 1974, Regier represented Charles Dvorak, who was charged with aggravated sodomy. Jury trial was held October 23, 1974, and Dvorak was convicted and sentenced to a term of 15 years to life. Dvorak was released on appeal bond and notice of appeal was filed by Regier on December 26, 1974. The appeal was not docketed in the Supreme Court until April 21, 1976. After several extensions, no brief had been filed by December 1, 1976 and the State moved to dismiss the appeal. On December 6, 1976, Regier filed a motion to suspend Supreme Court proceedings for thirty days in order for the trial court to determine whether fraud had occurred during trial. The State’s motion to dismiss was denied and the motion to suspend was granted.
Regier first suspected Dvorak had committed fraud when he represented him on two unrelated charges in October, 1975. In the aggravated sodomy case, the victim testified the attacker had a very hairy chest and no marks, scars or tatoos. While testifying in his own defense, Dvorak removed his shirt to reveal the absence of hair on his chest and the presence of markings. Regier testified he believed Dvorak committed fraud by shaving the hair on his chest. Regier’s investigator confirmed his suspicions and he contends he met with Dvorak regarding the suspected perjury during August to December, 1976. Dvorak denies the conversations took place. Two hearing dates were set for January and February, 1977, to investigate the possibility of fraud, but postponements were granted and no hearings were rescheduled. Upon the district attorney’s motion, the appeal bond was vacated, the appeal was dismissed and Dvorak was sentenced to Lansing.
The record in Dvorak’s case reveals no indication Regier withdrew from his representation of the defendant after he suspected fraud and actively sought court investigation. Regier admits he intended to withdraw only if his suspicions of fraud were substantiated.
The hearing panel found clear and convincing evidence that Regier’s actions constituted misconduct and a violation of DR 4-101 because Regier, through his own initiative and during the existence of the attorney-client relationship, became aware of certain facts which would be detrimental to his client if revealed. He then revealed that information to two district judges. The hearing panel found the information to be a “confidence,” protected by the attorney-client privilege, which did not fall within the exception of DR 4-101(C). Additionally, the formal complaint alleged improper perfection of Dvorak’s appeal, although the panel report did not find a specific violation resulting from that conduct. The panel recommended Regier be indefinitely suspended from further practice of law.
The second complaint was initiated by Regier’s former client Frances Pederson, now Frances Eastman. Eastman lived with Larry Pederson for approximately a year and a half. In December, 1975, Pederson filed a replevin action against Eastman to recover personal property she was alleged to have in her possession. She consulted Regier who advised her she should initiate divorce proceedings to dissolve her alleged common-law marriage and resolve the personal property dispute. A petition for divorce was filed February 10, 1976. On December 10, 1976, a conference was held at the Sedgwick County Court House regarding the distribution of personal property belonging to Eastman and Pederson. Eastman testified she did not personally appear before the judge, but negotiations between Regier and Pederson’s attorney, Michael Silver, took place in the hall outside the courtroom. The Journal Entry in the Eastman-Pederson case filed by Silver on September 30, 1977, ordered Eastman to pay legal fees in the amount of $600. It was agreed that Regier was to forward to Silver half the money he received from Eastman, but no agreement was reached as to the method of payment. Eastman contends she sent $475 in checks to Regier and a $30 cash payment. Regier testified his records showed Eastman paid him $450 in checks and he denied receiving the cash payment. He admitted he failed to forward any of the money to Silver as agreed but stated he was trying to protect his own fees because he had represented some of the family in prior years and had had some difficulty recovering a fee. The money Eastman sent to Regier was divided up and half was placed in an envelope and attached to her file kept in Regier’s office.
In June, 1979, Silver contacted Regier, indicating he intended to file a garnishment action against Eastman to recover his fee. Regier told him he had the money and requested the action not be filed. Silver called him a few days later and told him the garnishment papers had gone out of his office without his knowledge. The garnishment action was filed June 12, 1979, and Silver recovered $54.15 from Eastman’s salary. Eastman was reprimanded by her employer and she eventually filed a complaint against Regier with the Wichita Bar Association. During the hearing, Regier admitted he kept money collected on behalf of his clients in cash form attached to the client’s file and did not maintain a bank account, for client funds.
The report of the hearing panel dated May 2, 1980, found Regier had mishandled his client’s funds in violation of DR 9-102(A). This is based upon Regier’s failure to properly disburse Eastman’s funds and the commingling of a portion of the last check Eastman sent. In addition, the panel found Regier had violated DR 6-101(A) because of his overall handling of the Eastman-Pederson divorce action. The panel recommended disbarment in light of these findings and Regier’s past conduct.
With respect to the Dvorak complaint, we find insufficient evidence to support the panel’s finding that Regier violated DR 4-101 by revealing secrets or confidences of his client. DR 4-101(A) states “ ‘confidence’ refers to information protected by the attorney-client privilege under applicable law . . . .’’K.S.A. 60-426 governs this privilege and it requires the matter be a communication “between lawyer and his or her client in the course of that relationship and in professional confidence . . . .” K.S.A. 60-426(1»). DR 4-101(A) defines a “se cret” as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Kansas law defines secrets as follows:
“[lit must be of a confidential character, and so regarded, at least by the client, at the time [of the disclosure], and must relate to a matter which is in its nature private and properly the subject of a confidential disclosure.” City of Wichita v. Chapman, 214 Kan. 575, 582, 521 P.2d 589 (1974).
Regier disclosed to the court that he believed his client had removed hair from his chest at the time of his appearance at the sodomy trial, as supported by his agent’s observations. This disclosure is not a confidential communication protected by the attorney-client privilege. Hair is a physical characteristic and a display of plaintiff’s chest hair could be compelled. United States v. Dionisio, 410 U.S. 1, 35 L.Ed.2d 67, 93 S.Ct. 764 (1973).
Further, although the definition of “secrets” is broader than that of confidences (see Callan and David, Disclosure of Client Misconduct, 29 Rutgers Rev. 332, 352-353 [1976]) we do not find Regier’s disclosure to fall within its reach. The disclosure here involves a physical characteristic rather than a confidential communication. The defendant’s chest was displayed in court. Its appearance on that day and on subsequent days is not, in this instance, a secret which the attorney has a duty to hold in confidence.
We are more concerned with Regier’s handling of the Dvorak appeal. Appellee’s first motion to dismiss, filed December 1,1976, was denied December 6, 1976. On the same date appellant’s motion to suspend was granted. A second motion to dismiss was filed by appellee on August 11, 1977, and the unopposed motion was granted September 12, 1977. Appellant’s pro se motion to reinstate the appeal was filed September 21, 1978, the State responded on October 10, 1978, and appellant’s motion was denied November 1, 1978.
DR 7-101(A)(2) and (3) state:
“A lawyer shall not intentionally:
(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 7-105.
(3) Prejudice or damage his client during the course of the professional relationship, except as required by DR 7-102(B).”
Regier clearly failed to carry out the appeal services for which he was hired. His actions regarding the suspected fraud should not have precluded the appeal. DR 7-101(A)(3) does not require termination of the attorney-client relationship when a lawyer takes action regarding past fraud under DR 7-102(B). Furthermore, in pursuing the appeal, DR 7-101(B)(2) allows an attorney to abandon an alleged error urged by his client, if he believes such conduct would be unlawful. Regier is in violation of DR 6-101(A)(3) which prohibits a lawyer from neglecting a legal matter entrusted to him.
With regard to the Eastman complaint, appellant contends the hearing panel goes beyond the formal complaint and respondent had no opportunity to defend himself against the charges not mentioned in the complaint. The formal complaint charged Regier with mishandling funds in violation of DR 9-102(A). In addition to a finding that DR 9-102(A) was violated, the panel found a violation of DR 6-101(A) arising from Regier’s handling of the Eastman-Pederson divorce.
It is well established that an attorney is charged with knowledge of the disciplinary rules regulating his or her profession. State v. Alvey, 215 Kan. 460, 524 P.2d 747 (1974). Additionally,
“ ‘[Wjhere 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.’ ” State v. Turner, 217 Kan. 574, 579-580, 538 P.2d 966 (1975).
State v. Alvey, 215 Kan. at 464; State v. Nelson, 206 Kan. 154, 476 P.2d 240 (1970).
The formal complaint in this case related Regier’s actions with respect to the divorce proceeding and the agreement that Regier would forward to Silver his portion of Eastman’s payment of attorney fees. The complaint alleged Regier had failed to maintain a separate client’s account as required by DR 9-102(A). This information constitutes sufficient notice of the basic factual situation out of which respondent could expect to be the subject of discipline.
Respondent argues the hearing panel’s recommendation of disbarment is too severe. Regier admits he is probably guilty of failing to properly disburse the funds in his possession, but believes public censure would suffice in this case. Disbarment was recommended in light of respondent’s past record (see State v. Phelps, 226 Kan. 371, 598 P.2d 180 [1979], cert. denied 444 U.S. 1045 [1980]) and because of the panel’s findings in the Dvorak matter, which was pending before this court at the time the Eastman complaint was heard by the panel.
A review of Regier’s past record reveals he voluntarily surrendered his license to practice law on June 1, 1963. His first application for reinstatement was denied and a second was filed January 5,1970. He was readmitted to the practice of law on June 24, 1970. This court is not bound by the findings and recommendations of the panel and we will examine the evidence and determine for ourselves the judgment to be entered. State v. Phelps, 226 Kan. at 379. We have considered Regier’s prior disciplinary record, his action in the Dvorak complaint in neglecting a legal matter entrusted to him in violation of DR 6-101(A)(3) and his action in the Pederson complaint of failing to maintain a separate client’s account as required by DR 9-102(A). We find his record and these infractions, cumulatively, serious enough to justify strict punishment but we find the panel’s recommendation of disbarment overly severe. We therefore find Max Regier should be suspended from the practice of law for an indefinite period. The costs of this action are assessed to the respondent.
It Is So Ordered This 6th day of December, 1980. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant, Rebecca Li Harrison, was convicted of aggravated robbery (K.S.A. 21-3427). The conviction stems from the robbery of a Town and Country Store in Wichita on May 28, 1979. The facts surrounding the robbery are not in dispute and essentially are as follows: On May 28, 1979, a State’s witness, who lived across the street from the store, noticed a red station wagon parked near the store. He saw the driver get out of the car, approach the store, and look in the window. The driver then got back in the car and left the store without entering. The witness saw the car return later that evening, at which time the car was again parked and this time the driver entered the store. An employee at Town and Country testified that at 10:45 p.m. defendant entered the store and demanded money. When the employee hesitated, defendant stated in substance, “Give me your . . . money or I’ll shoot your . . . guts out.” The defendant then raised her shirt revealing a white-handled object which the employee believed to be a gun. The employee handed the store’s money over to defendant who immediately left with the loot. The police, having obtained a description of the red station wagon, observed defendant’s vehicle parked in front of her residence. The station wagon was identified by the witness as the red station wagon previously observed that evening. The police then returned to defendant’s house. She was identified by the store employee as the woman who had just robbed her. Following defendant’s conviction, the court sentenced defendant to imprisonment for a period of five to twenty years and further denied her probation in accordance with K.S.A. 1979 Supp. 21-4618 on the grounds that a firearm was used in the commission of the robbery. The defendant appealed her conviction and the mandatory sentence.
Defendant’s first point on the appeal is that the trial court erred in refusing to permit her to introduce certain proffered evidence to prove the defense of compulsion. The trial court rejected the proffered evidence on the basis that it was insufficient as a matter of law to sustain the defense of compulsion under K.S.A. 21-3209. The evidence proffered by the defendant was substantially as follows: Defense counsel stated on the record that, if permitted, defendant would testify that on the evening in question, May 28, 1979, she was at a residence owned or rented by Phil Heath and that there were two other women present. Defendant would testify that Heath took her into his bedroom, produced a gun, and told her that he would use the weapon on her unless she committed the robbery in question. Defense counsel further stated that a subpoena had been issued for Heath but that the sheriff’s office had been unable to serve the subpoena. At the trial, defendant was permitted to expand her proffer to include additional testimony that defendant was fearful, not only for her own life, but also for the lives of her children if she did not complete the crime as demanded by Heath. Counsel also stated that at the time defendant returned from the Town and Country Store, Heath was present at the residence and actually received the money from the robbery.
The trial court refused to admit the proffered testimony on the grounds that there was no imminent danger established by the defendant as required by K.S.A. 21-3209 which states as follows:
“21-3209. Compulsion. (1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
The leading Kansas case on the defense of compulsion is State v. Milum, 213 Kan. 581, 516 P.2d 984 (1973). In Milum, we held that compulsion, under K.S.A. 21-3209, requires as an element a threat of the imminent infliction of death or great bodily harm in order to constitute a defense to a criminal charge and that a threat directed at some indefinite time in the future is not sufficient. In support of its position the court in Milum cited the general statement at 22 C.J.S., Criminal Law § 44 which sets forth the elements of the defense in the following language:
“ ‘The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed.’ ” p. 582.
In our judgment, Milum is controlling and dispositive of this case. The general rule followed throughout the country is that in order for the defense of compulsion to be established it must be shown that the accused was without a reasonable opportunity to escape or withdraw from the criminal activity. People v. Colone, 56 Ill. App. 3d 1018, 14 Ill. Dec. 592, 372 N.E.2d 871 (1978); Hill v. State, 135 Ga. App. 766, 219 S.E.2d 18 (1975); State v. Kearns, 27 N.C. App. 354, 357, 219 S.E.2d 228 (1975).
Under the proffered facts here, assuming that they are true, the defendant, having been threatened by Heath, left his house in her own car, drove away, and committed the robbery. There was nothing to prevent her from driving to the police authorities to report the threats made to her. The vague reference to her children is not sufficient to show that there was a present, imminent, and impending threat of direct or serious bodily injury to either herself or her children. She did not propose to testify that the children were in the custody of Heath at his house when she committed the robbery. Such testimony would have changed the factual situation and possibly made the defense of compulsion a factual issue for the jury. We hold that the trial court was correct in excluding the proffered evidence, because the proffered testimony of defendant would not, as a matter of law, establish the defense of compulsion under K.S.A. 21-3209, since the threat of death or serious bodily injury would not be imminent as required by that statute.
Defendant next maintains that the trial court erred in admitting into evidence her statement to the police officer admitting ownership of the red station wagon. It is her position that the admission infringed upon her constitutional protection against self-incrimination. In this case, the trial court conducted a full Jackson v. Denno hearing where the police officer testified that defendant was twice given the Miranda warnings and that during the questioning she appeared calm and knew what was going on. Defendant herself recalled being told at least once that she did not have to answer the police officer’s questions and she understood she did not have to respond. Under the totality of the circumstances, the trial court found that defendant’s statements were voluntarily and freely given after she had been advised of her Miranda rights. The court’s findings are supported by substantial evidence. There was no error in the admission of defendant’s statement concerning the ownership of the station wagon. State v. Tillery, 227 Kan. 342, 606 P.2d 1031 (1980).
Finally, defendant contends that the trial court erred in imposing a mandatory sentence pursuant to K.S.A. 1979 Supp. 21-4618, because a firearm was used in the perpetration of the robbery. Defendant’s argument is that, if a firearm was never fully exhibited during defendant’s confrontation with the store employee, the statute cannot be applied. Here the evidence was clear that the store employee observed what she identified as the handle of a gun. In addition, defendant threatened to shoot the employee unless the store’s money was handed over to defendant. This evidence was sufficient to support the finding of the district court that a firearm was used in the robbery. State v. Robertson, 225 Kan. 572, 574, 592 P.2d 460 (1978).
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The opinion of the court was delivered by
Holmes, J.:
This appeal is from an order of the district court entered in a quo warranto action filed by the State of Kansas, on behalf of the Board of Regents, seeking a determination by what authority, if any, the City of Kansas City, Kansas, sought to require the Board of Regents to obtain a building permit and follow Kansas City building codes in the construction of a new facility at the University of Kansas Medical Center. The Board also sought equitable relief by way of a restraining order to prevent the City from enforcing its building codes. The trial court held that the Board was required to obtain a building permit and comply with the local building codes. This appeal by the Board of Regents followed. The trial court also held that as the construction was nearly complete, its ruling would only apply prospectively to future construction. The City has filed a cross-appeal from that ruling of the court.
The action was heard by the trial court upon an agreed statement of facts. In 1975, the University of Kansas embarked upon a program to build a radiation therapy facility on the campus of the Kansas University Medical Center located within the city limits of Kansas City. The proposed construction and equipment to be utilized therein would cost in excess of $3,000,000.00. Two million dollars were appropriated by the Kansas legislature and approximately one million more was to be received through a grant from the federal government. The proposed radiation treatment facility would be utilized in the treatment of private patients who will pay for the services and as a part of the educational system of the Kansas University School of Medicine. In December, 1977, after funding had been assured, bids solicited and construction contracts let, the chief building inspector of Kansas City advised the general contractor that a building permit and various other city permits would be required before construction could commence. In order to obtain a building permit the plans and specifications must be approved by the City, and the construction must comply with the building, plumbing, electrical and mechanical codes adopted by the City. The proposed facility, as is true with the entire Medical Center, would be dependent upon the City’s utilities for water and electricity, would tie into the City’s sanitary and storm sewer systems and would rely upon the City for fire protection. The Board of Regents declined to obtain the required permits and filed this action on December 13, 1977, seeking a temporary restraining order and a determination of whether the requirements for a building permit and compliance with the City’s building codes are valid. An ex parte restraining order was issued against the City on the same day. No attempt was made by the City to set aside the restraining order; construction of the radiation therapy facility has been completed and it is in operation at the Medical Center. Following the filing of briefs and various delays which occurred for one reason or another, the matter finally came to trial on February 16,1979, and the court, on February 27,1979, issued its memorandum decision in favor of the City.
At the outset we deem it advisable to address a procedural issue raised by the City in its cross-appeal. It is the City’s contention that the district court erred in not finding that the case should have been filed by the Board of Regents rather than by the State of Kansas on the relation of the Attorney General. It is argued that the real party in interest is not named and the action is improper, having been brought in the name of the State of Kansas.
K.S.A. 60-217(a) provides in pertinent part:
“Every action shall be prosecuted in the name of the real party in interest .. . and when a statute so provides, an action brought for the use or benefit of another shall be brought in the name of the state of Kansas.”
K.S.A. 76-713 provides in part:
“The board of regents may sue in its own name or in the name of any state educational institution, or may authorize suit to be brought by the chief executive officer of any state educational institution in the name of such state educational institution. . . . The attorney general, or an attorney designated by the attorney general, shall represent the board of regents and any state educational institution in all litigation.”
There being no statute authorizing an action by the Board of Regents to be brought in the name of the State of Kansas, it is the City’s position there is no authority for the action to be brought by the State of Kansas. The City relies upon Torkelson v. Bank of Horton, 208 Kan. 267, 491 P.2d 954 (1971), wherein this court stated:
“One standard frequently applied is that the real party in interest is the one entitled to the fruits of the action, and the phrase ‘real party in interest’ is grammatically quite capable of that meaning.” 208 Kan. at 270.
In Torkelson we also stated:
“The requirement that an action be brought by the real party in interest has as one of its principal purposes the protection of the defendant from being repeatedly harassed by a multiplicity of suits for the same cause of action so that if a judgment be obtained it is a full, final and conclusive adjudication of the rights in controversy that may be pleaded in bar to any further suit instituted by any other party.” p. 270.
It is true, and the statutes so contemplate, that in actions involving the Board of Regents it is usually named as such or the individual members are made parties in their collective capacity as the Board of Regents. See, e.g., Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); McCoy v. Board of Regents, 196 Kan. 506, 413 P.2d 73 (1966); Murray v. State Board of Regents, 194 Kan. 686, 401 P.2d 898 (1965); The State, ex rel., v. Regents of the University, 55 Kan. 389, 40 Pac. 656 (1895). The Board of Regents is a governmental agency created by the legislature at the specific direction of the Kansas Constitution, article 6, section 2(b). As such it is bound by any decision brought on its behalf in the name of the State of Kansas, and there is no danger of harassment of or the filing of a multiplicity of suits against the defendant. In addition, the action was brought by the attorney general who is the person designated by K.S.A. 76-713 to represent the Board of Regents in all litigation. Considering the purpose of the real party in interest statute, the trial court did not commit error in refusing to dismiss the action for failure of it to be filed in the name of the “Board of Regents,” the name of the institution involved, or the chief executive officer thereof. The procedural point raised by the City in its cross-appeal is without merit.
We now turn to the central issue before the court. Can the City of Kansas City require the Board of Regents to obtain a building permit and conform to its building codes for construction at the University of Kansas Medical Center? The State makes several arguments in support of its position that the construction should be free of any requirements to obtain a building permit. Among them are: (1) the Board of Regents as an agency of the state is a superior sovereign to the city and not subject to local regulation; (2) school construction is subject to a pervasive state system of planning and construction which precludes local interferences therewith; (3) that an agency of the state, when engaged in a governmental function as opposed to a proprietary one, is immune from local regulation; (4) the operation of and construction at the Medical Center is one of statewide interest as opposed to local interest and therefore does not concern local affairs and government; and (5) if local regulations may be applicable in some cases, then each individual case should be judged upon its own merits by a balancing test, and any such test would weigh heavily in favor of the State and against the City in this particular instance. The balancing test doctrine is one that has been adopted in several states in land use or zoning cases and was recently adopted by the Kansas Court of Appeals in a zoning case. Brown v. Kansas Forestry, Fish and Game Commission, 2 Kan. App. 2d 102, 576 P.2d 230 (1978).
The City, on the other hand, in support of its position contends: (1) the Board of Regents is not a superior sovereign as both are created by constitutional provisions and that the home rule amendment (article 12, section 5) of the Kansas Constitution grants greater sovereignty to the City; (2) the home rule amendment grants authority to the City to require compliance with its building permit and code ordinances; (3) the proposed construction is a matter of local affairs rather than one of statewide concern; (4) that the Board of Regents by its use of utility, sewer and fire services of the City has consented to regulation by the City; (5) that the State does not have available manpower to insure compliance with its own building codes; and (6) that if a balancing test such as that adopted in Brown is applied, it weighs heavily in favor of the City.
While a lengthy dissertation on all the various theories of the parties might provide the substance for an extensive law review article, time does not permit us to indulge ourselves in such an endeavor and the decision hereafter reached does not require it. The principal argument by the City in support of its position is that under its home rule powers granted by the Kansas Constitution, it can enforce its building codes upon state agencies, including the Board of Regents.
Article 12, section 5, of the Kansas Constitution provides in part:
“(b) Cities are hereby empowered to determine their local affairs and government .... Cities shall exercise such determination by ordinance passed by the governing body . . . subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, [and] to other enactments of the legislature applicable uniformly to all cities ....
“(d) Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government.” (Emphasis supplied.)
Before the home rule amendment became effective in 1961, the state legislature possessed all legislative power with respect to municipal corporations except as its exercise was prohibited by the federal and state constitutions. Therefore, the power which the Kansas legislature exercised over the cities was plenary. The legislature granted a certain amount of autonomy to the city governments and the system worked well for years. As the cities grew, however, new needs for city regulation of various activities became necessary and, increasingly, assistance from the legislature was sought. As a result, the legislature was spending a great deal of time dealing with requests from various city officials for legislation that would enable various city governments to regulate a seemingly endless variety of local problems. The amendment was intended to do away with the need for special legislation by eliminating municipal reliance upon enabling acts. “Home rule recognizes the desirability of local initiative in solving local problems created by the proliferation of municipal services.” Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 654 (1972). For a comprehensive discussion and analysis of the application of the home rule amendment see Claflin v. Walsh, 212 Kan. 1, 509 P.2d 1130 (1973).
There is no question that cities in Kansas may pass ordinances setting minimum standards for construction projects, including the adoption of building, mechanical, plumbing, electrical and similar codes. The State, on the other hand, has adopted comprehensive building codes of its own that are mandatory in the construction of all school buildings and, apparently, sometimes conflict with the codes adopted by Kansas City. Do such statutes preclude local municipalities from enforcing local building codes which are or may be in conflict therewith? We think so.
In 1972, the state legislature adopted a comprehensive fire safety and prevention act which prescribes minimum standards for school construction. K.S.A. 31-132 et seq.
K.S.A. 31-144(a) provides:
“(a) As used in this act, ‘school building’ means any building or structure operated or used for any purpose by, or located upon the land of, any school district, community junior college district, area vocational-technical school, institution under the state board of regents or any private or nonpublic school, college or university, whether or not operated for profit.”
K.S.A. 31-150, prior to amendment in 1978, provided:
“(a) The construction of all school buildings shall comply with the requirements of the 1970 edition of the uniform building code, volumes I and II of the international conference of building officials. All electric wiring shall conform to requirements of the 1971 issue of the national electric code of the national fire protection association. Minimum plumbing requirements shall meet the 1970 edition of the uniform plumbing code issued by the international conference of building officials. The construction of school buildings shall include reasonable provision for making buildings and facilities accessible to, and usable by, the physically handicapped, as approved by the state architect. No contract shall be let for the erection of any school building, and it shall be illegal to pay out any public funds for the erection of a school building until the plans for such building shall have been submitted to the state architect and approved as to all the requirements of this section.”
in 1978 and 1979, the statute was amended to bring it in line with recently updated codes together with additional requirements, including a mechanical code.
K.S.A. 1979 Supp. 31-150 provides in part:
“(a) Except as otherwise provided in subsection (b), the construction of school buildings shall comply with the requirements of the 1976 edition of the uniform building code, volume I, and the 1976 edition of the uniform mechanical code, of the international conference of building officials. All electric wiring shall conform to requirements of the 1975 issue of the national electric code of the national fire protection association. Minimum plumbing requirements shall meet the 1976 edition of the uniform plumbing code issued by the international conference of building officials.”
K.S.A. 1979 Supp. 31-150a, originally adopted in 1974, makes it a class B misdemeanor for any violation of any provision of the act. We are advised that Kansas City has a similar penal ordinance mandating compliance with its local building codes. Therefore, if the Board of Regents is subject to local building codes which are in conflict with state building codes, then it is subject to city criminal penalties for following the state code or to state criminal penalties for following the city code. Such a situation would be intolerable.
Art. 6, § 2(b) of the Kansas Constitution provides:
“(b) The legislature shall provide for a state board of regents and for its control and supervision of public institutions of higher education. Public institutions of higher education shall include universities and colleges granting baccalaureate or postbaccalaureate degrees and such other institutions and educational interests as may be provided by law. The state board of regents shall perform such other duties as may be prescribed by law.”
Thus, we are faced with the question whether the home rule amendment, art. 12, § 5, authorizes Kansas City to enforce its building permit and code ordinances upon the Board of Regents who derive their authority through legislative action mandated by art. 6, § 2(b). At the outset it must be noted that the fire safety and prevention enactment of 1972 is not uniformly applicable to all cities. K.S.A. 31- 144(h) makes a distinction between first and second class cities as opposed to all other cities when it comes to inspection of school buildings. Such a provision in one section of the overall enactment requires a determination under our holding in City of Junction City v. Griffin, 227 Kan. 332, 607 P.2d 459 (1980), that the act is not uniformly applicable to all cities.
While there have been numerous cases decided by our appellate courts since the passage of the home rule amendment, there are few that have dealt with the problems which arise when a municipality finds itself in conflict with the State or one of its agencies. See State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974). Most of our decisions under the home rule amendment have involved the resolution of conflicts between local ordinances and state statutes as they affect third parties, usually individual members of the public caught up in the apparent conflict. How then do we resolve a conflict between Kansas City and the Board of Regents when the local ordinance conflicts with affirmative duties and requirements placed upon the Board of Regents by state statutes?
In the construction of state buildings, the area of school construction appears to be the only one in which the legislature has mandated, statewide compliance with specific building codes. The adoption by the state legislature of comprehensive building codes would indicate that the legislature considers the construction of schools to be one of statewide importance as opposed to the local affairs of a municipality in seeking to control construction within its city limits. Insofar as institutions of higher learning under the control of the Board of Regents are concerned, we agree. It has been stipulated by the parties that the function of the radiation therapy facility is both as a hospital and a school. However, it must be conceded that the primary purpose of the Kansas University Medical Center, and all of its components, is to provide medical schooling and training to students. However, by reason of its nature as a functioning hospital the Center is not only subject to state construction codes applicable to school buildings but also to both state and federal statutes and regulations applicable to hospitals. There can be no doubt that continued expansion and construction of facilities at the Medical Center are of concern and interest to the governing officials of Kansas City and that is as it should be. The City is entitled to and should be concerned with the activities at the Medical Center. Utilities, fire protection and sewer services are some of the city services and functions affected by the existence of the Medical Center. As such, the construction is one of local concern but we think not one which is limited to local affairs of the City as contemplated by the home rule amendment. The Medical Center furnishes education and hospital services to citizens from all areas of the State of Kansas as well as from without the state and, along with all other institutions of higher learning, is under the control of the Board of Regents. The activities of the Medical Center are statewide in character and while it exerts a great impact on Kansas City, its functions are not of strictly local concern. Due to the statutes requiring statewide uniformity in the application of the various building codes to construction projects at the various institutions of higher learning under the control of the Board of Regents, such construction does not fall within the purview of
local affairs. It would be impossible to draw a line delineating between local affairs and those which encompass an expanded or statewide application which would be applicable to all situations which might arise. As stated by one prominent author: “No ordinance deals with an exclusively local matter and no statute regulates a matter of exclusively state-wide concern. Instead, the interests of the municipality and the state are nearly always concurrent.” Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 662 (1972). We also recognize that the same author does not recommend the approach and conclusion we reach today. Our decision, however, is limited to the parties and factual situation before us.
Similar conflicts have been before the courts of several states and generally have been resolved favorably to the board of regents or other state educational authority. In Board of Regents of Universities, etc. v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (1960), the City of Tempe attempted to impose its building codes and regulations on proposed construction at Arizona State University located within the city limits of Tempe. After setting forth the controlling constitutional and statutory provisions, the court states:
“We think it clear from the foregoing Constitutional and statutory provisions that the Board of Regents and the City of Tempe each has the power to regulate the construction and maintenance of buildings, within the limits of its authority. We are thus not faced with the situation where only the City, and not the Board of Regents or University, may validly prescribe building ordinances or regulations.
“The problem remains to resolve the conflict presented by the Board’s and the City’s assertions of apparently overlapping powers over university construction. It is not disputed that the ultimate power to resolve this controversy rests in the Legislature which concededly may assign exclusive jurisdiction to the Board or to the City. Nor does either party urge that the Legislature has answered this problem expressly. Both rely on the Constitution generally, the intention of the Legislature as gleaned from the applicable statutes, and on the case law.
“The Board of Regents contends that it is an agency of the State and is thereby immune from regulation by a municipal corporation. The City argues that the Board is a corporate instrumentality of the State, but is not itself the State, and has not been exempted from operation of the broad police powers delegated by the State to the City.”
“The Board of Regents is vested by our Constitution with the ‘general conduct and supervision’ of the State University (Article XI, Sections 1,2,5). By statute the Board has ‘jurisdiction and control over the university’ and may ‘[ejnact ordinances for the government of the institutions under its jurisdiction’ (A.R.S. §§ 15-724, 15-725). It has also been authorized to undertake specific construction projects at the universities and college (e.g.: Laws 1959, Chapters 114, 115, 116; Laws 1952, Chapters 139, 140; Laws 1949, Chapter 104, as amended; Laws 1958, Chapter 2).
“The Board of Regents is, thus, empowered to promulgate and enforce the necessary regulatory measures which the City here assigns exclusively to itself. Nor do we find expressed in our statutes an intention to restrict in any way the powers of the Board over university construction. The fact that certain agencies, including the Board of Regents, have been specifically exempted from supervision by the State Planning and Building Commission (A.R.S. § 41-571.14) reasonably implies not that control has been transferred to or confirmed in municipalities, but that these agencies are not engaged in activities requiring any supervision or, more applicable here, that the responsibility for and supervision of planning and building are more appropriately delegated to the agencies themselves than to a separate state commission.” pp. 305, 310.
The court goes on to hold that the Board of Regents while performing a governmental function is not subject to city control in its construction at Arizona State University.
In Hall v. City of Taft, 47 Cal. 2d 177, 302 P.2d 574 (1956), a building contractor brought an action to enjoin the city from enforcing its building ordinance against him in connection with the construction of a public school building. The court held that the public schools of the state were a matter of statewide rather than local or municipal concern. The court also held that the state had completely occupied the field by general laws and that the city could not enact ordinances in conflict therewith. See also Regents of University of California v. City of Santa Monica, 71 Cal. App. 3d 130, 143 Cal. Rptr. 276 (1978).
The foregoing cases are representative of many jurisdictions that hold under a variety of different statutes and constitutional provisions and for a variety of reasons that a city may not interfere with construction of state schools when that construction is governed by comprehensive state statutes. Most of the cases depend upon the application of one of the traditional tests of superior sovereign, governmental-proprietary functions, or power of eminent domain. There are also a number of cases involving a variety of statutes, constitutional provisions and rationale which hold directly to the contrary. See Port Arthur Independent Sch. Dist. v. City of Groves, 376 S.W.2d 330 (Tex. 1964); Edmonds Sch. Dist. v. Mountlake, 77 Wash. 2d 609, 465 P.2d 177 (1970).
In 1 Antieau, Municipal Corporation Law § 3.32 (1980), the author states:
“In most of the cases that have arisen control over public facilities has been ruled a state concern. Referring to the home rule amendment, the Nebraska Court has said: ‘The right of the state to legislate upon educational affairs has not been limited by the Constitution. Education ... is preeminently a state affair.’ The Minnesota Court has ruled that a home rule charter provision requiring approval of contemplated buildings by a city planning commission is inapplicable to new school buildings erected by the board of education.”
The same author in § 5.35 states:
“The exercise of municipal power is ineffective and void when it conflicts with state statutes or regulations in the non-home rule states, as well as in the legislative home rule states. In the constitutional home rule states, the exercise of municipal power is void when it conflicts with state laws or regulations on matters of state-wide or general concern.”
Thus, regardless of the reasoning of the various courts or the statutory or constitutional provisions in any particular case, the underlying rationale seems to be the same. That is, municipal regulation of school construction is unduly burdensome when such regulation conflicts with a statewide building code administered by the state authority responsible for such construction.
In Rutgers v. Pituso, 60 N.J. 142, 286 A.2d 697 (1972), the New Jersey Supreme Court in a land use or zoning case refused to apply any of the traditional tests and adopted a balancing of interests test which has become increasingly popular with the courts. In Rutgers the university sought to construct a college dormitory which would not comply with the local zoning regulations of Piscataway Township wherein the dormitory would be located. While the court held in favor of the university, it did so after balancing the interests of the state in its operation of the university against the local interests of the township. The court stated:
“[I]t is apparent that municipal zoning regulation of state university property can, and in the case before us certainly would, very materially interfere with the development and growth of the institution, for the benefit of all the people of the state, as planned and felt necessary by the educational authorities. As the trial court commented: ‘The absence of immunity would result in local municipalities controlling virtually every decision concerning physical development of the University.’ ....
“The question of what governmental units or instrumentalities are immune from municipal land use regulations, and to what extent, is not one properly susceptible of absolute or ritualistic answer. Courts have, however, frequently resolved such conflicts in perhaps too simplistic terms and by the use of labels rather than through reasoned adjudication of the critical question of which governmental interest should prevail in the particular relationship or factual situation.”
“The rationale which runs through our cases and which we are convinced should furnish the true test of immunity in the first instance, albeit a somewhat nebulous one, is the legislative intent in this regard with respect to the particular agency or function involved. That intent, rarely specifically expressed, is to be divined from a consideration of many factors, with a value judgment reached on an overall evaluation. All possible factors cannot be abstractly catalogued. The most obvious and common ones include the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests. ... In some instances one factor will be more influential than another or may be so significant as to completely overshadow all others. No one, such as the granting or withholding of the power of eminent domain, is to be thought of as ritualistically required or controlling. And there will undoubtedly be cases, as there have been in the past, where the broader public interest is so important that immunity must be granted even though the local interests may be great. The point is that there is no precise formula or set of criteria which will determine every case mechanically and automatically.” pp. 150, 152-153.
Kansas City, in addition to the home rule amendment, relies heavily on Rutgers and the recent zoning case of Brown v. Kansas Forestry, Fish and Game Commission, 2 Kan. App. 2d 102, 576 P.2d 230 (1978). In Broum the state forestry, fish and game commission purchased two lots in 1975 in the middle of a twenty-three lot subdivision near Manhattan which had been zoned for single family residences. The commission intended to use the land for a public parking lot, complete with toilet facilities, for the convenience of its patrons using a fishing and recreation facility on the Big Blue River. The court reviewed some of the common tests to be applied, such as the “superior sovereign test,” “the governmental-proprietary test,” and the “eminent domain test,” and rejected them all in favor of the adoption of a “balancing of interests” test as set forth in Rutgers. The Court of Appeals in Brown stated:
“In our own analysis we start with the premise that the legislature has not spoken directly on the subject, any more than has our Supreme Court. Under K.S.A. 19-2901, counties are given the power to zone ‘for the purpose of promoting the public health, safety, morals, comfort, general welfare and conserving the values of property throughout that portion of any county zoned under the terms of this act . . . .’The county zoning board, under K.S.A. 19-2906, has‘power to determine, restrict and regulate the area within which trade, industries and recreations may be conducted . . . .’On the other hand, under K.S.A. 32-241, the commission is authorized to acquire land for public forestry, recreational grounds and/or game preserves and ‘to provide for keeping, maintaining .and improving such public forestry, recreational grounds, fish and game preserves; to establish such public forestry, recreational grounds, fish and game preserves at such place or places within this state as shall, in the judgment of the commission, be most suitable to carry out the intents and purposes of this act . . . .’ There is nothing in the statutes which says the commission is subject to local zoning, nor is there anything which grants it immunity.
“We therefore regard the question as open in this state. Given the choice, we think this case aptly illustrates why the balancing of interests test better promotes the public’s interest than any of the traditional mechanical tests.
“Dealing with the specifics of this case, we are not talking about establishing a public hunting or fishing facility in an area zoned for agriculture. The merits of such a case appear clear, at least on the surface. Here we are dealing with an all-night parking lot with toilet facilities in the middle of a residential subdivision. The commission anticipates that the recreational facility will be used at a rate of 10,000 man days per year. At least some of those users will employ the proposed parking lot. The merits of this proposal are not nearly so clear. If the facts were fully developed at an evidentiary hearing the location of this particular facility in this particular location might prove to be an arbitrary decision of the commission, unnecessarily impinging on the legitimate expectations of the neighboring landowners and upsetting a carefully conceived local land use plan. On the other hand, it might turn out to be a wholly necessary and beneficial use far outweighing any local concern, for which accommodation should be made by any reasonable zoning body.
“If we look at the factors suggested as relevant by the Rutgers court we find: (1) The instrumentality seeking immunity is a state agency, and its judgment is entitled to considerable deference. (2) The general function being performed— promoting recreation — is one of recognized public utility but hardly on a level of importance with public education. The specific use, providing parking space near but not in a recreation area, is of a more marginal public interest. (3) While there is public interest in the proposed use in that some people will find this parking lot more convenient than other available lots, the segment of the population affected is relatively small. (4) Regulation, if rezoning is refused, would have the effect of requiring the parking lot to be located in some area other than a residential subdivision. Such a move might make the lot less convenient, but would probably not substantially impair the usefulness of the recreation area. (5) The proposed use would, prima facie at least, have a substantial adverse impact on the surrounding householders and on the existing land use plan.” pp. 112-113.
Kansas City urges that if it does not have absolute power under the home rule amendment, then we should adopt a similar “balancing of interests” test in the determination of whether its building codes apply to the Board of Regents in this case and then makes a strong argument to the effect that the balance weighs in favor of the City. The Board of Regents makes an equally strong argument that in the adoption of such a test it would weigh heavily in favor of the Board. Whatever may be the merits of such a balancing of interests approach to the use of land by a state agency under city or county zoning laws, we do not feel such a test would be feasible or practical as applied to local building codes and proposed construction by the Board of Regents. For example, the 1980 session of the Legislature authorized and appropriated funds for the Board of Regents to undertake capital improvements in Kansas City, Lawrence, Manhattan, Wichita, Hays and other cities where institutions of higher learning under the control of the Board are located. To say that each of these projects should be delayed until such time as a final court determination could be made whether local building codes were applicable would not only unreasonably delay construction but in these days of uncontrolled inflation might doom the projects altogether. We decline to adopt such a position in this case.
We hold that the Board of Regents, being subject to the comprehensive building construction codes and legislation enacted by the legislature and being charged with the responsibility for all institutions of higher learning in the state and the application of such building codes uniformly thereto, is not required to obtain a building permit or be controlled by the Kansas City building codes for construction at the Kansas University Medical Center. That is not to say that there should not be cooperation between the Board of Regents and the City officials and we would assume that such cooperation would be forthcoming and will be beneficial to both. Indeed, K.S.A. 31-137 places a duty upon the City to enforce compliance with the provisions of K.S.A. 31-132 et seq. It is obvious that the two have worked in harmony in many areas through the years and that spirit of mutual respect and consideration of one for the other should, and we assume will, continue. In closing, we deem the following quote from Rutgers v. Pituso appropriate:
“It is, however, most important to stress that such immunity in any situation is not completely unbridled. Even where it is found to exist, it must not, as this court said in Washington Township v. Village of Ridgewood, supra (26 N.J. at 584-586, [141 A.2d 308]), be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests. This rule must apply to the state and its instrumentalities as well as to lesser governmental entities entitled to immunity. For example, it would be arbitrary, if the state proposed to erect an office building in the crowded business district of a city where provision for off-street parking was required, for the state not to make some reasonable provision in that respect. And, at the very least, even if the proposed action of the immune governmental instrumentality does not reach the unreasonable stage for any sufficient reason, the instrumentality ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions in order to minimize the conflict as much as possible.” 60 N.J. at 153-154.
We have carefully considered all of the arguments and authorities of both parties but in view of our holding, there would be nothing gained by extending this opinion further.
The judgment of the trial court is reversed and the case remanded with directions to enter judgment in favor of the plaintiff. | [
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The opinion of the court was delivéred by
Prager, J.:
This case was originally filed in the United States District Court for the District of Kansas and comes to this court on certification from that court under authority of the Uniform Certification of Questions of Law Act (K.S.A. 1979 Supp. 60-3201 et seq.). This action was filed following a settlement agreement in a workmen’s compensation proceeding. Plaintiff, Ray R. Yocum, fractured his left hip on October 16, 1974, in an accident that arose out of and in the course of his employment with defendant, Phillips Petroleum Company. Plaintiff’s injury was treated by Robert M. Drisko, M.D., who was acting as an agent of the defendant. Pursuant to the workmen’s compensation act, a claim was filed by the plaintiff against Phillips Petroleum Company, as employer and self-insurer.
Plaintiff was not represented by legal counsel on his claim, but did receive advice and guidance on this matter from the defendant. On September 20, 1976, plaintiff and defendant entered into a settlement agreement, final receipt, and release of liability for plaintiff’s compensation claim. This agreement was based on the assumption that plaintiff had a scheduled injury under K.S.A. 1974 Supp. 44-510d and provided for a 15% permanent partial disability rating for loss of use of the left leg in accordance with Dr. Drisko’s final report. This rating provided workmen’s compensation to plaintiff in the amount of $2,258.42. According to plaintiff, his injury qualified him to be classified as having a general bodily disability which would have entitled plaintiff to compensation for permanent partial disability in the sum of $16,989.06. In his complaint, plaintiff alleged that he was fraudulently induced to enter into the settlement agreement as a result of his reliance on misrepresentations concerning his disability rating made by defendant through its agents and employees. Plaintiff sought actual and punitive damages for defendant’s fraudulent misconduct. Plaintiff prayed for actual damages in the amount of $214,730.04 plus interest and punitive damages in the amount of $1,000,000. For the purpose of determining the question of law certified to this court, we will assume that the facts and allegations set forth in plaintiff’s complaint are true. We will further assume that the remedy afforded plaintiff under K.S.A. 1978 Supp. 44-528 to have the settlement agreement and release set aside for fraud is available to plaintiff.
Defendant Phillips moved to dismiss plaintiff”s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the proposition that plaintiff was provided with a remedy for his cause of action through the provisions of K.S.A. 1978 Supp. 44-528 which declared, in substance, that an award may be modified by the workers’ compensation director where it has been obtained by fraud, and that this statute provided plaintiff an exclusive remedy under the Kansas Workmen’s Compensation Act, thus barring a common-law action to recover damages for the fraud. Counsel submitted briefs on the motion to dismiss and, on March 21, 1979, the Honorable Earl E. O’Connor granted the motion and dismissed the action. Judge O’Connor ruled that 44-528 provided the exclusive remedy for attacking a compensation award on the basis of fraud. Plaintiff then filed a motion for reconsideration. After the hearing, Judge O’Connor again sus tained the motion to dismiss but allowed time for the plaintiff to consider either appealing to the Tenth Circuit, United States Court of Appeals, or certifying the question to the Kansas Supreme Court. Plaintiff selected the latter alternative and that election has brought the parties before this court.
The question of law certified for our determination is this: Under the stipulated factual circumstances set forth above, does K.S.A. 1978 Supp. 44-528 provide the exclusive remedy available to plaintiff, so as to bar him from proceeding against his employer in a common-law action for fraud? Before considering the contentions of counsel, we should first review the applicable provisions of the Kansas Workmen’s Compensation Act. K.S.A. 1978 Supp. 44-501 provided in part as follows:
“44-501. The obligation; burden of proof; defenses. If in any employment to which the workmen’s compensation act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his or her employer shall be liable to pay compensation to the workman in accordance with the provisions of the workmen’s compensation act. . . . Except as provided in the workmen’s compensation act, no such employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable thereunder . . . .” (Emphasis supplied.)
K.S.A. 1978 Supp. 44-528 provided in part as follows:
“44-528. Review, modification, reinstatement or cancellation of awards, (a) Any award or modification thereof agreed upon by the parties, whether said award provides for compensation into the future or whether it does not, may be reviewed by the director for good cause shown upon the application of the workman, employer, dependent, insurance carrier or any other interested party. . . . The director shall hear all competent evidence offered and if he shall find that the award has been obtained by fraud or undue influence . . . the director may modify such award, or reinstate a prior award, upon such terms as may be just by increasing or diminishing the compensation subject to the limitations provided in the workmen’s compensation act.” (Emphasis supplied.)
Plaintiff contends that the above statutes are not applicable to bar his common-law action for fraud, because the injury suffered by plaintiff is not a compensable injury under the workmen’s compensation act. In support of this contention, the plaintiff maintains that the defendant’s fraud did not “arise out of and in the course of employment,” and was intentional rather than accidental, as required by 44-501. Plaintiff argues that the injury was not a secondary injury, since it was not a natural consequence flowing from the first injury. Plaintiff further argues that 44-528 does not bar his action, because it does not specifically purport to limit a worker’s common-law right to recover for fraud. Plaintiff emphasizes that he is not seeking to recover only the difference between the amount of compensation which he should have received under the proper classification and the amount which he did receive as the result of defendant’s fraud. Rather, plaintiff seeks damages for the fraud which include other elements of actual damages and punitive damages in addition to the amount of workmen’s compensation which he lost.
Before considering the specific question presented, it would be helpful to review prior Kansas case law on the subject of the exclusivity of remedy under the workmen’s compensation act and the applicability of the provision for award modification because of fraud, as provided by 44-528. In Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78 (1946), this court reviewed the purpose and origin of workmen’s compensation statutes, stating as follows:
“These acts are largely the outgrowth of modem industrial life. They give recognition to a broad social obligation, in furtherance of sound public policy. The public has come to realize that in many cases an injured employee engaged in a hazardous employment will be unable to. establish actionable negligence on the part of the employer, but that it is unjust to deny relief to the employee on that account. For this and similar reasons, workmen’s compensation acts have shifted from the employee to the industry and indirectly to the general public certain burdens incidental to modem industrial operations (71 C.J. 242-249). Compensation is thus provided for injuries by accident arising out of and in the course of the employment, regardless of any showing of negligence on the part of the employer. On the other hand, the amount of compensation so provided is in many cases substantially less than might be secured by the injured employee in a common-law action, where the employer’s negligence is established. There is thus a sort of balancing of benefits in the common interest. Some employees may receive less compensation for injuries received than they would have been able to recover in a common-law action, while many other employees will receive benefits which they otherwise would not be able to receive because of the inability to establish the employer’s negligence.” (p. 84.)
Other designated purposes of the workmen’s compensation act include placing the burden of accidental injuries in employment upon the industries themselves, rather than upon the individual employer (Green v. Burch, 164 Kan. 348, 355-56, 189 P.2d 892 [1948]) and to provide a simple and efficient means of providing compensation to the injured worker while avoiding litigation. Souden v. Rine Drilling Co., 150 Kan. 239,241,92 P.2d 74 (1939); Walz v. Missouri Pac. Rld. Co., 130 Kan. 203,285 Pac. 595 (1930). The act is to be liberally construed to effectuate its purpose. Ours v. Lackey, 213 Kan. 72, 79, 515 P.2d 1071 (1973); Craig v. Electrolux Corporation, 212 Kan. 75, 76-77, 510 P.2d 138 (1973); and Green v. Burch, 164 Kan. at 356.
The workmen’s compensation law has also been held to be contractual in nature, rather than establishing tort liability, with the terms and provisions of the statute being incorporated into the employment contract. Houk v. Arrow Drilling Co., 201 Kan. 81, 91, 439 P.2d 146 (1968); Carter v. State Department of Social Welfare, 184 Kan. 825, 828, 339 P.2d 5 (1959); Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, Syl. ¶ 1, 65 P.2d 284 (1937); Chappell v. Morris & Co., 118 Kan. 210, 212, 235 Pac. 117 (1925); Moeser v. Shunk, 116 Kan. 247, 251, 226 Pac. 784 (1924). The employee, as well as the employer, is bound by the rules and procedures set forth in the act, Wilburn v. Boeing Airplane Co., 188 Kan. 722, 729, 366 P.2d 246 (1961); Walz v. Missouri Pac. Rld. Co., 130 Kan. 203; and Chappell v. Morris & Co., 118 Kan. 210.
Once it is determined that the employment relationship is covered by the workmen’s compensation act, the rights and liabilities of the parties are determined thereunder. Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273. The act is considered to be substitutional rather than cumulative and supplemental, and, therefore, provides the exclusive remedy for the injured worker. McRoberts v. Zinc Co., 93 Kan. 364, 367, 144 Pac. 247 (1914). In Duncan v. Perry Packing Co., 162 Kan. at 85, this court discussed the issue of exclusivity and noted:
“Our workmen’s compensation act (G.S. 1935,44-501 to 44-565, ch. 44, art. 5, as amended) thus establishes a broad system covering all injuries by accident within its purview. And the act specifically provides that ‘save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act’ (G.S. 1935, 44-501). Consonant with this specific provision and in harmony with the whole purpose and tenor of the act, we have repeatedly held that ‘workmen’s compensation act establishes its own procedure and furnishes a remedy which is substantial, complete and exclusive, from the inception of the claim to final judgment thereon’ [citations omitted].”
It is well settled that the workmen’s compensation act provides the only remedy for injuries which are encompassed within its scope. Bitnoff v. Southwest Rendering, 223 Kan. 334, 336, 573 P.2d 1033 (1978); Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, Syl. ¶¶ 1, 2, 545 P.2d 317 (1976); Fritzson v. City of Manhattan, 215 Kan. 810, 812, 528 P.2d 1193 (1974); Wilburn v. Boeing Airplane Co., 188 Kan. at 729; Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P.2d 869 (1960); Gray v. Hercules Powder Co., 160 Kan. 767, 165 P.2d 447 (1946); Jennings v. Kansas Power & Light Co., 152 Kan. 469, 105 P.2d 882 (1940); Murphy v. Continental Casualty Co., 134 Kan. 455, 459, 7 P.2d 84 (1932); Walker v. Kansas Gasoline Co., 130 Kan. 576, 578, 287 Pac. 235 (1930); Echord v. Rush, 124 Kan. 521, 523, 261 Pac. 820 (1927); Shade v. Cement Co., 92 Kan. 146, 148, 139 Pac. 1193, aff’d 93 Kan. 257, 144 Pac. 249 (1914). The logical extension of this rule is that where a remedy exists under the statute, the injured worker no longer has the right to bring a common-law cause of action. Older Kansas cases support this proposition.
Murphy v. Continental Casualty Co., 134 Kan. 455, involved an action by an injured workman against his employer’s insurance company based on a settlement entered into between the parties. Plaintiff was treated by defendant’s physician for the loss of one eye and injury to the other. Plaintiff received compensation for the loss of one eye, but failed to timely file a claim for benefits for the injury to the other eye. Plaintiff claimed that the physician and defendant fraudulently concealed the extent of the injury to the remaining eye, and brought a common-law action based on fraud to recover compensation under the workmen’s compensation act, and actual and punitive damages for the fraudulent concealment. This court held that defendant’s demurrer to plaintiff’s petition was properly sustained, holding that where a workman seeks to recover for injuries compensable under the act, the procedure specified in the act must be complied with. As to the damages for fraudulent concealment, the court held that, as the act provided a procedure for setting aside the final receipt where the signing was induced by fraud, plaintiff could not maintain a common-law action for damages in fraud. Accord, Austin v. Phillips Petroleum Co., 138 Kan. 258, 25 P.2d 581 (1933) (“the award of the compensation commissioner, if not appealed from, is an adjudication of the rights and liabilities of the parties, and is open to review and modification or to be set aside only in the manner provided by the compensation act.” p. 260).
In Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P.2d 456 (1940), the court disallowed a workmen’s compensation carrier from maintaining an independent action in the district court to cancel the policy allegedly obtained through fraud. The Matlock court held that the proper remedy was through the procedures set forth in the act, and that the provisions of the act indicated the legislative intent that the commission determine all questions arising on reviews, awards, agreements, and releases and rule upon every issue and branch of the case which pertain to a determination of liability.
Although Murphy did not discuss the issue of whether or not fraud in the procurement of the receipt “arose out of and in the course of employment,” the court’s finding that the exclusive remedy available to the workman claiming fraud was to comply with the provisions of the act to have the award set aside or modified, would seem to have persuasive precedential value in the case presently before the court. Likewise, although Matlock contains a different set of facts, it is useful to the present determination in its holding that the act is to determine not only liability, but also all questions and issues arising from that liability. Plaintiff’s allegation of fraud in the settlement agreement would be an issue arising out of the determination of liability under the workmen’s compensation statute. Applying the rationale of Matlock and Murphy, 44-528, if available, is the sole and exclusive remedy of a workman who contends the compensation award was procured by fraud. To allow circumvention of the remedies specifically provided in the act would “destroy the workmen’s compensation act, or at least its administration.” Murphy v. Continental Casualty Co., 134 Kan. at 458; accord, Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. at 304 (no right is created to bring an independent action in district court by ignoring procedures set forth in the act).
The basic issue presented in this case has been litigated in the courts of various jurisdictions in this country. Many of these cases are set forth and discussed in the annotation at 46 A.L.R.3d 1279, Workmen’s Compensation Provision as Precluding Employee’s Action Against Employer for Fraud, False Imprisonment, Defamation, or the Like (1972). Some of the cases cited there are discussed by counsel in their respective briefs. Most of the cases are distinguishable on their facts. Several cases cited involved a claim that the fraud of the employer or his agent had caused the loss of a plaintiff’s cause of action against a third party. In that situation, a statutory remedy would not be available under the workmen’s compensation act and, hence, a common-law action for fraud was permitted. Ramey v. General Petroleum Corp., 173 Cal. App. 2d 386, 343 P.2d 787 (1959); Pirocchi v. Liberty Mutual Insurance Co., 365 F. Supp. 277 (E.D. Pa. 1973). Some cases involved factual situations where the employer’s insurance company carrier refused to make payments which had been awarded under the workmen’s compensation act. In those cases no attack was made on the validity of the compensation award or the amount thereof. The actions were brought to enforce the award. Coleman v. American Universal Ins. Co., 86 Wis. 2d 615, 273 N.W.2d 220 (1979); Gibson v. Nat. Ben Franklin Ins. Co., 387 A.2d 220 (Me. 1978); and Martin v. Travelers Insurance Company, 497 F.2d 329 (1st Cir. 1974).
Cases involving a factual situation comparable to that presented in the case now before us have been decided both ways. The decision was often based on the specific provisions of the state workmen’s compensation law applicable in the particular jurisdiction. One of the earliest discussions on the employer’s common-law liability to the employee for intentional and fraudulent interference with the employee’s compensation rights may be found in the concurring opinion of Judge Ross in Bevis v. Armco Steel Corp., 86 Ohio App. 525, 93 N.E.2d 33 (1949), appeal dismissed 153 Ohio St. 366, 91 N.E.2d 479, cert. denied 340 U.S. 810 (1950). In Bevis, Judge Ross reasoned that to allow an action at common law, in addition to compensation under the act, would allow a double recovery. He concluded that where the employer’s fraud precluded the employee from claiming or enforcing his remedies under the act, there would be no double recovery and the rule of exclusivity of remedies under the workmen’s compensation law would not be applicable. In Flamm v. Bethlehem Steel Co., 18 Misc. 2d 154, 185 N.Y.S.2d 136 (1959), the New York court held that the exclusive remedy provisions of the federal Longshoremen’s and Harbor Workers’ Compensation Act did not preclude a common-law action by a plaintiff who had been deprived of his statutory rights under the act by his employer’s fraud. The opinion indicates that defendant’s fraud had the effect of completely barring plaintiff from recovery for his original injury under the compensation act. There is no mention of any provision of the act allowing review of an award improperly granted or denied because of fraud. That is clearly not the situation here. For other cases following Flamm, see Gayheart v. Newnam Foundry Co., Inc.,-Ind.-, 393 N.E.2d 163 (1979); Broaddus v. Ferndale Fastener, 84 Mich. App. 593, 269 N.W.2d 689 (1978).
A recent Georgia case on the point, cited by plaintiff, is Cline v. Aetna Cas. &c. Co., 137 Ga. App. 76, 223 S.E.2d 14 (1975), which sustained a common-law action under factual circumstances quite comparable to those presented in the present case. The court reasoned that the plaintiff’s cause of action for fraud was separate and distinct from any claim defendant had for injuries suffered in the course of his employment. Judge O’Connor, in his memorandum decision in this case, noted the holding in Cline but did not attach importance to the case because that portion of the opinion dealing with the exclusivity of the remedy under the workmen’s compensation issue was dictum.
The cases from other jurisdictions which prohibit a common-law action against the employer for fraud of the employer in obtaining a settlement of a compensation claim do so under the exclusivity provision of the particular workmen’s compensation statute involved, finding the claim of fraud to be so intertwined with the claim for compensation for the injuries arising out of employment as to preclude a common-law action. Gambrell v. Kan. City Chiefs Football Club, 562 S.W.2d 163 (Mo. App. 1978); Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir. 1977); Escobedo v. American Employers Insurance Co., 547 F.2d 544 (10th Cir. 1977); Sandoval v. Salt River Project, Etc., 117 Ariz. 209, 571 P.2d 706 (Ct. App. 1977); Ragsdale v. Watson, 201 F. Supp. 495 (W.D. Ark. 1962); Greenwalt v. Goodyear Co., 164 Ohio St. 1, 128 N.E.2d 116 (1955).
Although we have considered the cases from other jurisdictions discussed above, we have concluded that the determination of the question certified in this case is governed by the Kansas cases cited and analyzed above. We consider as particularly in point our decision in Murphy v. Continental Casualty Co., 134 Kan. 455. The Kansas cases make it clear that, if the Kansas Workmen’s Compensation Act affords the worker a remedy for the wrong, the compensation act is not only applicable but exclusive, thus barring an independent action at common law. In determining the question presented, we have weighed the policy considerations and what we believe is the legislative intent. While K.S.A. 1979 Supp. 44-501 would seem to exclude from the scope of the act intentional torts committed by the employer, under the factual circumstances in this case plaintiff’s claim for damages for his employer’s fraud in obtaining a settlement from plaintiff is so interwoven with the compensation award that to allow an independent common-law action would circumvent the statutory provisions, promote litigation, extend the period of uncertainty of the recovery for both the employee and employer, and would shift the loss of industrial accidents to the individual employer rather than to the entire industry, all contrary to the established purposes of the workmen’s compensation act.
We hold that under the stipulated factual circumstances in this case where there is a remedy available to the injured employee under K.S.A. 1978 Supp. 44-528 to set aside a workmen’s compensation award because of the employer’s fraud, the injured employee cannot maintain an independent action to recover damages for the employer’s fraudulent misconduct which resulted in an unjust settlement and award.
IT IS SO ORDERED. | [
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The opinion of the court was delivered by
Holmes, J.:
Plaintiff-appellant, Danny R. Porter, appeals from an order of the district court granting summary judgment to the defendant-appellee, Stormont-Vail Hospital. This case grows out of an action originally filed by Stormont-Vail against Porter in the magistrate court of Shawnee County to collect a hospital bill for services rendered to Porter. Stormont-Vail recovered a default judgment against Porter for the sum of $478.18. The judgment remains unpaid. Post-judgment collection procedures were instituted in the magistrate court and on three occasions between April, 1974, and January, 1977, Porter was arrested on bench warrants issued by the judge of the magistrate court upon Porter’s failure to appear in response to court orders directing him to appear. Porter was incarcerated briefly on the first two bench warrants and posted a bond at the time of his arrest on the third. He then filed this action in the district court seeking actual and punitive damages based upon allegations of malicious prosecution, false arrest, false imprisonment and abuse of process. Following discovery both parties filed motions for summary judgment and the motion of the defendant was sustained.
K.S.A. 60-256(c) provides in part:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is' entitled to a judgment as a matter of law.”
We do not deem it necessary to once again set forth the basic principles which apply when a motion for summary judgment is before the court. They were recently set forth at length in Fredricks v. Foltz, 225 Kan. 663, 666, 594 P.2d 665 (1979).
The learned trial judge filed an extensive memorandum decision and order as follows:
“MEMORANDUM OF DECISION AND ORDER
“The Motion for Summary Judgment of defendant was heard by the Court and taken under advisement. The matter comes on now for decision.
“The Court finds the facts, for the purposes of this motion, to be as follows:
“In the early part of 1973, plaintiff entered Stormont-Vail Hospital and received medical services with respect to a knee operation, and these services had the fair and reasonable value of $478.18.
“Plaintiff subsequently prosecuted a workmen’s compensation claim with respect to the knee operation and recovered a sum of $2,600.00.
“Neither plaintiff nor the workmen’s compensation insurance carrier ever paid the aforementioned amount of $478.18 owing to Stormont-Vail Hospital as a result of services rendered to plaintiff with respect to his knee operation.
“Upon plaintiff’s failure to pay the amount of $478.18 upon demand, the defendant Stormont-Vail Hospital filed suit in the Magistrate Court of Shawnee County, Kansas, against plaintiff Porter seeking recovery of the amount of $478.18 with interest at the rate of eight percent (8%) per annum, and for costs.
“On the 30th day of March, 1974, Richard Tucker, Sheriff of Rice County, Kansas, received a Summons and copy of Petition from the Magistrate Court of Shawnee County, Kansas, involving the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486, for the purpose of serving Danny R. Porter, defendant in that action.
“On the 1st day of April, 1974, Sheriff Richard Tucker personally served Danny R. Porter with the Summons and copy of Petition in Stormont-Vail Hospital v. Porter at 9:00 a.m.
“On April 1, 1974, Sheriff Richard Tucker made return of Summons to the Magistrate Court of Shawnee County, Kansas, and caused the same to be mailed to such Court.
“By inadvertence, Sheriff Tucker failed to sign his name to the Sheriff”s Return of Summons mentioned above, but nevertheless states that he personally served Danny R. Porter at the date and time mentioned.
“Pursuant to the Summons personally served upon plaintiff Porter on April 1, 1974, plaintiff Porter was ordered to appear in the Magistrate Court of Shawnee County, Kansas, at 11:00 o’clock a.m., April 24, 1974, and was informed that should he either fail to appear before the Court, personally or by counsel, at that time, or prior to that time file with the court a pleading in response to the Petition, judgment by default would be taken against him for the relief demanded in the Petition; plaintiff Porter failed to appear either personally or by counsel before the Court on April 24, 1974, and further failed to file any pleading in response to the Petition, any objection to venue, or any request for additional time; as a consequence of plaintiff’s failure to appear or timely plead, a default judgment was entered against him by the Court in accordance with K.S.A. 61-1721 for the amount requested in the Petition, said amount being $478.18, with interest at the rate of eight percent (8%) per annum from February 13, 1973, and for costs.
“On April 30, 1974, the attorney for defendant Stormont-Vail Hospital made application for examination of judgment debtor Porter to the Magistrate Court, and pursuant to such application, the Court entered an order for plaintiff Porter to personally appear before the Court at 11:00 o’clock a.m. on the 22nd day of May, 1974; the application, and the order issued pursuant thereto, were in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices, and procedures of the Magistrate Court.
“Plaintiff Porter was personally served with the aforementioned order to appear, but failed to appear at the time indicated.
“As a result of plaintiff’s failure to appear on May 22,1974, as ordered, a citation in contempt was issued by the Court ordering plaintiff to appear before the Court on July 3,1974, at 11:00 o’clock a.m. and show cause, if any, why he should not be punished for contempt of Court; this citation in contempt was personally served upon plaintiff, but plaintiff failed to appear before the Court at the time indicated.
“As a consequence of plaintiff Porter’s failure to appear on July 3,1974, a Bench Warrant was issued on July 10, 1974, ordering that plaintiff Porter be arrested and brought before the Court to answer to the charge of failure to appear as ordered; this Bench Warrant was issued in accordance with Chapter 61 of the Kansas Statutes Annotated, and the rules, practices and procedures of the Magistrate Court.
“Pursuant to the aforementioned Bench Warrant, plaintiff Porter was arrested on September 24, 1974, and brought before the Court on September 25, 1974, to answer to the charge of contempt for failure to appear as ordered; at that time the matter on contempt was held in abeyance by the Court, and plaintiff was ordered to appear October 9, 1974, at 11:00 o’clock a.m.
“Plaintiff Porter failed to appear as ordered on October 9, 1974, and as a consequence, a Bench Warrant was issued for plaintiff’s arrest by the Magistrate Court of Shawnee County in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices and procedures of the Court.
“Pursuant to the aforementioned Bench Warrant, plaintiff was again arrested on July 13, 1976, and brought before the Court on July 14, 1976; at that time, the matter of contempt of Court was held in abeyance, and plaintiff Porter was ordered to appear before the Court on August 11, 1976.
“Plaintiff Porter appeared before the Court on August 11, 1976, pursuant to the aforementioned order, and the matter of contempt of Court was held in abeyance; plaintiff was ordered to re-appear before the Court on September 8, 1976.
“Plaintiff Porter failed to appear as ordered on September 8, 1976, and as a consequence, a Bench Warrant was issued for plaintiff’s arrest by the Magistrate Court of Shawnee County in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices and procedures of the Court.
“Pursuant to the aforementioned Bench Warrant, plaintiff Porter was arrested in January of 1977; he was not, however, transported to Shawnee County at the time of this arrest, but rather was allowed to post a bond of $50.00 thereby assuring his appearance before the Magistrate Court of Shawnee County; upon the posting of the bond, plaintiff was released from custody upon condition that he appear before the Magistrate Court of Shawnee County when so ordered.
“There have been no further proceedings in the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486, since plaintiff’s arrest, and subsequent release from custody in January of 1977.
“Plaintiff has at no time filed an appeal from the judgment entered against him in the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486.
“Plaintiff claims that the judgment rendered against plaintiff is void for failure of the Sheriff of Rice County, Kansas to sign [the return of service]; that plaintiff has been maliciously prosecuted, abused with process and falsely arrested and imprisoned. Defendant maintains that it is entitled to judgment, as a matter of law, on the foregoing claims.
“The Court finds and concludes as follows:
“Plaintiff’s claims appear to stem from his assertion that the Magistrate Court of Shawnee County lacked jurisdiction to enter a default judgment against him in the case of Stormont-Vail Hospital v. Danny R. Porter, No. 74-CV-486, and as a result, the judgment entered and all post judgment proceedings are void. This contention is based on the failure of Sheriff Richard Tucker, of Rice County, Kansas, to sign the Return on Service of Summons. The Return in question includes the notation that Danny R. Porter was served personally on April 1, 1974, along with the miles traveled by and fees of the serving officer. The only omission is the signature of the officer perfecting service. Sheriff Tucker’s affidavit, on file herein, states unequivocally that he perfected personal service on Danny R. Porter at 9:00 A.M. April 1, 1974, and inadvertently failed to sign the Return. Attached to Sheriff Tucker’s affidavit is a copy of his Day and Expense Book setting out in detail his handling of service of summons on Danny Porter.
“The issue, stated simply, is this:
“When it is an uncontroverted fact that personal service of summons took place, does the inadvertent failure, of the officer perfecting service, to sign the return render any judgment entered and post judgment proceedings, had thereon, void?
“The statutory section which governed proof of service at the time Sheriff Tucker served plaintiff Porter in the case of Stormont-Vail Hospital v. Danny R. Porter, was K.S.A. 61-1807 (Supp. 1974) which states in pertinent part:
‘Proof of service shall be made as follows: (a) Personal or resident service. (1) Every officer to whom summons or other process shall be delivered for service within or without the state, shall make return thereof in writing stating the time, place and manner of service of such writ, and shall sign his name to such return. . .’
“Also important to the question of whether service in Stormont-Vail Hospital v. Porter was valid is K.S.A. 61-1704 [1974 Supp.], which states in pertinent part:
‘In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his person, status, or property were subject to be affected.’
“The Kansas Supreme Court considered a similar question in Cadwallader v. Lehman 202 Kan. 738 [451 P.2d 163 (1969)]. In that case it was objected that the officer who served the summons on the defendant did not verify the return and thus there was no valid service. The Deputy Sheriff made out his return properly but the Clerk of the Court attached an acknowledgment instead of executing a verification. At page[s] 743[-44] the Court said:
‘We do not regard this as fatal, however. The district court approved the service, as shown by the journal entry of July 27, 1967. In so doing, the court was authorized, by the statute itself, to consider any competent proof that service had properly been made.
‘In our opinion it was proper for the trial court, in determining whether the defendant was served with out-of-state summons on October 3, 1966, to take into account the return of service which, although only acknowledged, at least suggests personal service on Lehman, together with the letter of October 12, 1966, from the attorneys consulted by Lehman about the lawsuit. We conclude the court was justified in finding the defendant properly served with out-of-state process.’
“The rule is succinctly stated in Syllabus No. 7 to Cadwallader v. Lehman, supra:
‘Under the provisions of K.S.A. 60-204 substantial compliance with a method of serving process shall effect valid service thereof where the court finds that, notwithstanding some irregularity or omission, the party served was made aware that legal proceedings were pending in a specified court in which his person, status or property might be affected.’
“In the instant case the sheriff made a full and complete return, setting out the fact that plaintiff was personally served at a specified time and date omitting only his signature. In addition to the return is Sheriff Tucker’s affidavit to the effect that he personally served defendant Porter, and inadvertently omitted his signature, considered with the Sheriff’s Day and Expense Log make it abundantly clear that defendant Porter ‘was made aware that legal proceedings were pending in a specified Court in which his person, status or property might be affected’ and this Court so finds.
“Plaintiff’s next claim is for malicious prosecution. The elements of a malicious prosecution action are set out at PIK 2nd 14.30 as follows:
‘To maintain an action for malicious prosecution the plaintiff must prove that the defendant instituted the proceeding of which complaint is made, that the defendant in so doing acted without probable cause and with malice, and that the proceeding terminated in favor of the plaintiff.’ (emphasis supplied)
“See Silva v. Lewis 210 Kan. 348 [502 P.2d 831 (1972)] as approving PIK 2nd 14.30.
“The case on which this action is based, Stormont-Vail Hospital v. Danny R. Porter, terminated on April 24, 1974 in a default judgment in favor of Stormont-Vail Hospital and against Danny R. Porter. The unfavorable result, as to plaintiff, was not appealed and is now res judicata. The element of favorable termination, of the proceeding, is therefore lacking in plaintiff’s claim.
“Plaintiff also asserts a claim for false arrest and false imprisonment. The statute of limitation applicable to that claim is found at K.S.A. 60-514. That statute states in pertinent part:
‘Actions limited to one year. The following actions shall be brought within one (1) year ... (2) An action for assault, battery, malicious prosecution, or false imprisonment. . . .’
The instant action was filed January 17,1977. Any claim of plaintiff for false arrest or false imprisonment arising from an incident occurring at a time prior to January 17, 1976 is barred by the provision of K.S.A. 60-514.
“Defendant alleges that the judgment entered against plaintiff Porter in Stormont-Vail Hospital v. Porter, and the bench warrants issued by the Magistrate Court in enforcing that judgment establish a legal excuse for the arrest and imprisonment of plaintiff.
“The general rule accepted in Kansas, is stated in 32 Am. Jur. 2d, False Imprisonment, § 66, at page[s] 127J-28] as follows:
‘An arrest ... by virtue of process regular and legal in form, duly issued by a court, magistrate, or body having authority to issue it, and executed in a lawful manner, does not constitute false arrest or imprisonment. Valid process is a complete justification for the acts done under it and in compliance with it. It protects the person who [sued] it out, as well as the officer who executed it, in the case of a warrant of arrest. . . .’
“The arrests, and imprisonments resulting therefrom, of which plaintiff complains were made pursuant to bench warrants issued out of the Shawnee County Magistrate Court. PIK [Civ.] and 14.21 provides in relevant part as follows:
‘A legal excuse for the restraint of the personal freedom of an individual is a defense to an action for (false imprisonment) (false arrest).
A legal excuse exists:
1. When an officer arrests with a valid warrant.’
“All arrests of plaintiff, and imprisonments arising therefrom, were made pursuant to valid warrants issued by a magistrate and therefore do not constitute false arrest or imprisonment.
“Defendant next claims it is entitled to judgment on plaintiff’s claim for abuse of process.
“The elements of abuse of process are defined as follows:
‘It is generally recognized that the elements essential to sustain the action are: (1) that the defendant made an illegal, improper, perverted use of the process, [a use neither warranted nor authorized by the process], and (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process, and (3) that damage resulted to the plaintiff from the irregularity. While the existence of an ulterior motive may, perhaps, be inferred from the fact that the process has been misused or misapplied, the reverse is not true, for if the act of the prosecutor is in itself regular, the motive, ulterior or otherwise, is immaterial.’ 1 Am. Jur. 2d 252 [-53], Abuse of Process, § 4.
“The Kansas Supreme Court has considered these elements as follows:
‘. . . [T]wo elements are necessary to an action for malicious abuse of process, one the existence of an ulterior purpose, and second, an act in the use of such process not proper in the regular prosecution of the proceeding. . . .’ Welch v. Shepherd, 169 Kan. 363, 366, 219 P.2d 444.
Plaintiff’s specific claims as to abuse of process are contained in paragraph six of his petition and are stated as follows:
‘That the conduct of the defendant herein resulted in an abuse of process in that the procedures utilized were for harassment purposes and in particular to cause great inconvenience to the plaintiff in that he was residing several hundred miles from Topeka, Kansas, when required to report in connection with collection procedures. That after initiating said procedures there was not due process and that there was no hearing ever conducted in the Court pertaining to the issues tendered by the process that was issued by the Court upon request of the defendant herein and that the same was an abuse of process in all respects.’
“The post judgment activities of the defendant were conducted in accordance with the provisions of Chapter 61 of the Kansas Statutes Annotated and the rules, practices and procedures of the Shawnee County Magistrate Court. The post judgment remedies contained in Chapter 61, and more specifically K.S.A. 61-2204, ‘provide a simple and effective method by which a person who has recovered judgment in a limited action may discover the assets of a recalcitrant judgment debtor and thus find property or funds which may be levied against in order to satisfy the judgment.’ Threadgill v. Beard, 225 Kan. 296, 302 [590 P.2d 1021 (1979)]. The judgment rendered by the Magistrate Court in Stormont-Vail v. Porter remains unsatisfied to this date. Defendant’s actions do not constitute ‘an act in the use of such process not proper in the regular prosecution of the proceeding. . .’ Welch v. Shepherd, supra, and therefore that element is lacking in plaintiff’s claim.
“Defendant’s Motion for Summary Judgment also addresses a negligence theory. This apparently stems from plaintiff’s listing that theory in a pretrial questionnaire dated November 15, 1977. However, plaintiff has never amended his pleadings to encompass such a theory and the Court has not considered it in making this ruling.
“The issues in this case have been made more complex and the decision of the Court made more difficult by the failure of the plaintiff to comply with the dictates of SCR 141 and to cite legal authority in support of his position. That failure has also resulted in the expenditure of unnecessary hours and a regrettable delay in the Court rendering its decision.
“The Motion of the defendant for Summary Judgment is sustained for the reasons set forth above. The foregoing Memorandum of Decision shall serve as the Order of the Court. Costs are taxes to the plaintiff. Dated April 26, 1979.”
Regardless of what might be said about the procedures followed by the magistrate court in the original collection action, the fact remains that such procedures did comply with the appropriate statutes and the orders and bench warrants were legally issued by the magistrate judge and not by Stormont-Vail. On the record before us, no other conclusion can be reached.
We have carefully considered all points raised by the appellant together with the record on appeal and conclude that the trial court was correct in its final determination of this case.
Appellee seeks attorney fees and costs under Rule 7.07(b) on the grounds that the appeal herein was frivolous and taken only for the purpose of harassment and delay. While much of what defendant says in its brief about the merits of this appeal is true, and while the comments of the trial judge in the penultimate paragraph of his memorandum opinion would also apply to the brief of the plaintiff, we cannot say the appeal was totally without merit and therefore defendant’s request for attorney fees and costs is denied.
The judgment is affirmed. | [
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Per Curiam:
This appeal is before the Supreme Court following the granting of a petition for review of the decision of the Court of Appeals in United Kansas Bank & Trust Co. v. Rixner, 4 Kan. App. 2d 662, 610 P.2d 116 (1980).
This action was brought by the United Kansas Bank and Trust Company, plaintiff-appellant, against Richard Rixner and Daniel S. Frackowiak, defendants-appellees, to recover on a promissory note. Frackowiak filed a counterclaim alleging violations of the Uniform Consumer Credit Code (UCCC) and praying that the note be declared void as usurious, for the allowance of the statutory penalty, attorney fees, and a refund of payments made. The district court voided the agreement and awarded attorney fees to Frackowiak’s attorney. The district court declined to impose any statutory penalty, award a refund of payments made, or award attorney fees to Rixner’s attorney. All parties appealed to the Court of Appeals. The facts of the case are set forth in detail in the excellent opinion by Meyer, J. We have carefully examined the record and the opinion of the Court of Appeals and have concluded that the issues raised on appeal by the various parties are set forth and disposed of by the Court of Appeals in a clear and concise manner in accordance with established principles of law. We approve the opinion of the Court of Appeals and affirm its judgment in all respects. The result reached in this case is required by express statutory provisions designed to discourage the practice of usury in this state. The judgment of the district court should be affirmed in part and reversed in part and remanded for further proceedings in harmony with the opinion of the Court of Appeals.
The motion to tax attorney fees as costs on the appeal filed by the attorney for Frackowiak is considered and that attorney is awarded the total sum of $1500 for his services on appeal in the Court of Appeals and in this court. The motion to tax attorney fees on the appeal filed by the attorney for Rixner is considered and that attorney is awarded the sum of $500 for his services on the appeal in both courts. The attorney fees awarded shall be paid by the appellant.
The judgment of the Court of Appeals is affirmed. The judgment of the district court is affirmed in part and reversed in part and remanded for further proceedings in harmony with the opinion of the Court of Appeals in United Kansas Bank & Trust Co. v. Rixner, 4 Kan. App. 2d 662, 610 P.2d 116 (1980). | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action from convictions of three counts of aggravated robbery (K.S.A. 21-3427) and two counts of felony theft involving two automobiles (K.S.A. 1979 Supp. 21-3701). The facts in the case are undisputed and essentially are as follows: Some time during the night of August 21, 1979, a yellow 1972 Ford Torino was stolen from a residence in Kansas City, Missouri. On August 25, 1979, a green 1972 Ford Torino was stolen from a parking lot in Wyandotte County. Around 7:00 p.m. on August 25, John Lucas was seen by an employee of Nigro’s Supermarket driving a yellow Torino through the parking lot of the supermarket in Kansas City, Kansas. Shortly thereafter, Lucas was seen sitting in front of the supermarket in a green Torino. Lucas subsequently entered the supermarket, approached the manager, brandished a pistol, and demanded money. The manager delivered money from one cash register to Lucas, who then took money by force from another store cashier at a different cash register. The manager was then forced into the store’s office and more money was taken there. The monies were placed in a sack provided by a carry-out boy who had earlier seen Lucas in the yellow Ford. Lucas thereupon left the store and drove away in a green Torino. The store’s employees gave accurate descriptions of both the yellow and green Torinos and all positively identified Lucas as the robber. In addition, two store customers identified Lucas as the robber.
A Kansas City police officer, having received a police dispatch description of both automobiles, attempted to stop a yellow Ford Torino matching the description. The automobile failed to respond to the officer’s red light and siren, and a ten-minute, high-speed chase ensued. The chase ended when the yellow Torino collided with some parked cars and became disabled with a flat tire. Defendant Shoemake was the driver of the vehicle. John Lucas was the only passenger. In the car the police found currency, food coupons, receipts, and checks payable to Nigro’s on the floorboard on both the driver’s and passenger’s side. A pistol was found under the driver’s seat. In the rear of the car, the police found a slidehammer, an instrument used in automobile body work and frequently used by car thieves to remove ignitions. An ignition was still attached to the slidehammer. The key to the yellow Torino operated the attached ignition. The green Torino was found two blocks from Nigro Supermarket with the engine still running. Both cars, when recovered, were without their ignition switches and could be started without keys. Shoe-make and Lucas were charged as codefendants on two counts of felony theft involving the yellow and green Ford Torinos and three counts of aggravated robbery of three persons at the Nigro Supermarket. The cases were severed for trial. On November 16, 1979, a jury found defendant Shoemake guilty on all five counts. The defendant appealed.
The defendant’s first point is that the trial court erred in admitting into evidence photographs of the currency and other property recovered from the yellow Ford Torino. In support of his position, the defendant maintains that the foundation for the admission of the photographs was insufficient because it failed to comply with K.S.A. 1979 Supp. 60-472 which provides for the admissibility of photographs of property taken in a criminal prosecution for theft where the property is returned to the owner. That statute provides in substance that the photograph shall bear a written description of the property alleged to have been wrongfully taken, the name of the owner of the property taken, the location where the alleged wrongful taking occurred, the name of the arresting law enforcement officer, the date the photographs were taken, and the name of the photographer. The statute requires that the writing shall be made under oath by the arresting law enforcement officer and the photograph identified by the signature of the photographer. Defendant claims that the foundation for admission of the photograph was insufficient under the statute because the photograph bore only the case file number and the photographer did not testify that the currency pictured was the currency recovered from the vehicle. We have concluded that the point is without merit. The 1979 version of the statute was, by its term, applicable only in theft cases. While the 1980 version now includes all property which is wrongfully taken and not just property taken in theft, the 1980 amendment was not applicable when the theft occurred. In our judgment, however, the foundation was more than sufficient to identify the currency and other property depicted as that taken from Nigro Supermarket and recovered in the automobile. One police officer testified that he had removed the items from the yellow Torino and that, in making his report, he listed each bill by denomination and serial number. He identified the photograph of the currency as accurately depicting the currency he recovered by comparing the serial numbers revealed in the photographs with the serial numbers listed on his report. Another police officer testified that he was present when the photograph was taken and that the case number was included in the photograph and corresponded with the number on the case file. We have held on a number of occasions that photographs are admissible upon proper foundation and identification if they accurately represent matters relevant to the issues in the case. State v. Hollaway, 214 Kan. 636, 639, 522 P.2d 364 (1974). In Hollaway, the defendant’s complaint that photographs were inadmissible because they were not identified by the photographer was rejected. It was held that the foundation was sufficient where a police officer was present at the time the photographs were taken and testified that they accurately portrayed what was depicted. Here the evidence was clear and undisputed as to the items taken in the robbery of Nigro’s Supermarket. The foundation for the admission of the photographs in this particular case was substantial. Even if the provisions of the statute were not strictly complied with, the admission of the photographs could not have prejudiced the rights of the defendant.
The defendant also complains that the trial court erred in denying his motion for acquittal and in overruling his motion for a new trial, both motions being predicated on insufficiency of the evidence to support convictions under the various counts. Defendant argues that, because none of the victims or witnesses actually saw defendant Shoemake commit any of the crimes alleged, the evidence was insufficient to support the verdicts. In this case a rational factfinder could reasonably conclude that defendant participated in the taking of the two Ford Torinos, as the initial step in the plan to commit the Nigro robbery. A rational factfinder could also conclude that defendant’s role in the plan was to drive the get-away car after Lucas committed the robbery and ditched the green Torino. When the sufficiency of the evidence is challenged on appellate review, the issue is whether, upon the record’s evidence admitted at the trial, a rational trier of fact could have found proof of guilt beyond a reasonable doubt. State v. Henderson, 226 Kan. 726, 603 P.2d 613 (1979). The evidence in this case was sufficient to allow a rational factfinder to conclude that the defendant Shoemake willfully and willingly aided and abetted Lucas in the commission of the felonies.
The defendant in his brief challenged the trial court’s jurisdiction over the theft of the yellow Ford Torino because it was stolen originally in Kansas City, Missouri. K.S.A. 22-2610 provides the venue for prosecution of theft of property taken in another state and brought into Kansas to be in the county where found in this state. Here the yellow Torino, although taken in Missouri, was recovered in Wyandotte County and the charge was properly filed in the Wyandotte County District Court.
The defendant next complains that the trial court erred in failing to give requested lesser included offense instructions on simple robbery, criminal damage to property, and aiding a felon. In this case, the witnesses testified that Lucas threatened them with a pistol before taking the money from them. The use of the pistol was undisputed and, hence, an instruction on simple robbery was not required. State v. Prince, 227 Kan. 137, 140-141, 605 P.2d 563 (1980). Furthermore, the trial court did not err in its failure to give an instruction on criminal damage to property under K.S.A. 1979 Supp. 21-3720. In State v. Woods, 214 Kan. 739, 744, 522 P.2d 967 (1974), this court stated:
“If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense.”
The criminal damage to property statute (K.S.A. 1979 Supp. 21-3720) requires a willful act of damaging or destroying property belonging to another. This element is not required under K.S.A. 1979 Supp. 21-3701, the theft statute. Under the circumstances, there was no duty to instruct on the offense of criminal damage to property because it is not a lesser included offense of the crime of theft. The defendant’s contention that an instruction should have been given on aiding a felon, K.S.A. 21-3812, is also without merit. That offense has been held not to constitute a lesser included offense of aiding and abetting the commission of another crime. See State v. Weigel, 228 Kan. 194, 198, 612 P.2d 636 (1980), and State v. Sully, 219 Kan. 222, 228, 547 P.2d 344 (1976).
Defendant’s next contention is that there was only one robbery committed at Nigro Supermarket and that the charges and convictions of three separate counts of robbery allowed multiple convictions for a single offense. The amended information in this case charged in substance in Count I that Lucas and Shoemake took property from the person or presence of Frederick Larison by force or threat while armed with a handgun. Count IV charged Lucas and Shoemake with taking property from the person or presence of Lee Trial by force or threat while armed with a handgun. Count V charged the codefendants with taking property from the person or presence of Michael Jones by force or threat while armed with a handgun. The undisputed evidence showed that the robber, Lucas, threatened the manager, Lee Trial, with a handgun and received from him the contents of a cash register and a money depository. The evidence further showed that, after being threatened with a gun, the other cashier, Frederick Larison, delivered to Lucas money from his cash register. The evidence was undisputed that Michael Jones did not have money under his control to deliver to the robber and his only participation was in holding a sack while the property taken from the other employees was placed therein by Lucas to facilitate its transportation. Under these circumstances, we have concluded that the evidence was not sufficient to justify the conviction of defendant Shoemake for aggravated robbery of Michael Jones in a separate count, since no property was forcibly taken from him by Lucas. In State v. Branch & Bussey, 223 Kan. 381, 384, 573 P.2d 1041 (1978), it was held that robberies committed on the same occasion upon different persons may constitute separate crimes which will support separate charges and convictions. There the robbers, after forcing the victims to the floor, forced each of the victims to deliver his billfold to the robbers. Since property was forcibly taken separately from each of the victims, it was held that the charges were separate and not duplicitous and that the defendant could be convicted of separate counts of aggravated robbery as to each of the victims. In State v. McQueen & Hardyway, 224 Kan. 420, 430-31, 582 P.2d 251 (1978), it was held that multiple offenses could not be charged where only one person was robbed of items of property belonging to different persons. In that case, one conviction for aggravated robbery was set aside where the only victim was compelled at gunpoint to deliver property belonging to a supermarket and also a gun belonging to himself.
Where, in the course of the robbery of a business establishment, several employees are held at gunpoint and compelled by force to deliver to the robber property in the possession or custody of the employee, a separate and distinct aggravated robbery occurs with the taking of property from each victim. In the present case, property was taken from the manager, Lee Trial, and from the cashier, Frederick Larison, both of whom were custodians of store property. The forcible taking of such property from these employees constituted separate and distinct aggravated robberies which could be charged in separate counts. As noted above, no property was actually taken from Michael Jones. There being no property taken from Michael Jones, the defendant could not be charged with a separate and distinct crime of aggravated robbery involving that employee. We have concluded that the conviction of defendant on Count V, charging defendant Shoemake with aggravated robbery of Michael Jones, must be set aside.
The defendant’s final assignment of error is that the prosecuting attorney made improper and prejudicial statements during his closing argument. The trial court instructed the jury that the burden of proof was upon the State to prove each of the elements of each count beyond a reasonable doubt. In his closing argument, the prosecutor suggested to the jury that, if the jury should find Shoemake guilty to a reasonable certainty, that would be sufficient. In State v. Winston, 214 Kan. 525, 530, 520 P.2d 1204 (1974), this court held that an instruction defining reasonable doubt as “beyond a moral certainty sufficient to satisfy the reason” had no prejudicial effect upon defendant’s substantive rights and was not reversible error. In this case, the trial court properly instructed the jury and we cannot say the prosecutor’s statements exceeded the limits of fairness or were outside the considerable latitude allowed the prosecutor in arguing his case to the jury. State v. Robinson, 219 Kan. 218, 221, 547 P.2d 335 (1976).
For the reasons set forth above, the judgment of the district court is reversed as to the defendant’s conviction on Count V charging aggravated robbery of Michael Jones. That conviction is set aside and the defendant is discharged therefrom. In all other respects, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This action was brought by the City of Salina against Helen Jaggers, Saline County Register of Deeds; Dauer Implement Co., a Kansas corporation; The Saline County Planning & Zoning Commission; The Saline County Board of County Commissioners; John F. Commerford; Thomas J. Commerford; James J. Commerford; George E. Commerford; and Valle H. Commerford. This appeal represents two cases consolidated at trial and presents the following question: What governmental bodies must approve the designation of a plat in an unincorporated area located more than one mile but less than three miles from the nearest limits of an incorporated city, prior to the recording of the plat with the register of deeds?
The facts are undisputed and are unimportant to the disposition of this case. We will, however, include them as background information. Appellees, John F. Commerford, James J. Commerford, Thomas J. Commerford, George E. Commerford and Valle H. Commerford, are the fee owners of the East 60 acres of the Southeast Quarter of Section 11, Township 15 South, Range 3 West, in Saline County. The tract of land was platted as the “Commerford Final Plat” and is known as the “Commerford Tract.” The tract lays within 3 miles of but more than 1 mile from the nearest points of the City of Salina and is not more than one half the distance from Salina and any other city.
On July 7, 1978, the City of Salina served written notice on Helen Jaggers, as Register of Deeds, directing her to refrain from recording the “Commerford Final Plat” until it was approved by the City Planning Commission and the Board of City Commissioners of Salina. The Register of Deeds did not heed the City’s notice and filed and recorded the controversial plat on July 11, 1978. Thereafter on October 5, 1978, the County Planning & Zoning Commission issued a building permit to Dauer Implement Co., Inc., to erect a building upon lot one of “Commerford Tract”.
On October 24,1978, the City of Salina filed this action seeking a declaratory judgment and a permanent injunction against all appellees, except Helen Jaggers, who had been previously sued on July 24, 1978, in an action seeking identical relief. The two cases were consolidated in an order dated March 26, 1979. The City had previously dismissed its action against Dauer Implement Co., Inc. on November 28, 1978. At that time it was agreed the dismissal would not affect the positions of the parties in either case.
On May 11, 1979, the case was tried to the court. The City had filed a motion for summary judgment and that motion was overruled June 8, 1979. Defendants’ motion to dismiss was sustained and judgment was entered in their favor. This appeal followed. The parties stipulated one issue to be decided at trial: “[W]hether or not K.S.A. 19-2633 and K.S.A. 19-2905 were repealed by implication when the legislature enacted K.S.A. 12-705a and 12-705b in 1965.” The resolution of that issue will shed light on the statutory procedure to be followed with respect to subdivision regulation within the three-mile unincorporated area surrounding the City of Salina, particularly as it applies to platting.
At the outset, we will examine whether there is a distinction between zoning and subdivision and platting statutes affecting the issue in this case. With respect to counties it appears the legislature intended to divide the statutes into separate zoning and platting statutes. K.S.A. 19-2633 and K.S.A. 19-2905 are illustrative of this point. As originally enacted, K.S.A. 19-2633 was described as: “Relating to the subdividing and platting of land outside of the corporate limits of cities.” (Emphasis added.) It specified the land in question be more than one mile from the limits of any incorporated city.
K.S.A. 19-2905 was passed in 1939 some ten years after K.S.A. 19-2633 and was entitled:
“Authorizing zoning in certain townships of certain counties near cities of more than 100,000 population.
“An Act authorizing zoning in certain townships of certain counties for the purpose of promoting health, safety, morals, comfort and general welfare; to provide for the location and use of buildings, structures, and land for trade, industry, residence or other purposes; to divide such townships into districts or zones of such number, shape, and area as may be deemed best suited to carry out the purposes of this act; to regulate and restrict the construction, reconstruction, alternation or use of buildings, structures or land therein; to provide for the appointment of a zoning board; to provide for the adoption of comprehensive zoning plans; to regulate and control plats and to provide for a comprehensive road and trafficway system; to provide for the change of such regulations and boundaries of zones; to provide the method of procedure and other purposes, and to provide for the method of raising funds therefor, and prescribing penalties for the violation thereof.” L. 1939 ch. 165.
Although the titles of the two acts accurately describe their contents as platting on the one hand and zoning on the other, the original act of which K.S.A. 19-2905 was a part contains a reference to regulation and control of plats. It is apparent the legislature considered county platting a part of county zoning and commingled the regulations of the two.
The same phenomenon occurs in the city statutes. As originally enacted in 1921, K.S.A. 12-705 specifically referred to plats, replats, deeds or dedications of land. That statute is not located in city planning and subdivision regulation. It could be argued the statutes are divided into subdivisions under the general heading of planning and zoning in article 7. Throughout the planning and zoning statutes, however, the legislature has referred to the comprehensive plan which includes maps, plats and charts for the development of the city. Even if the statutes could be distinguished either as subdivision regulations or zoning regulations, both are controlled by the “comprehensive plan” provided for by K.S.A. 12-704. K.S.A. 12-705 authorizes cities which have adopted a comprehensive plan to adopt regulations governing the subdivision and land within the corporate limits of the city and “may include any unincorporated territory lying outside of but within three (3) miles of the nearest point on the city limits . . . .” The statute then places a condition on the adoption of subdivision regulations:
“[N]o such regulations or changes or amendments thereto adopted by a joint committee as hereinafter provided, shall become effective unless and until the same has been submitted to and approved by both the board of county commissioners and the governing body of the city.”
Thereafter, the act provides the nature and extent of the regulations which are permissible for a city and in addition to other necessary rules provides a city may set conditions for approval of “plats” as a part of the regulations.
K.S.A. 12-705a provides if the area designated by the city for subdivision regulation includes area lying outside of the city and governed by county regulations, a copy of the city resolution designating the area shall be certified to the board of county commissioners, and within sixty days thereafter there shall be established by a joint resolution of the county and city a joint committee for subdivision regulation with authority to adopt regulations governing the subdivisions of land within the area of joint designation.
K.S.A. 12-705b regulates the plats on the area subject to subdivision regulation and requires, among other things, that “[a]ll such plats shall be submitted to the . . . joint committee for subdivision regulation if such has been formed . . . .”
We find that subdivision involves planning, zoning and plat ting and we adhere to our statement in Hudson Oil Co. v. City of Wichita, 193 Kan. 623, 628, 396 P.2d 271 (1964):
“[K]ansas statutes (G.S. 1949, 12-701, et seq., and 13-1108, et seq.) anticipate a close relationship between planning, zoning and platting. Although planning is the broad purpose to be accomplished, planning cannot be accomplished without both platting and zoning.”
In the case at bar we are concerned only with platting, although this opinion will of a necessity affect all facets of subdivision regulation because it determines the circumstances and the governing body having authority over the unincorporated three-mile area around Kansas cities.
Appellant contends the county platting statute, K.S.A. 19-2633, enacted in 1929, and the county zoning law, K.S.A. 19-2905, enacted in 1939, were repealed by implication prior to 1965 with the passage of K.S.A. 12-705 et seq. and K.S.A. 13-1108 through 13-1114 (the city platting laws). Appellant argues the 1965 amendments to K.S.A. 12-705 and the repeal of K.S.A. 13-1108 through 13-1114 the same year confirm the repeal by implication of the county statutes, giving the city control of the area for subdivision regulation.
In order to properly determine whether the city statutes in question repeal by implication the county statutes in question, it is necessary to discuss the legislative history of several city and county platting, zoning, planning and subdivision regulation statutes.
K.S.A. 19-2633 was enacted in 1929 and has remained unchanged since that time. The statute is located in Chapter 19, Counties and County Officers under the section entitled Miscellaneous Provisions. It provides:
“When plats of land outside city to be filed with county commissioners. Any person, partnership or corporation owning land outside the limits of any incorporated city, said land being located more than one mile from the limits of any incorporated city, desiring to subdivide any such tract of land, may plat the same and submit the plat thereof, together with an abstract of title to the land so platted, to the board of county commissioners of the county in which such land is situated. The plat shall contain a description of the land as subdivided, giving the name of said subdivision, and the restrictions to which the land or separate tracts thereof are subject.
“When said plat is approved by the board of county commissioners of the proper county, the same shall be filed with the register of deeds of said county, and after the filing of said plat with the register of deeds the various tracts or parcels of land therein may be conveyed by the description designated in said plat, and said land and tracts shall be subject to the restrictions contained in the plat filed with the register of deeds, as above provided, and the instrument conveying such tracts or parcel of land shall contain the recital subject to existing restrictions contained in the plat of such land now on file in the office of the register of deeds.” L. 1929, ch. 110, § 1.
K.S.A. 19-2905 was enacted in 1939. It has been amended five times since the original enactment in laws dating 1945, 1949, 1953, 1957 and 1970. It is located in chapter 19, Counties and County Officers in the section entitled Planning and Zoning. It provides:
“Regulations governing subdivision of land; approval of plats and replats by zoning board and county commissioners; approval required prior to recording; fees; bond. All plans, plats or replats of land laid out in building lots and the streets, alleys or other portions of the same intended to be dedicated for public use, or for the use of purchasers or owners of the lots fronting thereon or adjacent thereto, and plans and descriptions of all streets, alleys, or public ways intended to be deeded or dedicated for public use, or for the use of purchasers or owners of the land fronting thereon or adjacent thereto, which is not intended to be platted into lots or other designated tracts, shall be submitted to the zoning board for their consideration and their recommendation shall then be submitted to the county commissioners for their official consideration and action, and no such plat or replat or dedication or deed of street or public way shall be filed with the register of deeds as provided by law until such plat or replat or dedication or deed shall have endorsed thereon, approval by the zoning board and by the board of county commissioners.
“Before exercising the powers referred to above, the zoning board shall adopt regulations governing the subdivision and use of land within its jurisdiction. Such regulations may provide for the proportionate area of streets in relation to other existing or planned streets and with respect to adequate and convenient open spaces for traffic, utilities, access for fire-fighting apparatus, recreation, light and air and for the avoidance of congestion of population, including minimum width and area of lots and minimum ground floor area of residences; and such regulations may also provide for minimum standards and requirements for adequate drainage, flood protection and floodplain regulations and the location and paving of sidewalks, streets or public ways which are or may be required by the board to be included in any plat, replat or dedication or deed of dedication for public use which may be presented for approval.
“The zoning board may, with the approval of the board of county commissioners, establish a scale of reasonable fees to be paid in advance by the applicant for each plat or replat filed with the board for approval and may require a completion bond in a reasonable amount for all paving of streets and sidewalks prior to construction and may also require a maintenance bond in a reasonable amount to be in force for a period of one year following final approval of a newly completed paving project.”
K.S.A. 19-2905 must be read in conjunction with K.S.A. 19-2901 which sets forth the area under county control. That area is:
“[A]ll lands within any township in said county which lie outside the limits of any incorporated city may be zoned according to the provisions of this act . . .
The 1939 enactment of K.S.A. 19-2905 states:
“All plans, plats or replats of lands laid out in building lots and the streets, alleys or other portions of the same intended to be dedicated for public use, or for the use of purchasers or owners of the lots fronting thereon or adjacent thereto, and plans and descriptions of all streets, alleys, or public ways intended to be deeded or dedicated for public use, or for the use of purchasers or owners of the land fronting thereon or adjacent thereto, which is not intended to be platted into lots or other designated tracts, shall be submitted to the zoning board for their consideration and their recommendation shall then be submitted to the county commissioners for their official consideration and action, and no such plat or replat or dedication or deed of street or public way shall be filed with the register of deeds as provided by law until such plat or replat or dedication or deed shall have endorsed on it the fact that it has first been submitted to the zoning board and by the zoning board to the county commissioners, and by the county commissioners duly approved. Before exercising the powers referred to above, the zoning board shall adopt regulations governing the subdivision of land within its jurisdiction. Such regulations may provide for the proportionate area of streets in relation to other existing or planned streets and to the mapped plan for adequate and convenient open spaces for traffic, utilities, access for fire-fighting apparatus, recreation, light and air and for the avoidance of congestion of population, including minimum width and area of lots.” L. 1939, ch. 165, § 5.
The 1945 amendment specified a clearer “chain of command” regarding who was required to approve the plat, replat, dedication or deed. See L. 1945, ch. 171, § 2. The 1949 amendment deleted a reference to “the mapped plan.” See L. 1949, ch. 206, §2.
The 1953 amendments again referred to the section of the statute requiring approval of the zoning board and county commissioners prior to the filing of the plat, replat, dedication or deed. The section was shortened and made less specific. See L. 1953, ch. 153, § 2.
In 1957, the legislature amended the statute to state that the regulations adopted by the zoning board could include standards for “adequate drainage and the location and paving of sidewalks, . streets or public ways.” The amendment also authorized the establishment of a scale of reasonable fees to be paid for a plat or replat filed with the county board for approval and the requirement of maintenance or completion bonds. See L. 1957, ch. 185, §1.
In 1970, the statute was amended to add flood protection and floodplain regulations to the list of items which may be included in the regulations adopted by the zoning board.
In 1939, the legislature enacted K.S.A. 19-2914 et seq. authorizing the adoption of a county comprehensive plan. The 1939 law included K.S.A. 19-2918, which provides for subdivision regulation. That statute currently states:
“Regulations governing subdivision of land; adoption by planning board subject to approval of county commissioners; enforcement within city, when; notice and hearing; bond or surety. The planning board may adopt regulations governing the subdivision of land within that portion of the unincorporated area of the county, and the incorporated area of any city upon the written request by resolution of the governing body of such city, when the same shall have been designated by resolution of the board of county commissioners for that purpose. No such regulations or changes or amendments thereto adopted by a county planning board shall become effective unless and until the same has been submitted to and approved by the board of county commissioners and no such regulations or changes or amendments thereto adopted by a joint committee as hereinafter provided shall become effective unless and until the same has been submitted to and approved by both the board of county commissioners and the governing body of the city. Such regulations may provide for the location and width of streets, building lines, open spaces for traffic, utilities, access for fire-fighting apparatus; recreation, light, and air, for the avoidance of congestion of population, including minimum width and area of lots and for flood protection and floodplain regulations. Such regulations may also, as a condition to the approval of any plat, require and fix the extent to which and the manner in which streets shall be graded and improved, and water, sewers, drainage and other utility services and public improvements shall be provided, to protect public health and general welfare. Such regulations may provide that in lieu of the completion of such work and installation previous to the final approval of the plat, the planning board may accept, on behalf of the county, a corporate surety bond, cashier’s check, escrow account or other like security in an amount to be approved by the board of county commissioners conditioned upon the actual construction of such improvements and utilities within a specified period, in accordance with such regulations, and the board of county commissioners are hereby empowered to enforce such bond by all legal and equitable remedies. Such regulations shall be adopted, changed, or amended only after a public hearing has been held thereon, public notices of which shall be given once each week for two (2) consecutive weeks in the official county newspaper which hearing shall be held not less than twenty (20) days after the last publication.”
Pursuant to G.S. 1949 §§ 19-2901 through 19-2937, as amended, now K.S.A. 19-2901 through 19-2937, the Saline County Board of County Commissioners adopted and enacted comprehensive zoning and planning and subdivision regulations, effective May 28, 1953. That zoning and master plan resolution was in effect at all times after its publication date and was amended on March 14, 1978 by Resolution 783. The resolution adopted comprehensive zoning and subdivision regulations entitled Official Zoning and Subdivision Regulations for the Unincorporated Area of Saline County, Kansas. That plan includes regulations governing platting; section f provides:
“Filing of Final Plat. The final plat shall be filed with the County Register of Deeds within one (1) year after written approval by the Governing Body . . . .”
The county’s authority under the statute and the resolution is challenged by the City of Salina.
K.S.A. 12-701 through 12-735 encompass the city planning and zoning statutes. That set of statutes is divided into these subsections:
1) City planning and subdivision regulations - K.S.A. 12-701 through 12-706a;
2) Establishment of city districts and zones - K.S.A. 12-707 through 12-715d;
3) Joint cooperation in area planning - K.S.A. 12-716 through 12-724;
4) Planned unit development in cities and counties - K.S.A. 12-725 through 12-733;
5) Floodplain regulation - K.S.A. 12-734 through 12-735.
K.S.A. 12-705 was originally enacted in 1921. That law stated:
“All plans, plats or replats of lands laid out in building lots, and the streets, alleys or other portions of the same intended to be dedicated to public use, or for the use of purchasers or owners of lots fronting thereon or adjacent thereto and located within the city limits of a city of the first class, having a population of more than 20,000, or any addition adjoining and connecting with such city, shall be submitted to the city planning commission for their consideration and their recommendation shall then be submitted to the mayor and council or board of commissioners of such city for their official consideration and action. And no such plat or replat shall be filed with the register of deeds as provided by law until such plat or replat shall have endorsed upon it the fact that it has first been submitted to the city planning commission and by the city planning commission to the mayor and council or board of commissioners of such city and by such mayor and council or board of commissioners duly approved.” L. 1921, ch. 99, § 5.
The law originally covered cities of the first class and was limited to the land within the city and land adjoining and connecting with the city. In 1923, the law was amended to add cities of the second and third class. See L. 1923, ch. 92, § 5. In 1929, the legislature enacted several amendments to the statute. The most important amendment, for the purposes of this case, is the proviso that the territory outside the city limits is “within same county in which said city is located and entirely or in part within two miles of the nearest point on the city limits of any such city.” See L. 1929, ch. 108, § 1.
In 1931, the statute was amended to change the limit of the territory outside the city limits to three miles. The following amendment, providing for the adoption of regulations, was also added:
“Before exercising the powers referred to above, the city planning commission shall adopt regulations governing the subdivision of land within its jurisdiction. Such regulations may provide for the proper area of streets in relation to other existing or planned streets and to the mapped plan for adequate and convenient open spaces for traffic, utilities, access of fire fighting apparatus, recreation, light, and air, and for the avoidance of congestion of population, including minimum width and area of lots.” L. 1931, ch. Ill, § 1.
Pursuant to K.S.A. 12-701 et seq., the City of Salina, on December 2, 1963, enacted a comprehensive set of regulations entitled “Subdivision Regulations of the Salina City Planning Commission of Salina, Kansas.” Those regulations established jurisdiction of all land within the city and within the three-mile area surrounding the city limits.
In 1965, Senate Bill 288 amended K.S.A. 12-702,12-704,12-705 and 12-706 and repealed K.S.A. 13-1108 through 13-1114, 13-1114a and 13-1413. The statutes in chapter 13 will be discussed later in this opinion. The amendment to K.S.A. 12-705 reorganized the statute to reflect its present form. That amendment was as follows:
“Existing K.S.A. 12-705 is hereby amended to read as follows: 12-705. The city planning commission of any city which has adopted a comprehensive plan may adopt and may amend regulations governing the subdivision of land located within an area which shall be designated by resolution of the governing body of the city for this purpose. Such area shall include the incorporated area of the city and may include any unincorporated territory lying outside of but within three (3) miles of the nearest point on the city limits provided such territory is within the same county in which such city is located and does not extend more than one-half of the distance between such corporate limits and the corporate limits of another city which has adopted regulations under the provisions of this section. Before the adoption of such regulations or any amendments thereto, the planning commission shall cause a notice of a hearing to be held thereon to be published in the official city newspaper. Such notice shall be published once in the official city newspaper at least twenty (20) days prior to the date of such hearing. No such regulations or changes or amendments thereto adopted by a city planning commission shall become effective unless and until the same has been submitted to and approved by the governing body of the city and no such regulations or changes or amendments thereto adopted by a joint committee as hereinafter provided, shall become effective unless and until the same has been submitted to and approved by both the board of county commissioners and the governing body of the city. Such regulations may provide for the harmonious development of the community, including the proper location and width of streets, and for building lines, open spaces, safety and recreational facilities and for the avoidance of congestion of population, including minimum width, depth and area of lots and compatibility of design. Such regulations may also as a condition to the approval of any plat require and fix the extent to which and the manner in which streets shall be improved . . . .” L. 1965, ch. 131, § 4.
In 1970, K.S.A. 12-705 was amended to authorize the enactment of regulations pertaining to floodplains and flood protection. See L. 1970, ch. 71, § 5.
The 1971 amendments provide that the regulations may reserve or dedicate land for open space for either public recreational use “or for the future use of the residents of the residential subdivisions in order to insure the proper balance of use, design or urban areas and avoid the overcrowding of land.” See L. 1971, ch. 45, §1-
Within the 1965 enactment, K.S.A. 12-705a and 12-705b were created. K.S.A. 12-705a has not been amended since it was enacted in 1965. It provides:
“loint committee for subdivision regulation; membership; authority; act inapplicable to municipalities operating under 12-716 to 12-721. If the area designated by the governing body of the city shall include any area lying outside of the city and governed by the regulations of the county, a copy of the resolution of the governing body designating such area shall be certified to the board of county commissioners or if at any time subsequent to the adoption of regulations governing the subdivision of land by the city planning commission, the board of county commissioners shall by resolution designate an area for such purposes which shall include lands lying within the area designated and governed by regulations of the city, the board of county commissioners shall certify a copy of such resolution to the governing body of the city and regulations governing the subdivison of land within the area designated by the city shall be adopted and administered in the manner hereinafter provided. Within sixty (60) days after the date of the certification of said resolution by the board of county commissioners or the governing body of the city there shall be established by joint resolution of said board of commissioners and governing body, a joint committee for subdivision regulation which shall be composed of three (3) members of the county planning board and three (3) members of the city planning commission to be appointed by the chairmen of such board and commission and one (1) member to be selected by the six members. Such joint committee shall have such authority as is provided by law for county planning boards and city planning commissions relating to the adoption and administration of regulations governing the subdivision of land within the area of joint designation. Regulations adopted by the county or city and in effect at the time of the certification of such resolution by the board of county commissioners or the governing body of the city shall remain in effect until new regulations shall have been adopted by the joint committee or for a period not exceeding six (6) months from and after the date of the certification of such resolution: Provided, That the provisions of this section shall not apply to any county and city which are jointly cooperating in the exercise of planning authorities under the provisions of K.S.A. 12-716 to 12-721, inclusive, and amendments thereto.” L. 1965, ch. 131, § 5.
It is interesting to note K.S.A. 19-2918b, enacted in 1965, provides an identical procedure to that set forth in K.S.A. 12-705a. K.S.A. 19-2918b currently provides:
“Same; certification of resolutions of county commissioners and governing bodies of cities; joint committee for subdivision regulation; regulations; inapplicability to certain municipalities. If the area designated by the board of county commissioners shall include lands lying within any area designated and governed by the regulations of any city, a copy of the resolution of the board of county commissioners shall be certified to the governing body of said city or if at any time subsequent to the adoption of regulations governing the subdivision of land by the county, the governing body of any city shall by resolution designate an area for such purposes which shall include lands lying within an area designated and governed by regulations of the county, the governing body of such city shall certify a copy of such resolution to the board of county commissioners and regulations governing the subdivision of land within the area designated by the city shall be adopted and administered in the manner hereinafter provided. Within sixty (60) days after the date of the certification of said resolution by the board of county commissioners or the governing body of the city there shall be established by joint resolution of said board of commissioners and governing body, a joint committee for subdivision regulation which shall be composed of three (3) members of the city planning commission to be appointed by the chairmen of such board and commission and one (1) member to be selected by the six (6) members. Such joint committee shall have such authority as is provided by law for county planning boards and city planning commissions relating to the adoption and administration of regulations governing the subdivision of land within the area of joint designation. Regulations adopted by the county or city and in effect at the time of the certification of such resolution by the board of county commissioners or the governing body of the city shall remain in effect until new regulations shall have been adopted by the joint committee or for a period not exceeding six (6) months from and after the date of the certification of such resolution: Provided, That the provisions of this section shall not apply to any county and city which are jointly cooperating in the exercise of planning authorities under the provisions of K.S.A. 12-716 to 12-721, inclusive.” L. 1965, ch. 178, §6.
K.S.A. 12-705b enacted in 1965 has been amended twice. The original enactment stated:
“Whenever .any such regulations governing the subdivision of land under the provisions of this act shall have been adopted, the owner or owners of any land located within the area governed by such regulations subdividing the same into lots and blocks or tracts or parcels, for the purpose of laying out any subdivision, suburban lots, building lots, tracts or parcels or any owner of any land establishing any street, alley, park or other property intended for public use or for the use of purchasers or owners of lots, tracts or parcels of land fronting thereon or adjacent thereto, shall cause a plat to be made which shall accurately describe the subdivision, lots, tracts or parcels of land giving the location and dimensions thereof or the location and dimensions of all streets, alleys, parks or other properties intended to be dedicated to public use or for the use of purchasers or owners of lots, tracts or parcels of land fronting thereon or adjacent thereto and every such plat shall be duly acknowledged by the owner or owners thereof. All such plats shall be submitted to the city planning commission or to the joint committee for subdivision regulation if such has been formed, which shall determine if the same conforms to the provisions of the subdivision regulations. If such determination is not made within sixty (60) days after the plat has been submitted for consideration, such plat shall be deemed to have been approved and a certificate shall be issued by the secretary of the planning commission or joint committee upon demand. If the planning commission or joint committee shall find that the plat does not conform to the requirements of the subdivision regulations, it shall notify the owner or owners of such fact. If the plat conforms to the requirements of such regulations, there shall be endorsed thereon the fact that it has been submitted to and approved by the city planning commission or joint committee. The planning commission or joint committee may establish a scale of reasonable fees to be paid in advance to the secretary of the planning commission or joint committee by the applicant for approval for each plat filed with the planning commission or joint committee. No building permit shall be issued for the construction of any structure upon any lot, tract or parcel of land located within the area governed by the subdivision regulations that has been subdivided, resubdivided or replatted after the date of the adoption of such regulations by the governing body or governing body and board of county commissioners but which has not been approved in the manner provided by this act and the register of deeds shall not file any plat as provided by law until such plat shall bear the endorsement hereinbefore provided.” L. 1965, ch. 131, § 6.
The 1967 amendment added a section stating the regulations adopted with regard to subdividing lots shall provide for the issuance of building permits on lots divided into “not more than two (2) tracts without having to replat said lot, provided that the resulting tracts shall not again be divided without replatting.” The remainder of the amendment provided additional requirements for the procedure to be followed in issuing building permits. See L. 1967, ch. 87, § 1.
The most recent amendment, enacted in 1973, refers to the proviso regarding lots zoned for industrial purposes.
The final set of statutes important to this case is K.S.A. 13-1108 through 13-1114a. These statutes were first enacted in 1941 and were repealed in 1965. They operated in conjunction with K.S.A. 12-701. The act originally and up until its repeal, dealt with cities of the first class that had created a city planning commission. K.S.A. 13-1109, originally enacted in 1941, remained relatively unchanged until its repeal in 1965. It stated in part:
“It shall be the duty of the planning commission to make or cause to be made, and to adopt, a master city plan for the physical development of the municipality, and of any land outside of the municipality, which in the opinion of the commission bears relation to the planning of the municipality.” L. 1941, ch. 139, § 2.
Prior to its repeal, K.S.A. 13-1111 provided:
“Whenever a planning commission shall have adopted a major street plan and shall have filed a certified copy of such plan with the governing bodies, then no plat of the subdivision of land lying within the city for which such major street plan has been prepared, or within three miles of the corporate limits thereof, shall be filed or recorded until it shall have been approved by such planning commission and governing body and such approval entered in writing upon the plat by the chairman and secretary of the commission and the mayor and city clerk of said city." (Emphasis added.) L. 1941, ch. 139, § 4.
The following discussion of the legislative history of these city and county statutes governing platting, planning, zoning and subdivision regulation reveals confusion and conflict regarding the state of the law prior to 1965. The City argues this conflict confirms its contention that the statutes which were enacted between the years 1921 and 1965 in both the county and the city sections of the statute books were so conflicting that later statutes control in each case. The City argues that K.S.A. 12-701 et seq. and 13-1108 through 13-1114a governed platting and zoning in municipalities in the surrounding territory outside of municipalities. The city statutes in chapter 12 were enacted between 1921 and 1931. The city statutes in chapter 13 were enacted in 1941. The county statutes, with the exception of K.S.A. 19-2633, were enacted in 1939. The amendments to those statutes thereafter are relatively unimportant to this case. The City, therefore, concludes that prior to the revisions made in 1965, the county laws were substantially supplanted by amendments to K.S.A. 12-705 and by 13-1108 through 13-1114. Additionally, the City argues the 1965 law, enacting 12-705a and 12-705b further confirms that repeal and extends city control to the issuance of building permits for the construction in such area.
We shall not attempt to reconcile the confusion, except to provide the following observations. In Johnson v. McArthur, 226 Kan. 128, 135, 596 P.2d 148 (1979), we stated:
“The fundamental rule of statutory construction, to which all other rules are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes.”
Repeal by implication is not favored and acts “will not be held to have been repealed by implication unless a later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect.” Jenkins v. Neuman Memorial County Hospital, 212 Kan. 92, Syl. ¶ 1, 510 P.2d 132 (1973). See City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56 (1972), and Pederson v. Russell State Bank, Executor, 206 Kan. 718, 481 P.2d 986 (1971).
In determining legislative intent, we note in 1965, the legislature attempted to reconcile the prior conflict by repealing the chapter 13 statutes previously discussed and enacting additional county and city statutes designed to provide equal authority to both governing bodies. This act, of amending statutes in chapter 19, rather than repealing them, coupled with the added authority given the governing body of the county is strong evidence of an intent to clarify rather than repeal. Finally, we note that in 1970 the legislature amended K.S.A. 19-2905, one of the county statutes allegedly repealed by implication. Clearly, the legislature recognized the statute’s existence as an integral part of the county’s authority over platting and subdivision regulation. We find that although the state of the law in this area prior to 1965 was in conflict, the legislature did not intend to repeal K.S.A. 19-2905 by implication when K.S.A. l2-705a and 12-705b were enacted. We adhere to the following statement from City of Council Grove v. Schmidt, 155 Kan. 515, 519, 127 P.2d 250 (1942):
“It is the recognized rule that where successive acts of the legislature covering the same subject are in conflict with each other, the conflicts shall be resolved and both acts given effect, if possible, but if they are not reconcilable, the last expression of the legislature prevails, and this is true notwithstanding the conflicting acts were carried forward into an official revision and codification enacted by the legislature.”
The current laws contemplate that either the county or the city is available for planning and subdivision regulation in every part of the unincorporated area of a county, under all circumstances. Should a conflict arise, a joint committee is formed at the request of either entity. If the area designated for regulation by the city is outside the city and is within the area governed by county regulations, the city shall send the county a copy of its resolution designating the area in question and a joint committee shall be formed for subdivision regulation. K.S.A. 12-7Q5a. If the City had first designated the unincorporated area for regulation, then the county would initiate the action by sending a resolution designating the area in question. K.S.A. 19-2918b. In this case neither party took action to obtain a joint commission on subdivision regulation. The duty to initiate fell upon the City since the county designated the area for regulation in 1953, ten years prior to the City’s action. For whatever reason, the City chose not to avail itself of the remedy afforded by K.S.A. 12-705a, leaving the county in control of the unincorporated area. It then follows there was no requirement that the City approve the “Commerford Final Plat” prior to its recording.
Although K.S.A. 19-2633 has no direct application to this case because the land in question is located more than one mile from the city limits but still within the three mile unincorporated area, the parties have included it within their stipulated issue. We find although the statute was not repealed by the enactment of K.S.A. 12-705a and K.S.A. 12-705b, its provisions are not encompassed by K.S.A. 19-2901 et seq., and in particular K.S.A. 19-2905. This irreconcilable conflict results in the statute’s repeal by implication.
Appellant raises three other issues on appeal, none of which were presented to the trial court. We have repeatedly held an issue presented for the first time on appeal will not be considered by this court. Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 413, 582 P.2d 244 (1978); In re Estate of Barnes, 218 Kan. 275, 280, 543 P.2d 1004 (1975); Landrum v. Taylor, 217 Kan. 113, 120, 535 P.2d 406 (1975); Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, 635, 527 P.2d 1059 (1974); Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 901, 522 P.2d 401 (1974); Dinesen v. Towle, 3 Kan. App. 2d 505, 509, 597 P.2d 264, rev. denied 226 Kan. 792 (1979); Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 78-79, 589 P.2d 643, rev. denied 225 Kan. 844 (1979). We, therefore, decline to address those issues.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from a conviction of theft by deception (K.S.A. 1979 Supp. 21-3701[b]). The Court of Appeals in a published opinion, State v. Saylor, 4 Kan. App. 2d 563, 608 P.2d 421 (1980), reversed and remanded with directions to grant the defendant a new trial on the lesser included offense of attempt to commit theft by deception. We granted review on petition of the State.
The facts in the case are well summarized in the opinion of the Court of Appeals. On September 27, 1978, in the city of Lawrence, a K-Mart store security officer observed the defendant, Glenn Lee Saylor, as he made numerous trips through the store placing items in his shopping cart. He would go to the hardware department with items in the cart, but would leave that department with an empty cart. The security officer observed the defendant move about in one particular area, but was unable to see exactly what he was doing. She saw him take a bottle of glue to the area, use it, and then return it to a counter. The defendant then made a minor purchase and left the store. The security officer notified her supervisor. On investigation, she found in the hardware department a cardboard box which should have been located in the toy department and which ordinarily would contain a $13.97 plastic pig toy chest. The cover of the box had recently been resealed with glue. The security officer did not 'move or otherwise touch the box. When the defendant returned to the store later that evening, the security officer and the police were on hand. The defendant went to the hardware department where he placed the box in a shopping cart. He proceeded to the checkout counter and paid for two items — a quart of oil and a plastic pig toy chest priced at $13.97. The checkout cashier did not suspect there was anything wrong. The defendant was arrested outside the store in the parking lot. There the box was opened and found to contain several chain saws, metal rules, cigarettes, heavy duty staple guns, and record albums, with a total value in excess of $500. The defendant was arrested for theft. He was charged with and convicted of theft by deception under K.S.A. 1979 Supp. 21-3701(6).
The defendant appealed raising several points of alleged error. The Court of Appeals reversed the conviction, finding error in the trial court’s failure to instruct the jury on attempted theft by deception. Noting this court’s decision in State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978), the Court of Appeals held that, since there had been no actual reliance by or actual deception of the corporate victim, K-Mart, the defendant could only be guilty of attempted theft by deception. The Court of Appeals reversed the conviction and directed a new trial on attempted theft by deception.
On petition for review, the State of Kansas urges this court to reconsider the elements of theft by deception as enumerated by Finch, claiming that by interpreting 21-3701(6) to require reliance by or actual deception of the owner, the court added to the offense of theft an element not contained in the statutory definition. Alternatively, the State argues that the present case is distinguishable from Finch, claiming that there was actual deception in this case, at least in part, since the checkout cashier was totally unaware of defendant’s larcenous intent and no one within the employment of K-Mart had more than a suspicion of defendant’s scheme at the time defendant purchased the merchandise and left the store with the box. The State finally argues that, under the consolidated theft statute, a conviction of theft should be sustained, even though the burden of proof is not met as to the offense specified in the indictment or information, if the evidence supports conviction of theft under any other subsection of K.S.A. 1979 Supp. 21-3701.
We have reconsidered the rule announced in State v. Finch, and have concluded that it is a correct statement of the law. The syllabus in Finch states the rule which is consistent with prior decisions of this court and with the rule generally accepted throughout the United States:
“In order to convict a defendant of theft by deception under K.S.A. 21-3701(6) the state must prove that the defendant with the required intent obtained control over another’s property by means of a false statement or representation. To do so the state must prove that the victim was actually deceived and relied in whole or in part upon the false representation.”
The rationale of the rule and the reasons why it was adopted by this court are discussed in depth in that opinion. We have concluded, however, that, under its particular facts, the present case is distinguishable from Finch, in that the K-Mart checkout cashier, who permitted the defendant to leave the store premises with the box, was completely unaware of the true contents hidden in the box and relied upon the deception practiced by the defendant at that time.
The State argues that the defendant could have properly been charged under section (a) of K.S.A. 1979 Supp. 21-3701, since the evidence established that the defendant, with intent to deprive the owner permanently of the possession, use, or ownership of the owner’s property, exerted unauthorized control over the property by concealing the articles in the cardboard box. We agree with the State. It is clear to us that where a customer in a self-service store conceals on his person, or in a box or receptacle, property of the store and has the requisite specific criminal intent, that customer has committed a theft under subsection (a) of K.S.A. 1979 Supp. 21-3701. The specific criminal intent is difficult to prove, however, unless the customer actually fails to make proper payment for the property at the cashier’s desk and leaves the store with the same remaining concealed. In this case, the defendant was not specifically charged under subsection (a) of K.S.A. 1979 Supp. 21-3701. The State did not seek to amend the information to include that subsection, nor was an appropriate instruction on that subsection given to the jury. The State thus relied only on proving theft by deception under subsection (b). The conviction of the defendant must stand or fall on the sufficiency of the evidence to show that the defendant, with the required specific intent, obtained control over the property by deception. We have concluded that the evidence was sufficient and that an instruction on attempted theft was not required.
In concluding that the evidence established a completed theft by deception, the trial court pointed out that the security employees of K-Mart had only a suspicion that the defendant was planning to steal articles of merchandise from the store. The actual merchandise taken was not determined until the box was opened following the defendant’s arrest in the parking lot. We think it also important to note that the act of deception and false representation did not actually occur until the defendant deceived the cashier into believing that the box contained a plastic pig toy chest of a value of $13.97.
The rule of Finch simply requires the State to prove that the victim was actually deceived and relied wholly or in part upon the false representation made by the defendant. We note that this same result was reached under similar factual circumstances in Lambert v. State, 55 Ala. App. 242, 314 So. 2d 318, cert. denied 294 Ala. 763 (1975). In Lambert, it was held that reliance upon a misrepresentation was proved in a prosecution for false pretense, although the evidence showed that numerous persons in the store knew of defendant’s scheme to change price tags on merchandise, where the checkout girl to whom defendant took the falsely priced merchandise relied upon the false representation as to those prices and parted with the merchandise, having no knowledge of the defendant’s scheme. Since the undisputed evidence in this case showed the cashier at the checkout counter at K-Mart relied upon the false representation made by the defendant as to the contents of the box and permitted defendant to take control of the box and its contents outside the confines of the store, we hold that the trial court did not err in concluding that there was the required reliance and thus an instruction on the lesser offense of attempted theft by deception was not required.
We now address the contention of the State that, under the consolidated statute, K.S.A. 1979 Supp. 21-3701, a conviction of theft may be upheld even though the burden of proof is not sustained as to the particular subsection specified in the information, if the evidence supports the conviction of theft under any one of the other subsections. We agree with the State that the primary purpose of the consolidated theft statute was to eliminate the complexities of pleading and proving the vague historical distinctions in the various types of theft. See comment, Judicial Council, 21-3701 (1968). Professor Paul E. Wilson, in his article, Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385 (1972), makes the following observation:
“[C]onsolidation should eliminate the procedural difficulties that sometimes result from the fact that boundaries between the traditional theft crimes are obscure and the defendant who is charged with one crime cannot be convicted by proving another. An inexperienced- — or even an experienced — prosecutor may have difficulty in determining whether a given set of facts indicates larceny, false pretense, or embezzlement. And even though the right charge is selected, a conviction based on borderline facts is more likely to be challenged on appeal. The objective, then, has been to define the crime broadly enough to include all vaguely separated theft offenses, so that evidence of appropriation by any of the forbidden methods will support the charge.”'p. 393.
Likewise, the Model Penal Code, § 223.1 (Proposed Off. Draft, May 4, 1962), provides:
“(1) Consolidation of Theft Offenses. Conduct denominated theft in this Article constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this Article, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the Court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.”
Under the former Kansas code as it existed prior to the adoption of the present code, effective July 1, 1970, the crime of false pretenses was covered by K.S.A. 21-551 and 21-552 (Corrick, 1964). The legislature recognized the difficulties of proof in this area by enacting K.S.A. 21-553 (Corrick, 1964):
“21-553. Conviction of larceny under 21-551, 21-552. If upon the trial of any person indicted for any offense prohibited in the last two sections, it should be proved that he obtained the money or other thing in question in such manner as to amount in law to a larceny, he shall not by reason thereof be entitled to an acquittal, but he shall be convicted and punished as if the offense had been proved as charged.”
In Talbot v. Wulf, 122 Kan. 1, 5, 251 Pac. 438 (1926), this court stated that 21-553 was designed to prevent a failure of justice on account of a variance between pleading and proof dependent on the distinction between the crime of larceny and the crime of obtaining property by false pretense.
It is obvious to us that one of the purposes of the enactment of the consolidated theft statute, K.S.A. 21-3701, was to avoid the pitfalls of pleading where a defendant might escape a conviction for one type of theft by proof that he had committed another type of theft. There is now only the single crime of theft which is complete when a man takes property not his own with the intent to take it and deprive the owner thereof. A defendant may be convicted of theft upon proof of facts establishing either embezzlement, larceny, receiving stolen property, or obtaining property by false pretense. It has long been the law of Kansas that an accusatory pleading in a criminal action may, in order to meet the exigencies of proof, charge the commission of the same offense in different ways. In such a situation, a conviction can be upheld only on one count, the function of the added counts in the pleading being to anticipate and obviate fatal variance between allegations and proof. Thus, it has been held proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every possible contingency in the evidence. Williams v. Darr, 4 Kan. App. 2d 178, 180-81, 603 P.2d 1021 (1979); State v. Hagan, 3 Kan. App. 2d 558, 598 P.2d 550 (1979); State v. Pierce, et al., 205 Kan. 433, 469 P.2d 308 (1970); State v. Emory, 116 Kan. 381, 226 Pac. 754 (1924); and State v. Harris, 103 Kan. 347, 175 Pac. 153 (1918).
Where there is a question in the mind of the prosecutor as to what the evidence will disclose at trial, the correct procedure is to charge the defendant in the alternative under those subsections of K.S.A. 1979 Supp. 21-3701 which may possibly be established by the evidence. This may properly be done under Kansas law by charging several counts in the information to provide for every possible contingency in the evidence. By so doing, the jury may properly be instructed on the elements necessary to establish the crime of theft under any of the subsections charged and the defendant will have no basis to complain that he has been prejudiced in his defense.
It should also be noted that, under K.S.A. 1979 Supp. 22-3201(4), a trial court may permit a complaint or information to be amended at any time before verdict or finding if no additional crime is charged and if substantial rights of the defendant are not prejudiced. Following that statute, we have a number of decisions which hold that it is proper for the State to amend the information during trial by adding words which change the method by which the particular crime was committed in the particular case. For example in State v. Lamb, 215 Kan. 795, 798, 530 P.2d 20 (1974), the State was permitted to amend a charge of kidnapping by adding the words “or deception” to the allegation “by means of force,” since there was evidence presented in the case that the kidnapping was accomplished both through force and deception. In State v. Bell, 224 Kan. 105, 106, 577 P.2d 1186 (1978), the State was permitted to amend certain counts in the information, charging kidnapping, to add the words “by force and deception” to make the information conform to the evidence presented. See also State v. Rives, 220 Kan. 141, 144-45, 551 P.2d 788 (1976) (where the information was amended to charge that the defendant took the purloined property “from the presence of” a named individual rather than “from the person of” the same individual); State v. Ferguson, 221 Kan. 103, 105, 558 P.2d 1092 (1976) (where the State was permitted to amend the date of the violation originally charged in the information). In this case, as mentioned above, the State did not seek to amend the charge of theft contained in the information to include an allegation of theft under subsection (a) of K.S.A. 1979 Supp. 21-3701 and the jury was not instructed on that charge. Thus, the jury could not properly consider the question of defendant’s guilt or innocence of the crime of theft under subsection (a).
In closing, it should be noted that we have considered the other point of complained error raised in defendant’s brief that the district court erred in allowing the State to introduce certain rebuttal testimony. We find this point to be without merit.
For the reasons set forth above, we hold that the judgment of the district court upholding the conviction of the defendant for theft by deception (K.S.A. 1979 Supp. 21-3701[fe]) is affirmed. It is further ordered that the judgment of the Court of Appeals is reversed for the reasons set forth in the opinion. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by Doral Eugene Steckman from a decree of adoption granted in the Stafford District Court. Steckman, the natural father of Sammy and Millie Steckman, is contesting his children’s adoption by Glen Courtney, their stepfather, because he did not give his consent.
Steckman and Mildred Rebecca Steckman, now Courtney, were divorced June 2,1976. Mildred received custody of the two minor children, Sammy and Millie. Steckman was granted visitation rights consisting of alternate Saturdays and Sundays of each month and was ordered to pay child support of seventy-five dollars on the first and fifteenth of each month. On August 26, 1977, the former Mrs. Steckman married Glen Courtney. The Courtneys and the two children have lived together as a family since that time, supported by Glen Courtney.
On September 6,1978, with the consent of Mrs. Courtney, Glen Courtney petitioned the Stafford District Court for the adoption of Sammy and Millie. The district court entered its order of adoption on June 7, 1979, finding Steckman had failed to support the children and had “failed the natural and moral duty of a parent to show affection, care and interest toward his children . . . .” The court relied upon K.S.A. 59-2102(3), which provides:
“Before any minor child is adopted, consent must be given to such adoption:
(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent . . .
The court’s findings of fact in support of its order state:
“That in the two years preceding the filing of the petition for adoption, that there was one birthday gift to Doral Samuel Steckman, the son in 1976. No birthday gifts to Mildred Mae Steckman. At Christmas 1976 there was a $10.00 gift to each child.
“In 1977 there was a telephone call to Doral Samuel Steckman on his birthday but no gift to Mildred Mae Steckman on her birthday. On Christmas 1977 there was a gift to each child, but the children were not at home.
“In June of 1978 a present for Sammy and the natural father stopped by the swimming pool sometime during that summer and saw the children which have been the total contacts by the natural father. The father had moved from the community in June of 1976 and had to return to the area approximately once every three months, but made no attempt to contact the children other than the times indicated.”
The record also indicates Steckman made no child support payments during the two years in question.
Appellant argues he was denied due process of law under the Fourteenth Amendment to the U.S. Constitution when his parental rights were severed by the adoption of his children without his consent and without a finding of his unfitness.
Let us examine the nature of the constitutional rights of parents. The Supreme Court has determined that the liberty guaranteed by the Fourteenth Amendment gives an individual the right to marry, establish a home and bring up children. Meyer v. Nebraska, 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 625 (1923). In Stanley v. Illinois, 405 U.S. 645, 651, 31 L.Ed. 2d 551, 92 S.Ct. 1208 (1972), the U.S. Supreme Court recognized the rights of natural parents stating:
“The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment [citation omitted], the Equal Protection Clause of the Fourteenth Amendment [citation omitted], and the Ninth Amendment [citation omitted].”
The court declared an Illinois statute denying an unwed father a hearing to determine parental qualifications to be contrary to the Equal Protection Clause.
The prior cases graphically illustrate the court’s emphasis on the importance of the family and the nature of a parent’s rights under the Constitution of the United States. In Denton v. James, 107 Kan. 729, 735, 193 Pac. 307 (1920), Justice Burch stated, after citing the Kansas Bill of Rights:
“Man has no higher right or interest or happiness than that for which the words family and home stand. Very often it is said, with a touch of derision, that a child is not a chattel, and a parent has no property in his child giving him right to custody — which is very true. The interest which á parent has in the nurture of his own offspring, and in nearness to them for that purpose, lies in a different plane from that occupied by property; it transcends property. On the child’s side, it has no higher welfare than to be reared by its parents. The state has no higher welfare than to have children reared by their parents, and free government is instituted for the protection and benefit of parenthood as one of the natural rights which the citizen possesses. Acting on these principles, this court holds that welfare of a child is best subserved by leaving it with its natural guardian until it is demonstrated that the parent is unfit to discharge the duties which are correlative to his right. Then, and not until then, does his right yield.”
Custody or severance of parental rights is dependent upon fitness. Adoption without consent is dependent upon forfeiture of parental rights by failure or refusal to exercise parental duties for a period of two consecutive years. K.S.A. 59-2102(3). We have held forfeiture of parental right to consent is not dependent on fitness. In re Adoption of Wilson, 227 Kan. 803, 610 P.2d 598 (1980).
The cases involving stepparent adoptions are the following: In re Waters, 195 Kan. 614, 408 P.2d 590 (1965), involved the minor child Kenji Scott Waters, the son of Arthur Philip Waters and Loretta Waters, born in Japan in 1956 where Waters was teaching school. In 1957 the Waters were divorced and by the terms of a child custody agreement Kenji was placed in the custody of Loretta with Arthur having unlimited rights of visitation while they remained in Japan. In spite of the agreement, Loretta Waters concealed her whereabouts and that of Kenji for the remainder of their stay in Japan. Later in 1957 Loretta and Kenji returned to Colorado. In 1960, Loretta married Alvin R. Zweygardt and since that time Kenji had lived with Loretta and Alvin on a ranch in northwest Kansas. Arthur Waters never saw Kenji after the divorce and made no attempt to visit him even when he was in the same town. Waters paid child support until July 1961, then stopped. This court held that whether a parent has failed or refused to assume the duties of a parent for two consecutive years is a question of fact for the trial court and if supported by substantial competent evidence will not be disturbed, even though the mother acknowledged she had at all times deliberately concealed Kenji from his father. In a dissent joined by Justice Fontron, Justice, now Chief Justice, Schroeder stated:
“The father’s failure to pay money through the mother’s parents for the support of Kenji for a period of two years cannot be legally excused. But this is the only thread of evidence upon which the court can rely to sustain the finding of the trial court, unless it can be said that the failure of the father to search for the child and resort to court action was required. This, however, in my opinion, would be an unwarranted requirement under the circumstances here presented, where the mother is guilty of deliberately concealing the child from the father, and where the issue presented is whether the father has failed to assume the duties of a parent for two consecutive years.
“On this point, in my opinion, the failure of the father to send money for the support of his child, through the mother’s parents, for two consecutive years is mitigated by the deliberate concealment of the child by the mother, and by the further concealment of her whereabouts from the father, in violation of his rights as a natural parent. Under these circumstances, I do not think it can be said the father failed or refused to assume the duty of a parent for two consecutive years. If so, the mother is permitted to take advantage of the child’s father and the natural parent of Kenji by her own misconduct and contempt for the law.
“Perhaps in a situation such as this the child should have a father present in the home where he resides, such as the stepfather in this case, and this may have prompted the probate court and the district court to permit the adoption to stand; but this approach entirely ignores the legal proposition presented and establishes a bad precedent.” In re Waters, 195 Kan. at 620-621. (Emphasis in original.)
In the case of In re Sharp, 197 Kan. 502, 419 P.2d 812 (1966), we held the consent of both natural parents is required except when they have failed or refused to assume the duties of a parent for two consecutive years immediately preceding the filing of the adoption petition. The court adopted a strict construction of the statute in favor of the natural parent. This court defined the term “obligation of a parent” as follows:
“Although a natural parent under a divorce decree is given only rights of visitation with minor children, we are not prepared to say that all the other privileges, duties and obligations of parenthood are thereby excluded. The simple acts whereby a parent may manifest normal affection, care and interest in a child are ordinarily not judicially proscribed. The door is left ajar for the parent to maintain the remaining thread of the parent-child relationship. The exercise of the right of visitation is only one of the many factors to be considered by the court in its ultimate determination.” In re Sharp, 197 Kan. at 508.
In Aslin v. Seamon, 225 Kan. 77, 587 P.2d 875 (1978), the trial court found William Thompson, the natural father of Linda and Tina Foster, had consented to their adoption by David and Marjorie Seamon, while Clara Foster Aslin, their natural mother, had failed to assume her duties as parent for two consecutive years prior to the filing of the petition. The trial court found she forfeited her right because a parental obligation requires more than “ ‘sporadic attempts at having a child returned.’ ” Aslin at 78. The Court of Appeals made new findings of fact and reversed the trial court. We held, in reversing the Court of Appeals, that the question of whether or not an individual has failed or refused to assume the duties of a parent for two consecutive years is a question of fact to be determined by the trial court upon competent evidence after a full and complete hearing, which will not be disturbed on appeal if substantial competent evidence exists to support the findings. See In re Herbst, 217 Kan. 164, 535 P.2d 437 (1975).
We next dealt with a construction of K.S.A. 59-2102(3) in In re Adoption of Wilson, 227 Kan. 803. Dennis and Mary Wilson were married in 1971, had two children, Jason Lee and Jeremy Ray, and were divorced in 1975. Mary obtained custody of the two children and Dennis was ordered to pay $250 per month child support and keep certain insurance in effect. Dennis fell behind on his payments and requested a reduction, which the court allowed. In the meantime, Mary married Glenn L. Patrick in 1976, who petitioned to adopt the two children in 1978. We held Dennis had not assumed his duty as a parent for two consecutive years by his failure to pay child support, or send gifts at Christmas or on holidays. Additionally, he visited the children only once during the two years. Wilson explained his failure by stating he had financial problems and was unable to provide support. He stated he had requested visitation rights in 1977 but Mary had not responded to those requests. Further, he testified he had not sent presents because he respected the religious beliefs of the Patricks, who were Jehovah’s Witnesses. We held the trial court’s findings of fact were supported by substantial competent evidence and thereby rejected Dennis Wilson’s explanation.
We must consider the complications arising from a situation in which one parent obtains custody of the child while the other parent is given limited visitation rights and is ordered to pay child support. Often, the parent with custody designates the terms of visitation, when and where it shall be. In many cases, the spouse who is delinquent in child support is advised there can be no visitation until the financial obligation is paid in full. Often, the parent with custody remarries and moves the child to another area, making it difficult for the dispossessed parent to see the child. The parent with possession of the child is awarded the pleasure of the child’s company and the sum of parental rights with respect to the rearing of the child. That parent has the right to direct the child’s activities and make decisions regarding care, control, education, health and religion. 59 Am. Jur. 2d, Parent and Child § 25, p. 107. The dispossessed parent has very little remaining except an obligation to pay child support and the privilege of a painful visit at a time and place determined by the former spouse.
Considering the previously enumerated problems, typical of broken marriages involving children, and the U.S. Supreme Court’s recognition of the importance of the family, we reaffirm our strict construction of K.S.A. 59-2102, and in particular, section 3 of that statute. In reassessing our holdings in earlier Kansas adoption cases, we interpret K.S.A. 59-2102(3) to refer to those parents who, by their actions, clearly show little or no interest in the welfare of their children. See In re Adoption of Harrington, 228 Kan. 636, 620 P.2d 315 (1980).
Let us now examine the conduct of Doral Eugene Steckman toward his children to determine whether he has failed or refused to assume his parental duties for the two consecutive years immediately prior to this action. He must be judged on the balance of his conduct and attitude toward his children from September 6, 1976, to September 6, 1978. Appellant remembered Sammy’s birthday each year with a present or a phone call. There is no evidence Millie’s birthday was remembered. Both children received Christmas gifts from appellant in 1976 and 1977 and the record shows disputed assertions that Easter and Valentine cards were sent. Steckman visited the children at the time of Sammy’s birthday in 1978, at the swimming pool in Stafford and attempted to visit them in December, 1977, but didn’t make connection due to the children’s absence. Finally, Steckman furnished Blue Cross and Blue Shield medical insurance for the two children the entire two year period.
Although we do not condone Doral Steckman’s refusal to pay child support, his other actions, including concern for the children, visits, observation of birthdays and Christmas and his providing medical insurance, taken cumulatively clearly show he had not failed or refused to assume his parental responsibilities for two consecutive years and his consent was therefore essential for a valid adoption. The evidence does not support the judgment of the district court.
The judgment of the district court is reversed and the decree of adoption is set aside. | [
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The opinion of the court was delivered by
McFarland, J.:
David W. Hollingshead was adjudicated a miscreant child for his involvement in school vandalism and was granted probation. As a part of the disposition the court held:
“IT IS FURTHER ORDERED that there appearing no special reason why the juvenile, David W. Hollingshead, should be further protected under the juvenile code, the record of the charge against him and this disposition shall be opened for publication. THE COURT FURTHER ORDERED, however, that the release for publication of the juvenile’s name and the disposition of this charge be stayed for a period of six (6) days to allow the guardian ad litem an opportunity to file notice of appeal, and if such notice of appeal is filed, the release of the juvenile’s name shall not be made, pending disposition of the appeal or mandate from the Appellate Court.”
On appeal, the juvenile contends the court’s standards for release of juvenile court proceedings for publication purposes are improper. Alternatively, the juvenile contends if the court’s standards are proper, the court acted arbitrarily and capriciously in its application of the standards to this case. The juvenile does not challenge his adjudication or the disposition of the case except as it relates to release of information for publication purposes.
K.S.A. 1979 Supp. 38-805, in effect at all times herein, provides:
“(a) The record in the district court for proceedings pursuant to the Kansas juvenile code shall consist of the petition, process and the service thereof, orders and writs, and reports and evaluations received or considered by the court. Such documents shall be recorded and kept by the court, separate from other records of the court.
“(b) All records, files or other information maintained, obtained or prepared by any officer or employee of the district court in connection with proceedings under the Kansas juvenile code shall be privileged and shall not be disclosed, directly or indirectly, to anyone except:
“(I) A judge of the district court and members of the staff of the court designated by a judge of the district court;
“(2) parties to the proceeding and their counsel;
“(3) a public or private agency or institution providing supervision or having custody of the child under court order;
“(4) to any other person when authorized by a judge of the district court, subject to any conditions imposed by the judge; or
“(5) a court in which such person is convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding, officials of penal institutions and other penal facilities to which such person is committed or a parole board considering such person’s parole or discharge or exercising supervision over such person.
“(c) In order to properly advise the three branches of government on the operation of the juvenile justice system, each district court shall furnish the judicial administrator such information regarding juveniles coming to the attention of the court pursuant to the Kansas juvenile code as is determined necessary by the secretary of social and rehabilitation services and the director of the governor’s committee on criminal administration, on forms approved by the judicial administrator.”
In Nunn v. Morrison, 227 Kan. 730, 608 P.2d 1359 (1980), a parent in a deprived child proceeding was denied access to a portion of the court file pertaining to the pending case and brought a mandamus action to gain access thereto. This court reviewed the legislative history of K.S.A. 38-805 and concluded the 1978 amendments reflect a legislative intent to depart from the former statute granting a trial court total discretion in the area. This court held that K.S.A. 1979 Supp. 38-805(£>)(l), (2), (3), and (5) granted rights of access to juvenile court records to persons within the specified categories and that a trial court may in its discretion allow others access to such records pursuant to K.S.A. 1979 Supp. 38-805(h)(4). K.S:A. 1979 Supp. 38-805(fc)(4) gives the trial court discretion to release records or information concerning juvenile code proceedings to persons who have no statutory right of access thereto, including members of the news media.
The juvenile contends the trial court’s standards for publication improperly place the burden of persuasion on the juvenile to show why such information should not be released. In order to determine this issue we must summarize the standards of the court. It is the policy of the court to release the names of all juveniles adjudicated miscreants or delinquents. As a part of the presentence report the court services officer is to “address the question as to whether or not any legitimate reason exists why the juvenile’s name should not be made public.” At the dispositional hearing, the petitioner, the minor, his parents, or legal representatives are afforded the opportunity to voice their objection or approval to such release of information. The court hears any evidence offered in connection therewith. The court then considers several stated factors and determines whether the information should be released.
The juvenile is confusing the court granting him an opportunity to be heard with burden of persuasion. There is no statutory requirement that a judicial decision to release be made on the evidence in an adversary proceeding. Release of information could occur after arrest. The trial court has established a policy of releasing information only after adjudication and after an opportunity for the juvenile to be heard. A trial court determining a Chapter 38 proceeding has total discretion to release information for publication at any stage of the proceedings, with or without input from the juvenile or his parents. The only limitation on such discretion would be if it were arbitrarily used to discriminate against juveniles of one sex or of a particular racial, ethnic or religious group. No such allegation is made herein nor do the standards reflect any such bias.
Finally, the juvenile argues the court’s standards were not properly applied to him. In support of this contention the juvenile states:
“The juvenile respectfully suggests that the district court was in error when it chose to allow the juvenile’s name to be unconditionally made public in this instant case when the juvenile was 1) only 15 years of age at the time of the commission of the act; 2) that this was his first offense; 3) that the crime was a miscreancy (misdemeanor criminal damage to property); and 4) that the uncontroverted testimony of the mother and juvenile was that they feared detrimental treatment if the offense became public knowledge.”
As previously stated, the trial court has discretion to release information on juveniles for publication pursuant to K.S.A. 1979 Supp. 38-805(b)(4). The trial court has elected to formulate and utilize detailed standards in its exercise of such discretion. The juvenile herein fits squarely within those standards.
No error or abuse of discretion having been shown, the judgment is affirmed. | [
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ON this 3rd day of June, 1980, the petition of Jon K. Lowe, for reinstatement of his privilege to practice law in the State of Kansas comes before the Court.
The Court, after consideration of the petition, the report and recommendations of the Board for Admission of Attorneys and being fully advised in the premises, finds that the recommendations of the Board should be accepted.
The Court further finds that Jon K. Lowe shall be required to take a regularly scheduled bar examination conducted by the Board of Admissions and upon completing such examination with a passing score and upon the filing of his oath, payment of costs and registration fee, the petitioner shall be reinstated to the practice of law.
IT IS SO ORDERED BY THE COURT.
. Attorney reinstated pursuant to order of September 12, 1980. In re Lowe, 228 Kan. 425, 622 P.2d 124. | [
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The opinion of the court was delivered by
Fromme, J.:
These three consolidated appeals are by three defendants who were convicted of various charges of aggravated kidnapping, aggravated sodomy, rape and aggravated robbery arising from a single sordid escapade in which all three defendants participated. It occurred on September 28, 1978, at a floral shop in Wichita, Sedgwick County, Kansas. Two women and one man had remained at the shop after hours that evening to prepare flower arrangements for a wedding which was scheduled the next day.
Four black males entered the premises and ordered the three victims to lie on the floor of the back room of the flower shop. Money was taken from all three victims. Guns were used by the robbers. This formed the basis for the three aggravated robbery charges. One of the women in the shop was fondled by one of the robbers, and then a flower shears was inserted in her vagina. The robbers continued to mistreat and beat her until she became unconscious. She was dragged from the back of the shop into a private parking lot. The second woman was forcibly pulled out through the back door of the shop into the same private parking lot. She saw a naked black male astride the first woman’s hip section and observed his pumping action as he pressed against the body of the unconscious woman. A gun was placed against the eye socket of the second woman as she lay in the parking lot. Her clothes were torn from her lower body. Then while two men took turns and raped her, the third man while holding the gun to her head forced her to take his penis in her mouth.
The removal of the two women from the shop to the parking area behind the shop formed the basis for the aggravated kidnapping charges. Forcing the second woman to take the man’s penis in her mouth was the basis for the sodomy charge and the rape was committed on this same woman. The four black males were charged with these crimes. Those accused included the three named defendants, Clarence E. Ferguson, Daley D. Washington, Jr., and Arzo Tucker, Jr., together with Lawrence E. Evans who pled guilty during the trial to three counts of armed robbery. Evans apparently took no part in the rape and sodomy. The State accepted a plea to three counts of aggravated robbery and dismissed the other counts. Evans turned State’s evidence.
Ferguson, Washington and Tucker were convicted and each filed a separate appeal. The three appeals were consolidated for oral arguments. Several of the points raised are duplicative and may be disposed of by consolidated treatment. Therefore, in the interest of time and space, a consolidated opinion is filed covering all three appeals.
Point one is raised by all three defendants. Request was made for separate trials. It is first claimed the defenses of Tucker and Washington were antagonistic, and secondly, it is claimed none of the charges should have been joined.
In State v. Cameron & Bentley, 216 Kan. 644, 649, 533 P.2d 1255 (1975), this court pointed out that in order for persons who participate in a crime or connected crimes to obtain an order for separate trials, severance must be based on some ground sufficient to establish actual, prejudice. The usual grounds for a severance are (1) the defendants have antagonistic defenses, (2) important evidence in favor of one of the defendants would be admissible at a separate trial but would not be admissible at a joint trial, (3) evidence incompetent and prejudicial as to one defendant would be proper relevant evidence as to another, (4) a confession of one defendant, if found to be admissible, would prejudice the jury against codefendants, and (5) one of the defendants would become a competent and compellable witness in event of separate trials of the other defendants.
Now we turn to the question of separation of charges. Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. K.S.A. 1979 Supp. 22-3202(3); State v. McQueen & Hardyway, 224 Kan. 420, 422, 582 P.2d 251 (1978).
All three defendants sought to establish an alibi defense. It would seem almost impossible to successfully establish antagonistic defenses when all are claiming separate alibi defenses.
As a basis for the claim of antagonistic defenses, Ferguson made an offer of testimony from two fellow jail inmates and from Vem Miller, who were supposed to have overheard Tucker say that Washington was not involved in these crimes. Such evidence if admissible and obtainable would tend to implicate Tucker in the crime and relieve Washington. The proffer was made orally with nothing to actually establish that such testimony was available from Tucker. Tucker did not take the stand. He refused to testify at the trial. Vern Miller was not subpoenaed and he did not testify. His testimony as to Tucker’s statement would have been inadmissible hearsay. The evidence of Washington’s participation in these crimes was overwhelming. He was identified by the three victims and by Evans, an accomplice. In this case the defenses were not antagonistic. The evidence proffered was merely antagonistic to statements of other witnesses. The defenses of alibi were not antagonistic.
We have examined the record of the trial and after applying the rules set out above which govern severances and joinder of charges we hold it was not error to try the three defendants under joint charges at a joint trial.
All three appellants claim error because the court refused a requested instruction cautioning the jury as to consideration of testimony by an accomplice. The accomplice instruction suggested in PIK Crim. 52.18 (1979 Supp.) reads:
“An accomplice witness is one who testifies that he was involved in the commission of the crime with which the defendant is charged. You should consider with caution testimony of an accomplice if it is not supported by other evidenceEmphasis supplied.
In State v. Moody, 223 Kan. 699, 576 P.2d 637, cert. denied 439 U.S. 894. (1978), this court held it was error not to give the above instruction when the accomplice testimony was only partially corroborated. In Moody the court pointed out it may not be reversible error if the matter is sufficiently covered in other instructions given, and after examining the instructions actually given the court in Moody held there was no reversible error. The instructions given in our present case which bear upon the question are:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use that knowledge and experience which you possess in common with men in general, in regard to the matter about which a witness has testified. You may take into account his ability and opportunity to observe and know the things about which he or she has testified, his memory, manner, and conduct while testifying, any interest he may have in the result of this trial, and the reasonableness of his testimony considered in the light of all the evidence in this case.
“If you find that any witness has willfully testified falsely concerning any material matter, you have a right to distrust the testimony of that witness in other matters, and you may reject all or part of the testimony of that witness, or you may give it such weight as you think it deserves. You should not reject any testimony without cause.”
This instruction is almost identical to that given in Moody which was held sufficient to cure the failure to give the accomplice instruction. The trial court has discretion in giving its instructions to the jury and on appeal the instructions should be approved, if, after considering them in their entirety, they properly and fairly state the law as applied to the facts in the case. K.S.A. 60-251(a); State v. Acheson, 3 Kan. App. 2d 705, ¶ 6, 601 P.2d 375, rev. denied 227 Kan. 927 (1979).
All appellants raise the issue of late endorsement of witnesses, Hauk, Brooks, and Evans. K.S.A. 1979 Supp. 22-3201(6) directs the prosecutor to endorse the names of all witnesses known to the prosecutor upon the complaint or information at the time of filing the same. The statute ends by stating:
“Said attorney may endorse thereon the names of other witnesses as may afterward become known to said attorney, at such times as the court may by rule or otherwise prescribe.”
This statute makes late endorsement of witnesses discretionary with the trial court. It may in the interest of truth and justice permit late endorsement of the names of witnesses provided the opposing party or parties are given time to interview said witnesses and provide for cross-checking their testimony. State v. Costa, 228 Kan. 308, Syl. ¶¶ 4, 5, 613 P.2d 1359 (1980). The test to be used in determining whether permission should be granted is whether the defendant’s rights will be prejudiced. State v. Rueckert, 221 Kan. 727, 730, 561 P.2d 850 (1977).
In the present case the trial court stated:
“Counsel may not have been aware of these individuals, but I’m going to give Counsel an opportunity and I think that Counsel have the statements of Cheryl Hauk and Marilyn Brooks that were taken by the Police Department and have had an opportunity this morning to talk with both of these individuals. The Court does not wish to proceed until all Counsel have had an opportunity to eliminate any surprise in endorsing these individuals.
“The Court’s interested in justice. The Court feels that the motion to endorse in its discretion should be sustained and so sustains that motion.”
The defendants at this time were given copies of statements obtained by the prosecution from Marilyn Brooks and Cheryl Ann Hauk and had time to interview the witnesses. None of the appellants requested a continuance of the trial in order to defend against this new testimony. As to Evans, the accomplice, all defense counsel stated they had expected him to testify several days before when it was announced he was being severed from the joint trial and would enter a plea.
In evaluating late endorsement of witnesses the appellate court should not presume prejudice. Actual prejudice must be shown by an appellant such as will impair the ability of a defendant to defend against the charges. State v. Rueckert, 221 Kan. 727; State v. Motor, 220 Kan. 99, 551 P.2d 783 (1976).
All three defendants moved for a mistrial during the trial just before Evans testified and error is claimed thereon.
The applicable statute is K.S.A. 22-3423:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
“(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution;”
The State correctly points out that in State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978), it is stated:
“The granting of a mistrial on this ground lies within the discretion of the trial court. State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113 (1976). A mistrial will not be declared under K.S.A. 22-3423(c) unless the rights of either the defendant or the state have been substantially prejudiced. State v. Rhodes, 219 Kan. 281, 283, 546 P.2d 1396 (1976).”
McCorgary was cited with approval in State v. Cook, 225 Kan. 259, 263, 589 P.2d 616 (1979), where Chief Justice Schroeder stated:
“Terminating a trial and declaring a mistrial on one of the statutory grounds listed in K.S.A. 22-3423 is largely within the discretion of the trial court. A clear showing of abuse of discretion must be shown before the decision of the trial court will be set aside on appeal. State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978); State v. McQueen & Hardyway, 224 Kan. 420, 427, 582 P.2d 251 (1978) and cases cited therein.”
See also State v. Baker, 227 Kan. 377, 383, 607 P.2d 61 (1980).
We have carefully studied the record of the case. The action of Evans in entering a plea and testifying against the remaining defendants was extremely helpful to the State and harmful to the defendants. However, this would be true to a great extent regardless of whether it took place during the trial or before. The State had no control over the time Evans might decide to enter a plea. This court cannot say the trial court abused its discretion when it refused to grant a mistrial for it has not been pointed out what prejudice to defendants would have been prevented by granting a new trial. The testimony of Evans would be equally damaging to the defendants in either case and the outcome of a later trial would appear to be the same in view of the overwhelming evidence of the atrocities committed by those defendants.
All three appellants argue that the facts failed to establish aggravated kidnapping and cite State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), at page 216:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
The defendants argue that since the victims were taken from a place of seclusion (the back room of the flower shop) to an outside place (a parking lot) this was not a kidnapping. The reason given is that this was the reverse of the situation in Buggs where the rape victim was taken from the outdoor parking lot into the Dairy Queen building.
The State, on the other hand, argues the back room of the flower shop was small and the defendants needed more room to rape and sodomize their victims. It is pointed out this happened after dark, behind the shop in a private parking lot, secluded from the view of those who might be passing in front of the shop along the street.
The kidnapping statute, K.S.A. 21-342Q(b), provides:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(b) To facilitate flight or the commission of any crime;”
To be kidnapping under K.S.A. 21-3420(fc) the taking of the victim does not have to be essential to the accomplishment of the underlying crime but it is sufficient if the taking is aimed at making it easier of accomplishment. State v. Buggs, 219 Kan. at 214, 215; see also State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980). The evidence was sufficient to establish a taking of the two women accomplished by force with the intent to hold the women and facilitate the commission of the crimes of rape and sodomy.
The next point is raised by Washington and Tucker and concerns a request to strike the jury panel. During questioning on voir dire a venireman, Kenneth E. Gordon, volunteered statements that the prosecutor had done well in choosing his assistants. He was referring to Miss Tedesco who was trying the case for the prosecution. He volunteered other information which indicated the prospective juror believed the police had to have substantial evidence before filing charges. His volunteer statements were interrupted by the assistant prosecutor and he was successfully removed from the panel for cause. After a court recess and argument on a motion for mistrial the court reconvened for trial. Curative measures were then undertaken by the court and by the assistant prosecutor. The remaining pool of veniremen were advised that any comments by Mr. Gordon were not evidence and should not be considered as such. Each subsequent venireman was examined to assure the court that Mr. Gordon’s comments would not prevent each venireman from rendering a fair and impartial verdict according to the law and the evidence at the trial.
Again, granting a mistrial is a matter within the discretion of the trial court under K.S.A. 22-3423(l)(c) and a mistrial should not be declared unless the rights of either the defendant or the State have been substantially prejudiced. In this case adequate steps to preclude prejudice were taken and no prejudice has been pointed out. State v. McCorgary, 224 Kan. 677. The purpose of voir dire examination of jurors is to determine the state of the minds of the veniremen so that a fair and impartial jury can be chosen. It is generally recognized that even though individual jurors on the panel may have indicated prejudice or bias that is not sufficient ground for a successful challenge to the entire panel. State v. McQueen & Hardyway, 224 Kan. at 427. The point is without merit.
Ferguson raises an issue on the refusal of the trial court to grant a new trial to him based on so-called newly discovered evidence. Ferguson argued on the motion that three handwritten statements allegedly drafted and signed by his codefendant, Arzo Tucker, Jr., constituted newly discovered evidence which entitled Ferguson to a new trial. The statements by Tucker merely alleged that Ferguson was not present when these crimes were committed.
A new trial may be granted under K.S.A. 60-259 for newly discovered evidence when it appears the rights of a party are substantially affected. In order for it to be newly discovered evidence it must be material to the cause of the movant and contain information which the movant with reasonable diligence could not have discovered and produced at the trial.
In State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977), it is stated:
"The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L.Ed.2d 95, 94 S.Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, supra.) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Amey, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, supra.)”
The point is without merit. The trial court gave Ferguson the opportunity to produce his evidence but Mr. Tucker would not back up the proffered written statements. When Tucker would not testify the statements became impermissible hearsay. Coming from an accomplice the evidence would have been questionable. It was in direct contradiction to the testimony of the victims and of Mr. Evans. The credibility of the statements was in grave doubt. There appears no reason why this evidence if admissible could not have been produced at trial, assuming Mr. Tucker would agree to testify. It is doubtful if such evidence would have materially affected or changed the outcome of the trial. We cannot say the trial court abused its discretion in refusing a new trial under the circumstances.
Strangely enough a similar issue was raised and rejected in State v. Bryant, 228 Kan. 239, 246, 613 P.2d 1348 (1980), where this same Clarence Ferguson had signed an affidavit recanting his former testimony at trial and stated that his accomplice Bryant had not participated in a filling station robbery.
Appellant Washington raises one final issue — whether the trial court erred in failing to sustain his motion for judgment of acquittal. Washington argues the evidence was insufficient to connect him with these crimes.
“A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. State v. Rodriquez, 226 Kan. 558, 564, 601 P.2d 686 (1979). . . . The appellate court must be convinced that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980).
Evidence of the participation of Washington in these crimes was overwhelming. All three victims identified Washington at the trial as one of the four men who committed the crimes with which he was charged. Evans testified that Washington was with him in the flower shop. The point is without merit.
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The opinion of the court was delivered by
Davis, J.:
This appeal involves a consumer credit transaction governed by the Uniform Consumer Credit Code, K.S.A. 16a-l-101 et seq. (UCCC). The district court held that the attorney fees provisions in a consumer credit contract violated K.S.A. 16a-2-507 and imposed a $500 penalty against Credit Union One of Kansas under K.S.A. 16a- 5-201(1). The Court of Appeals reversed in an unpublished decision filed August 21, 1992, holding that the attorney fees provisions did not violate K.S.A. 16a-2-507. We granted the defendant consumer’s petition for review.
Credit Union One loaned money to Susan D. Stamm and acquired a security interest in her 1979 Mazda. Stamm defaulted on the loan. The trial court granted Credit Union One a deficiency judgment and granted Stamm a setoff penalty because Credit Union One had sought attorney fees in the contract. The agreement contained the following provision regarding attorney fees:
“The expenses of the credit union for taking possession of and selling the property will be deducted from the money received from the sale. Those costs may include the cost of storing the property, preparing it for sale, and attorney's fees to the extent permitted under state law or awarded under § 506(b) of the Bankruptcy Code.” (Emphasis added.)
On appeal to this court, Stamm claims that the above fee provision violates K.S.A. 16a-2-507 of the UCCC:
“With respect to a consumer credit transaction, the agreement may not provide for the payment by the consumer of attorney’s fees. A provision in violation of this section is unenforceable.” K.S.A. 16a-2-507.
The district court held that the above provisions respecting attorney fees violated K.S.A. 16a-2-507. Pursuant to the following consumer remedies provisions of the UCCC, the district court awarded judgment against Credit Union One in the amount of $500:
“(1) If a creditor has violated the provisions of this act applying to . . . attorney’s fees (section 16a-2-507), . . . the consumer has a cause of action to recover actual damages and in addition a right in an action other than a class action to recover from the person violating such provisions of this act a penalty in an amount determined by the court not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).” K.S.A. 16a-5-201.
Prior to imposing the penalty, the district court stated:
“It is clear to me that creditor has intentionally included this provision hoping to use it in the event a bankruptcy occurs. For that intentional violation of the law, this court would be disposed to impose a substantial penalty.”
Credit Union One cross-appealed this ruling. The Court of Appeals held:
"The operative phrase of the statute, ‘provide for the payment,’ is not violated by the contract terms, ‘attorney’s fees to the extent permitted by state law,’ in the opinion of this court. The contract provision, read literally, does not provide for attorney fees in Kansas, and the $500 penalty should not have been awarded.”
On this issue we granted Stamm’s petition for review. In granting review, we considered that the issue is one of first impression before this court and that another panel of the Court of Appeals in Halloran v. North Plaza State Bank, 17 Kan. App. 2d 840, 844 P.2d 764 (1993), reached a contrary result on a similar issue, holding:
“A provision in a security agreement that authorizes a lender to apply proceeds from the sale of collateral to attorney fees ‘if permitted’ violates K.S.A. 16a-2-507, notwithstanding 11 U.S.C. § 506(b) (1984), which allows an award of fees in bankruptcy court to an oversecured creditor who has a fee agreement.” 17 Kan. App. 2d 840, Syl. ¶ 2.
The full text of the agreement provisions regarding fees at issue in Halloran was as follows:
“ ‘You [The Bank] may apply the proceeds of the disposition to your reasonable expenses for realizing on a security interest (including costs of repossession, attorneys’ fees (if permitted), repairs (if necessary) and costs of sale) and then to payment of the secured obligations.’ ” 17 Kan. App. 2d. at 841.
The issue before this court on petition for review is whether the provisions relating to attorney fees in the security agreement violated K.S.A. 16a-2-507. Regardless of previous constructions, our review is unlimited. We therefore construe the contract and determine its legal effect anew in this appeal. Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 704, 810 P.2d 1154 (1991).
Kansas has allowed the recovery of attorney fees when the contract provided for those fees. E.g., Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 873, 518 P.2d 410 (1974); Wheat Growers Ass’n v. Rowan, 125 Kan. 657, 266 Pac. 104 (1928). See Comment, Recovery of Attorney Fees in Kansas, 18 Washburn L.J. 535, 543-45. However, Kansas limits recovery of attorney fees primarily in debt contracts. K.S.A. 58-2312 provides:
“[I]t shall be unlawful for any person or persons, company, corporation or bank, to contract for the payment of attorney’s fees in any note, bill of exchange, bond or mortgage; and any such contract or stipulation for the payment of attorneys fees shall be null and void; and that hereafter no court in this state shall render any judgment, order or decree by which any attorney’s fees shall be allowed or charged to the maker of any promissory note, bill of exchange, bond, mortgage, or other evidence of indebtedness.”
This statute has been strictly construed based upon a stated Kansas public policy that attorney fee provisions in debt instruments are inimical to the public good. Young v. Nave, 135 Kan. 23, 24, 10 P.2d 23 (1932). This same policy is incorporated into the UCCC, which declares a fee provision in a consumer credit transaction unenforceable and subject to penalty. K.S.A. 16a-2-507; 16a-5-201(l), (8).
Credit Union One argues that the agreement does not provide for payment by the consumer of attorney fees because such fees are expressly prohibited in Kansas. The agreement itself acknowledges that only those fees permitted in Kansas will be allowed and since Kansas prohibits such fees, no fees are provided for in the agreement. The Court of Appeals’ opinion essentially adopts this argument in its decision that “[t]he contract provision, read literally, does not provide for attorney fees in Kansas.”
Stamm contends that the agreement contains two provisions for attorney fees. It provides for attorney fees to the extent permitted under state law or awarded under § 506(b) of the Bankruptcy Code. 11 U.S.C. § 506(b) (1988). She argues that the presence of such clauses, or a similar clause “if permitted” as used in Halloran, does not put the debtor on notice that Kansas law prohibits fees in a consumer credit transaction and that an unscrupulous creditor may exact fees even though prohibited. Moreover, she argues that an unsuspecting debtor may give up valuable rights in fear of being saddled with attorney fees in the event the matter is presented to a court of law. Thus, according to her arguments, in order to preserve the strong state policy against fees in such transactions, the clauses must be condemned as prohibited by law.
In Halloran, the Bank made much the same argument as Credit Union One makes before this court. It argued that the clause “if permitted” limited its provision for attorney fees to only those permitted by Kansas law. Since K.S.A. 16a-2-507 prohibits fees, the Bank argued that the provision in the agreement was without effect. In addressing this contention, Halloran states that the Bank’s argument “ignores the unqualified nature of the prohibition contained in K.S.A. 16a-2-507.” 17 Kan. App. 2d at 842. Halloran observes that K.S.A. 16a-2-507 includes no exceptions; it states that an agreement may not provide for attorney fees. Halloran also notes that the Bank’s argument ignored 16a-5-201, which penalizes inclusion of an attorney fee provision regardless of whether the creditor actually collects fees. It should be noted that Credit Union One made no attempt to collect fees under the contractual provision we now examine.
The Court of Appeals in this case held that the agreement permitted fees only to the extent permitted by state law and thus the agreement did not “provide for the payment” of fees in violation of K.S.A. 16a-2-507. In holding that the statute includes no exceptions and the agreement violates the law by providing for attorney fees, Halloran ignores the contingent nature of the agreement providing for the consumer to pay fees “if permitted.”
While there was no language in the Halloran agreement concerning bankruptcy, the argument was made that § 506(b) of the Bankruptcy Code, authorized a fee award despite contrary state law provisions. Halloran rejected this contention, concluding that the statute did not come into play because the section applied only to oversecured creditors and the Bank was not an overse-cured creditor. In Credit Union One, the Court of Appeals did not directly address the contention that the express provision for fees in bankruptcy violates K.S.A. 16a-2-507, except to say:
“There exists a dichotomy in law between Kansas law, as set out in K.S.A. 16a-2-507, and bankruptcy law, at XI U.S.C. § 506(b) (1988), in the treatment of secured creditors. The creditor must ask for attorney fees in the agreement under 506(b) but ‘may not provide for the payment by the consumer of attorney’s fees’ in Kansas.”
We must examine both clauses in the agreement in our determination whether the fee provisions violate K.S.A. 16a-2-507. The agreement provides that Credit Union One will deduct the expenses of the credit union for taking possession of and selling the property from the money received from the sale of the collateral and that the costs of taking possession and selling may include (1) “attorney’s fees to the extent permitted under state law” or (2) “awarded under § 506(b) of the Bankruptcy Code.”
(1) To the Extent Permitted under State Law
Credit Union One contends that no expense for attorney fees may be deducted from “money received from the sale” because K.S.A. 16a-2-507 prohibits attorney fees in a consumer credit transaction. Thus, according to its argument, the agreement does not “provide for the payment by the consumer of attorney’s fees” in violation of K.S.A. 16a-2-507. We agree with this contention.
While the agreement mentions attorney fees, it is not the mere presence of language regarding fees that is proscribed by law. K.S.A. 16a-2-507 clearly states that the “agreement may not provide for the payment by the consumer of attorney’s fees.” (Emphasis added.) The language used is conditional and never will, according to the express terms of the agreement, permit the creditor to deduct the cost of attorney fees upon default. We hold that language in a security agreement governed by the UCCC providing that attorney fees may be deducted from the proceeds of the sale of collateral upon default “to the extent permitted under state law” does not “provide for the payment by the consumer of attorney’s fees” in violation of K.S.A. 16a-2-507. The Court of Appeals was correct in its decision that the agreement, read literally, does not provide for attorney fees.
On the other hand, Halloran points to the unqualified nature of the prohibition contained in K.S.A. 16a-2-507, notes that the statute includes no exceptions, and states that an agreement may not provide for attorney fees. As we read Halloran, any language in the agreement regarding fees, albeit contingent or conditional, is sufficient to trigger a violation. We disagree and overrule syllabus ¶¶ 1 and 2 of Halloran, 17 Kan. App. 2d 840, and corresponding portions of the opinion.
While we recognize the basic policy in Kansas against fee provisions in consumer credit transactions governed by the UCCC, K.S.A. 16a-2-507 requires that the agreement “provide for the payment by the consumer of attorney’s fees” before a violation occurs. The specific language used in this agreement, “to the extent permitted under state law,” does not “provide for payment by the consumer of attorney’s fees” because such payment would not be permitted under our state law. The language used in this agreement does not violate the provisions of K.S.A. 16a-2-507.
(2) Awarded under § 506(b) of the Bankruptcy Code.
Section 506(b) of the Bankruptcy Code provides:
“To tiie extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” 11 U.S.C. § 506(b).
Stamm argues that language in the agreement “or awarded under § 506(b) of the Bankruptcy Code” also provides “for the payment by the consumer of attorney’s fees,” justifying imposition of the trial court’s penalty in the amount of $500. We note that the trial court seemed to base its decision upon this provision in the agreement when it said that the creditor intentionally included this provision hoping to use it in the event bankruptcy occurs.
The Court of Appeals here does not address the question whether the provision regarding attorney fees in bankruptcy violates K.S.A. 16a-2-507. Halloran does not directly address this question either.
Amicus Kansas Credit Union Association, amicus Kansas Banking Association, and Credit Union One, in its cross-appeal, argue that there is an inherent conflict between federal and state law and that federal law is supreme. According to their argument, the supremacy clause of the Constitution requires that we acknowledge and apply federal law in this case. The result would be to give effect to the provision in the agreement without imposing a penalty, even though a similar provision would be void and unenforceable in state court and would violate the stated policy in Kansas against attorney fee provisions in secured credit agreements.
Amici and Credit Union One rely on In re American Metals Corp., 31 Bankr. 229, 234 (Bankr. D. Kan. 1983), in which Judge Franklin held that § 506 allows an award of fees to an oversecured creditor, notwithstanding contrary Kansas state law. Three federal circuit courts also have held that “Congress intended to abrogate the pre-existing requirement that attorney’s fee agreements were enforceable only in accordance with state law. Such agreements are now enforceable notwithstanding contrary law.” Unsecured Creditors’ Committee v. Walter E. Heller, 768 F.2d 580, 585 (4th Cir. 1985). Accord In re Hudson Shipbuilders, Inc., 794 F.2d 1051, 1058 (5th Cir. 1986); Matter of 268 Ltd., 789 F.2d 674, 676 (9th Cir. 1986). A relevant treatise sums up the argument in favor of enforcement as follows:
“In a general codification of prior law, § 506(a) of the Bankruptcy Code splits a secured creditor’s claim into two parts: (1) a secured claim to the extent of the value of the collateral at the time of bankruptcy and (2) an unsecured claim to the extent of the balance. Of special interest to the secured creditor who comes into bankruptcy in an overcollateralized position is § 506(b), which allows such a creditor to apply the surplus to interest on the claim and attorney fees provided for in the security agreement (including fees incurred in connection with the bankruptcy proceeding itself). A strong argument can be made that attorney fee clauses in security agreement forms are enforceable in bankruptcy by an oversecured Article 9 creditor, even though state law prohibits such clauses outside bankruptcy. In other words, § 506(b) is a direct federal grant to the creditor that preempts conflicting state law. The legislative history strongly suggests such a conclusion. Thus, secured creditors in non-attorney fee states should consider including in their security agreement forms a clause imposing reasonable attorney fees triggered by the debtor’s bankruptcy. Because a bank’s right to setoff is treated like a security interest for purposes of determining the amount of the secured claim under § 506(a), both interest and attorney fees as authorized by prior agreement may also be allowed to the bank with a right to setoff to the extent that the setoff exceeds the allowed claim.” Clark, The Law of Secured Transactions under the Uniform Commercial Code, ¶ 6.01 (rev. ed. 1993).
Another argument in favor of preemption is that § 506(b) preempts state attorney fees law where the state law “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-99, 81 L. Ed 2d 580, 104 S. Ct. 2694 (1984). The argument made is that Congress intended by its enactment of § 506(b) to create a separate federal right to fees not dependent upon state law; that the right is enforceable notwithstanding state law to the contrary; that enforcement of the federal right furthers important federal policy; and that' for these reasons federal law preempts state law. See generally Comment, Preemption of State Law Notice Provisions Governing the Recovery of Attorneys’ Fees by § 506(b) of the Bankruptcy Code, 1986 Duke L.J. 176, 190 (1986).
We need not and do not decide whether federal law preempts state law in this case. The bankruptcy attorney fee provision in this agreement tracks the federal statute. The agreement authorizes fees to a secured creditor but only in bankruptcy, and then only to the extent the creditor is over-collateralized.
We conclude that the existence of the fee provision in this agreement does not violate the policy expressed in K.S.A. 16a-2-507. The clause “or awarded under § 506(b) of the Bankruptcy Code” furthers federal policy and does not violate the policy for protection of consumer debtors expressed in K.S.A. 16a-2-507. We hold that the presence of -such a clause in a security agreement governed by the UCCC does not violate K.S.A. 16a-2-507.
Judgment of the Court of Appeals reversing the district court is affirmed; judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Six, J.:
This case considers whether a half-blood uncle is subject to prosecution under K.S.A. 21-3603, the aggravated incest statute.
A Question Reserved By The Prosecution
Our jurisdiction is under K.S.A. 22-3602(b)(3), an appeal upon a question reserved by the prosecution. The State indicates in its notice of appeal that jurisdiction is under K.S.A. 22-3602(b)(l), an appeal from an order dismissing the complaint, information, or indictment. However, we are informed by the State’s docketing statement, Rule 2.041 (1993 Kan. Ct. R. Annot. 10), that the instant appeal is upon a question reserved by the prosecution. Three proposed issues are reserved and were briefed by the parties: 1) whether the half-blood relationship meant that defendant could be subject to prosecution under K.S.A. 21-3603; 2) whether the State should have been allowed to amend the information from aggravated incest to indecent liberties with a child after it rested its case; and 3) whether indecent liberties with a child is an included offense of aggravated incest under K.S.A. 21-3107(2)(d). We shall consider the half-blood uncle relationship question, which involves an interpretation of K.S.A. 21-3603, as an issue before us on a question reserved. The other two issues we need not entertain.
An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. We do not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases. State v. Ruff, 252 Kan 625, 630, 847 P.2d 1258 (1993). Our disposition of the half-blood uncle issue characterizes the remaining two issues as matters of asserted trial error which lack statewide interest.
We agree with the trial court. The sexual relationship between a half-blood uncle and the victim, a minor daughter of a half-brother, is not contemplated under K.S.A. 21-3603. The State’s appeal is denied.
Facts
Defendant, Billy Joe Craig, Jr., was charged with aggravated incest, a class D felony, under K.S.A. 21-3603. The original complaint was amended during the preliminary hearing to reflect that the alleged crime occurred between May 1988 and December 1990. The complaint, at the request of the prosecutor, also was amended to include an alternative charge of indecent liberties with a child, a class C felony, under K.S.A. 1992 Supp. 21-3503.
The victim testified at the preliminary hearing that her date of birth was December 5, 1972. She explained that Craig was her half-uncle because her natural father and Craig had the same mother. The victim testified that she had never been married to Craig and began having sexual intercourse with him in the summer of 1988, when she was 15. The sexual intercourse continued 4 to 5 times a month until she was 18, resulting in the birth of a son.
The district court bound Craig over only on the aggravated incest charge. The court determined that the victim and Craig were related as niece and uncle and that this relationship was one the legislature intended to include under K.S.A. 21-3603.
A formal information was filed charging Craig with aggravated incest. Craig’s case was assigned to a different district judge for trial. Craig entered a plea of not guilty and waived his right to a jury trial. Craig’s counsel stipulated to identification and to the admission of a blood test result which established with a 99.48 percent certainty that Craig was the father of the victim’s child.
A bench trial began with the State calling the victim as its first witness. She provided the same information that she had testified to at the preliminary hearing. As the State conducted its direct examination, Craig interrupted and informed the trial judge that he would stipulate that sexual intercourse occurred in Reno County between May 1988 and December 1990. The trial court accepted the stipulation. The State rested.
Craig immediately requested that the case be dismissed on the basis that sexual intercourse between a half-niece and half-uncle was not prohibited by K.S.A. 21-3603. Craig also called the trial court’s attention to the fact that K.S.A. 23-102 (incestuous marriages are void) does not prohibit marriage between a half-niece and half-uncle. Craig based his K.S.A. 21-3603 argument on People v. Baker, 69 Cal. 2d 44, 69 Cal. Rptr. 595, 442 P.2d 675 (1968). Baker held that the California incest statute condemned sexual relations between persons related by half-blood only when they were brothers and sisters. Sexual relations between an uncle and a niece of half-blood were not prohibited.
The State, in the case at bar, argued that a half-blood uncle is a classification under K.S.A. 21-3603 as determined by the district judge who presided at the preliminary hearing. In the alternative, the State requested that the trial court amend the complaint to charge the crime of indecent liberties with a child because the sexual intercourse stipulated to by Craig occurred, in part, during a time period when the victim was under 16 years of age.
The judge presiding at trial determined that K.S.A. 21-3603 was “very specific” as to the acts prohibited; concluded that the relationship between Craig and the victim was not proscribed under the aggravated incest statute, and dismissed the charge. The trial judge denied the State’s request to amend the complaint because indecent liberties is a higher class of felony than aggravated incest. He reasoned that another preliminary hearing on the new crime was required and that “[t]he crime of indecent liberties with a child is not a ‘lesser included offense’ within the aggravated incest charge. This is a different crime with different elements of proof. The state cannot amend, after resting its case, to charge the defendant with an additional or different crime.” The State argued that the complaint could be amended at any time before a verdict or finding.
Standard of Review
The district court’s interpretation of K.S.A. 21-3603 is a determination of law which frames the issues on appeal; consequently, our standard of review is unlimited. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991).
K.S.A. 21-3603 — A Half-Blood Uncle
Craig was charged with aggravated incest under K.S.A. 21-3603:
“(1) Aggravated incest is marriage to or engaging in any prohibited act enumerated in subsection (2) with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. (2) The following are prohibited acts under subsection (1):
(a) Sexual intercourse, sodomy or any unlawful sex act, as defined by K.S.A. 21-3501 and amendments thereto; or
(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
(3) Aggravated incest is a class D felony.”
K.S.A. 1992 Supp. 21-3503, indecent liberties with a child, states:
“(1) Indecent liberties with a child is engaging in any of the following acts with a child who is under 16 years of age:
(a) Sexual intercourse; or'
(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or
(c) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.
(2) It shall be a defense to a prosecution- of indecent liberties with a child that the child was married to the accused at the time of the offense.
(3) Indecent liberties with a child is a class C felony.”
The State concedes that K.S.A. 21-3603 does not specifically refer to a half-blood uncle. The State emphasizes that the half-uncle relationship is more closely allied in blood than that of a step-uncle or an adoptive uncle. The State urges us to conclude that a half-blood uncle was contemplated by the legislature as a biological relative within the meaning and purpose of the aggravated incest statute. We decline to do so.
The State relies on State v. Reedy, 44 Kan. 190, 24 Pac. 66 (1890). Reedy was convicted of incestuous cohabitation with the daughter of his half-brother. The Kansas incest statute at that time was similar to K.S.A. 21-3603. The earlier statute prohibited sexual relationships between parents and children, grandparents and grandchildren of any degree, brothers and sisters of the one-half as well as the whole blood, uncles and nieces, aunts and nephews, and first cousins. 44 Kan. at 192. The earlier statute, like K.S.A. 21-3603, did not specifically refer to half-blood uncles. In Reedy, we were asked to determine whether the incest statute applied to half-blood uncles. We found that “[a]n uncle is defined to be the brother of a father or mother, and according to the common understanding there is no distinction between the whole and half blood. [Citation omitted.]” 44 Kan. at 192. The State reasons that Reedy continues to be the law. The State claims that it was prohibited from charging Craig with indecent liberties with a child under State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), and that following Reedy, it properly charged Craig with aggravated incest.
The State advances a plausible argument; however, by this opinion, we overrule Reedy. In overruling Reedy, we emphasize the fundamental rule that penal statutes must be strictly construed in favor of the accused. State v. Schlein, 253 Kan. 205, Syl. ¶ 2, 854 P.2d 296 (1993). K.S.A. 21-3603 does not refer to half-blood uncles. It does, however, specifically refer to other half-blood relationships, i.e., half-brother and half-sister.
The Missouri Supreme Court in State v. Bartley, 304 Mo. 58, 263 S.W. 95 (1924), reasoned that when the incest statute specifically referred to a brother and sister of half blood it necessarily excluded all other half-blood relationships. Bartley was using one of the more common rules of statutory interpretation as expressed in the Latin maxim: expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. We also have endorsed the expressio unius rule. State v. Wood, 231 Kan. 699, 701, 647 P.2d 1327 (1982).
Baker, the California case relied on by the trial court in the case at bar, must be read in conjunction with People v. Womack, 167 Cal. App. 2d 130, 334 P.2d 309 (1959), and Reedy. Womack followed our decision in Reedy. 167 Cal. App. 2d at 131-32. Baker disapproved of Womack. 69 Cal. 2d at 50.
We must extend to Craig the benefit of reasonable doubt as to whether the aggravated incest statute applies under the facts. The trial court correctly determined that half-blood uncles were not contemplated by the legislature for inclusion under the aggravated incest statute. We believe the Reedy court should have emphasized the cardinal concept of strict construction of criminal law statutes rather than a legal dictionary definition of uncle which emphasized the civil law common understanding of the term. 44 Kan. at 192.
We reject Reedy’s common understanding perspective of the term uncle. We acknowledge the State’s dilemma that developed in charging Craig under the circumstances of differing trial judge views. However, we reason that if the legislature intends for half-blood uncles to be included under K.S.A. 21-3603, the statute may be amended to specifically include them.
Appeal denied. | [
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The opinion of the court was delivered by
McFarland, J.:
This action arises under the Kansas Age Discrimination in Employment Act (K.S.A. 44-1111 et seq.). The Kansas Human Rights Commission (Commission) held that Beech Aircraft Corporation (Beech) and Beech Acceptance Corporation, lire., (BACI) had violated the act in their respective terminations of Richard E. Noalces, Smith G. Laramore, and Edwin R. Hill. Beech and BACI then filed a petition for judicial review thereof in tire district court pursuant to K.S.A. 44-1011(b), where the matter was heard in a bench trial de novo. The district court held in favor of the respective defendants and vacated the Commission’s final order. The Commission appeals from the district court’s judgment.
The four issues raised on appeal are as follows:
I. Whether the district court erred in finding that Richard E. Noalces failed to establish a prima facie case of age discrimination.
II. Whether the district court erred in finding that Smith G. Laramore failed to establish a prima facie case of age discrimination.
III. Whether the district court erred in finding that, if a prima facie case was established, Smith G. Laramore failed to prove that the reasons given by Beech for his termination were mere pretexts for discrimination.
IV. Whether the district court erred in finding that Edwin R. Hill failed to prove that the reasons given by Beech for his termination were mere pretexts for discrimination.
K.S.A. 44-1113(a)(l), at the times pertinent herein, provided:
“(a) It is an unlawful employment practice based on age to engage in any of the following acts in any manner which would limit, deprive or tend to deprive any person of employment opportunities or otherwise adversely affect the person’s status as an employee or applicant for employment:
(1) For an employer, because of the age of a person, to refuse to hire or employ the person, to bar or discharge the person from employment or to otherwise discriminate against the person in compensation or in terms, conditions or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees because of age; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation, because of age without a valid business motive.” (Emphasis supplied.)
The italicized portion of the statute was deleted in the 1988 legislative amendments to the statute, but there is no claim the amendment is material to the action herein.
At all pertinent times herein, K.S.A. 44-1112(a) contained the following definition:
“(a) ‘Age’ means an age of 40 or more years but less than 70 years.”
Thus, for the purposes of the action herein, the protected class involves persons aged 40 to 70 years.
In Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982), we discussed the burden of proof requirements in an employment discrimination action as follows:
“[Appellant] cites Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), a case dealing with Title VII of the Federal Civil Rights Act, 42 U.S.C. 2000e et seq. In the opinion Justice Powell wrote for a unanimous court:
“ ‘In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, tire burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Id., at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804.
“ ‘The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, n. 2 (1978); id., at 29 (Stevens, J., dissenting). . . .
“ ‘The burden of establishing a prima facie case of disparate treatment is not onerous. . . . The prima facie case serves an important function in the litigation: It eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. See Teamsters v. United States, 431 U.S. 324, 358, and n. 44 (1977). . . . Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.
“ ‘The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra, at 25. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.
“ ‘The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she had been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 804-805.’
“We note the federal court was careful in Burdine to point out that the ultimate burden of persuading the trier of fact that the respondent intentionally discriminated against the complainant remains at all times with the complainant. The burden of proof never shifts to the respondent. It is the burden of going forward with the evidence that is placed on defendant after plaintiff has established a prima facie case.
“Federal court decisions concerning Title VII are not controlling on this court. Harder v. Kansas Comm’n on Civil Rights, 225 Kan. 556, 559, 592 P.2d 456 (1979). They are persuasive authority, however. McCabe v. Board of Johnson County Comm’rs, 5 Kan. App. 2d 232, 235, 615 P.2d 780 (1980). Especially is this true when they concern general law in the field of civil rights. We accept and embrace the rules stated in Burdine as to burden of proof, prima facie case and burden of going forward with the evidence in discrimination cases.
"The burden of proof in a proceeding under the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.” 231 Kan. at 766-68.
In Kansas State Univ. v. Kansas Comm’n on Civil Rights, 14 Kan. App. 2d 428, Syl. ¶ 7, 796 P.2d 1046, rev. denied 246 Kan. 767 (1990), the Court of Appeals applied these standards in an age and sex discrimination case and held that a prima facie case of employment discrimination may be established as follows:
“A prima facie case of age employment discrimination may be established by circumstantial evidence proving that: (1) an individual is a member of a protected group; (2) adverse employment action was taken against the individual, e.g., discharge, demotion, or failure to hire; (3) the individual was replaced by a person outside the protected group; and (4) the individual was qualified for the position.”
A modification in elements (3) and (4) may be appropriate where the individual's position is eliminated in layoffs or reductions in force. In such circumstances the plaintiff must “ produce evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.’ ” Washington v. Board of Public Utilities of Kansas City, Kansas, 1990 W.L. 81136 (D. Kan. 1990) (quoting Williams v. General Motors Corp., 656 F.2d 120, 129 [5th Cir. 1981], cert. denied 455 U.S. 943 [1982]).
The district court was the finder of fact herein and made extensive findings of fact. Where the district court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the district court’s conclusions of law. Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929 (1993). The same mile applies to a trial de novo arising from a Kansas Human Rights Commission proceeding. Kansas State Univ. v. Kansas Comm’n on Civil Rights, 14 Kan. App. 2d 428.
Further, a negative finding that a party did not carry its requisite burden of proof will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. EF Hutton & Co. v. Heim, 236 Kan. 603, 610, 694 P.2d 445 (1985); Lostutter v. Estate of Larkin, 235 Kan. 154, 162-63, 679 P.2d 181 (1984); Chris Hunt Water Hauling Contractor, Inc. v. Kansas Corporation Comm’n, 10 Kan. App. 2d 612, 617, 706 P.2d 825 (1985).
All three terminations herein were the result of the same downsizing or restructuring of the employing corporations. The circumstances leading up to the restructuring and the methods utilized in its accomplishment are complex, are common to all three individuals claiming discrimination, and were the subjects of extensive findings of fact by the district court. As the district court’s findings are at the heart of all issues herein, these findings are set forth as follows:
“1. Beech Aircraft is an aircraft manufacturer with its principal place of business in Wichita, Kansas. Beech Acceptance Corporation Inc. which is a subsidiary of Beech Aircraft Corporation provides financing for purchasers of Beech Aircraft. Since 1980 both Beech Aircraft and its subsidiary Beech Acceptance Corporation Inc. have been wholly owned subsidiaries of Ray-theon.
“2. In 1979 Beech Aircraft Corporation sold 1,563 aircraft. In the next decade, all general aviation manufacturers experienced a steep decline in sales. Beech’s sales of aircraft dropped precipitously and in 1987 the company sold only 300 aircraft. In 1980 when Raytheon purchased Beech the company earned net income in excess of $120,000,000. In 1985 Beech had a net loss of more than $20,500,000.
“3. As a result of decreasing sales in the early 1980’s there were several large scale reductions in force which resulted in a significant decrease in the number of Beech employees. In the 6 month period between December, 1981 and June, 1982, the company reduced its work force by more than 2,500 employees. Those layoffs affected primarily employees who worked in manufacturing departments. Those employees were generally compensated on an hourly basis.
“4. On the other hand the number of salaried employees remained fairly steady thi-oughout the reductions in force. As a result, the number of manufacturing employees was much smaller than in the past while the number of salary workers remained constant or even increased.
“5. The reductions in force did not halt the decline of profits and Beech took additional cost cutting steps such as closing its plants in Liberal, Kansas, Selma, Alabama, and Boulder, Colorado, and selling those properties. In spite of all of these efforts, the company’s profits continued to decline. The company suffered a net loss in 1983, 1984, 1985 and 1986.
“6. In early 1987, James Walsh, who was then president of Beech, decided that a restructuring of the company was necessaiy. Beech contacted five consulting firms which specialize in the evaluation of businesses and asked each company to give a presentation outlining what it could do for Beech. One of these companies was the MAC Group which had previously performed such services for Greyhound Bus, Gulf Oil, and Schlumberger Co., and the MAC Group was hired to provide assistance with restructuring the Corporation.
“7. A team of MAC Group consultants began interviewing Beech personnel and observing operations in order to develop an understanding of the company and its problems and they were given access to all relevant information about Beech and its subsidiaries and were permitted to freely interview employees. The consultants met periodically with Jim Walsh and his staff and reported on their work.
“8. After six weeks of interviewing and observation, the MAC Group consultants [stated] that Beech would have to reduce its costs in order to continue to operate in the depressed general aviation market.
“9. The MAC Group consultants began training management personnel to perform the necessary analysis of overhead costs and the company was divided into operations, engineering, aerospace, industrial relations and controller and administration departments. Each of those departments was segmented into decision units. The decision unit manager was then charged with identifying each of the unit’s functions, operations and activities. The decision unit manager was also required to document the current operations and performance of the unit, identify alternatives to the current way of performing the functions and prioritize the functions being performed. Eveiy job function was examined.
“10. In order to determine the priority of each job function, the decision unit manager was instructed to perform an incremental analysis and to determine the most urgent need for the decision unit. In addition, each manager was instructed to specify the number of employees required by each high priority function or operation. The number of employees in the first increment cannot exceed seventy percent of the current number of employees in the decision unit. Each successive increment was to contain those services which were next in order of priority until all personnel in the unit were included. The only job functions that were exempt from the overhead analysis in ranking were those that actually related to the manufacture of aircraft.
“11. The decision unit managers were specifically instructed to focus on job functions, not specific personnel.
“12. Within the controller’s department, Jim Gray was appointed as decision unit manager for the financial analysis decision unit. At the same time, Gray was the assistant controller.
“13. After the initial ranking by the decision unit manager, the analysis was discussed with the department or division managers. The managers were asked to group each job function into one of three categories: ‘must do, no discussion’; ‘want to do, let’s prioritize’; and ‘discretionary, let’s prioritize’. Next, each department or division manager discussed his or her area with the group vice president, then all vice presidents discussed their area with the president. Finally, there was a company-wide ranking.
“14. In order to determine the current functions being performed by department 87 [the financial analysis decision unit] and alternative methods for accomplishing those functions, Gray asked each of the managers and supervisors within the department to summarize, in a very detailed fashion, all the tasks and activities performed within each of the organizational units under his management.
“15. There was no discussion about the individual employees who perform the task as the objective was to identify tire importance of the activity without considering who was performing the task.
“16. After determining what job functions were currently being, performed, supervisors and managers reported as to how many times each month each job task was performed and what staffing was necessary to accomplish those tasks. They also suggested alternative methods for accomplishing the job task more efficiently.
“17. After defining all the tasks being performed, staffing loads necessary to perform those tasks and recommendations as to how the task could be accomplished more efficiently, Gray and his staff set about determining the priority of all the tasks. Each manager prepared an analysis of the priority of the task in their department. Each manager did an incremental analysis identifying how many employees were necessary to perform the higher priority tasks, how many additional employees were necessary to perform the second most important task and so on for each increment. In addition, each manager stated what the consequences would be if a particular increment was not funded.
“18. After receiving the incremental analysis from his manager, Gray compiled them into a decision unit overview of the whole department.
“19. Gray then prepared a decision unit increment for department 87. This document compiled each manager’s level one increment. When all the manager’s level one increments were combined, it would require 50 employees to staff the increment. There were currently 71 employees in the department. The consequences of not funding tire first increment would have been extremely drastic.
“20. It would have taken 9 employees to staff the department’s second increment and the consequences of not doing so were much less severe.
“21. It would have taken 5 people to staff the department’s third increment and the consequences of failing to fund the increment were even less serious.
“22. It would have taken 7 employees to fund the department’s fourth increment and failing to staff the increment would not result in any substantial detrimental consequences.
“23. Each decision unit manager throughout the company prepared similar evaluations of his or her department.
“24. The company wide ranking took place on Saturday, July 25, 1987. On that day all of the vice presidents met' with Max Bleck who had become president of Beech. In the meeting the total Beech organization was subjected to the incremental analysis in a group discussion. The vice presidents determined whether one department’s first priority tasks were more or less important than those of another department.
“25. Eveiy department was required to lay off a certain number of employees. The engineering department laid off 24.4% of its employees. The controller’s department was reduced by 8.2%.
“26. Prior to determining which employees were going to be laid off, each manager was asked to find out whether there were any employees within his or her group that intended to retire soon. Beech employees are eligible for full retirement benefits at age 62 and if an employee was close to that age, the company wanted to ascertain whether the employee was actually contemplating retirement at that age of 62 or intended to continue working until a later date.
“27. On a strictly voluntary basis, Beech provided an early retirement option to employees nearing retirement age. Those employees could elect to retire and receive the same severance package as those employees who were involuntarily laid off. Depending on length of service, an employee could receive up to six months’ salary and benefits. Thus, an employee ... six months away from the date on which [he or she] could receive frill benefits . . . had the option to retire early and continue to receive salary and benefits during the six months before the date [he or she] could receive full retirement benefits. Forty-seven employees opted to take early retirement.
“28. After it was determined which increments were not going to be funded, it became necessary to choose which people were going to have to be laid off. Up to this point, there had never been any discussion about specific employees.
“29. Gray had each of his managers determine how he or she would fill the jobs that had been funded. It was determined that Hill and Laramore would be laid off. Dave Dwelley was in charge of Beech Acceptance Corporation, Inc. in the interim between the resignation of Andrew Horvath and the employment of Jim Link as president of the company. Link, Dwel-ley, and Toe Giardina, the Controller, determined that Noakes should be laid off.
"47. Unlike prior layoffs, in this instance the company imposed a hiring freeze and requisitions for employees were frozen with certain minor pre-approved exceptions. The hiring freeze was implemented to avoid hiring new employees at the same time the company was attempting to restructure and downsize. It was also unique because it affected all departments within the company. Beech attempted to avoid moving employees into jobs requiring new skills. The purpose was to avoid retraining which would be costly and inefficient.”
Additional findings relative to the reasons the three employees herein were selected for termination will be set forth in the discussion of the individual terminations.
The Commission contends findings No. 15 and No. 18 are clearly erroneous. We do not agree. The testimony of Controller Jim Gray supports said findings.
We turn now to the findings of fact specifically relating to the termination of the three individuals herein.
Complaint is made of the emphasized portion of Finding of Fact No. 48, which relates to all three individuals herein. That finding states:
“48. At the time of the August 7, 1987 reduction in force, Jerome Williams was supervisor-professional employment. As such, he dealt with salaried or nonexempt employees. Jim Sheldon, the manager of employment, had recently had surgery and was on medical leave and Dick Griffiths, vice president of human resources, asked Williams to coordinate the layoff. In addition to processing severance letters, severance pay and other benefits Williams was x-esponsible for reviewing the layoff of long service employees. Williams reviewed the decisions to lay off Laramore, Noakes and Hill. Williams ■received the names of the employees to he laid off on July 27 and conducted his investigation during the 11 days before layoff. For each of the salaried employees whose layoff he was investigating, he checked to determine whether they had previously held any hourly position to which they could return and spoke to Jim Gray to determine whether there was any position available for Noakes in the finance area. He was informed that in order for Gray to take [Noakes] into his department, Gray would have to terminate a person from his department who was already doing a job they were trained to perform. Williams also reviewed the decision to lay Laramore off and was told that Laramore’s performance rankings were very low and was informed that Laramore’s performance was so deficient that Laramore could have been terminated rather than laid off. Williams checked with others of the department but found that they were unwilling to [accept] Laramore in a clerical position because his computer skills were not sufficient. Williams also reviewed the decision to lay Hill off. He learned that Hill’s performance rankings had been far below average.” (Emphasis supplied.)
The Commission contends that the sentence “Williams received thé names of the employees to be laid off on July 27 and conducted his investigation during the 11 days before layoff” is erroneous and that Williams could have had, at most, a 372 day review period.
The finding of fact does contain an error. It was the numbers of employees rather than the names of the employees that Williams received on Monday, July 27, 1992. He received the names the week of termination.
The essence of Finding of Fact No. 48 is correct. From the time Williams received the names of the employees slated for termination, Williams particularly investigated the long-term employees to determine why the person was being terminated, if another person could be selected, and if the person could be transferred elsewhere in the company. Williams reviewed the decisions to lay off Noakes, Kill, and Laramore and reviewed the decision-making process with Jim Link, Jim Gray, and Williams’ supervisor, Dick Griffiths. Grif-fiths asked Williams to repeat his investigation. Williams did, repeating his discussions with Link and Gray. He reported back that nothing had changed. Griffiths then personally discussed the terminations with Link and Gray and the possibilities of other employment within the company.
It is clear that Williams reviewed the decision to lay off Noakes, Hill, and Laramore, which is the substance of Finding of Fact No. 48.
There is no evidence nor any allegation before this court that if Williams had had more time to investigate the termination decisions, the outcome would have been different. Further, there is nothing in the record that a corrected finding of fact would have altered tire results reached by the district court herein.
RICHARD E. NOAKES
Noakes was one of 11 employees of BACI at the time of the August 1987 layoffs. He was 54 years old at the time. He was tire manager of international accounts and supervised the collection of accounts from aircraft purchasers located outside the United States. Fred Slaughter was the manager of domestic accounts. He was 60 years old in August 1987. Noakes’ duties were assigned to Slaughter, which occupied about 10 percent of his time after Noakes’ termination. The reason Slaughter could handle Noakes’ duties with minimal time was that, previously, a major change had taken place relative to credit sales to overseas buyers. Jim Walsh, then president of Beech, had become concerned about delinquent foreign accounts and had imposed a requirement that all international financing be secured by a letter of credit posted by a United States bank. If an international account became delinquent, BACI had only to draw on the letter of credit.
Finding of Fact No. 34 states:
“34. Prior to 1988 salaried employees were evaluated annually by means of a salary totem. Each employee within a department was ranked in descending order of importance to the department. In addition, each manager rated the employee’s performance and promotability with a la rating being the best and 5d being the worst. In the December, 1985 totem ranking there were three salaried employees in Beech Acceptance Corporation Inc. Slaughter was ranked first, Rick Parkhurst was ranked second and Noakes was ranked third of the three employees. In terms of performance Noakes was ranked 4d. The d stands for not promotable. Slaughter was rated la and Parkhurst was rated 3b. In the December, 1986 total rankings Slaughter was ranked first and Parkhurst was ranked second. Again Noakes was ranked third of the three salaried employees and he was again rated 4d with Slaughter and Parkhurst being rated la and 3b respectively.”
Noakes’ remaining duties were assigned to Slaughter. Slaughter is older than Noakes and in the protected class. So, Noakes contended he should have been retained and the 43-year-old Parkhurst laid off. The district court, in Finding No. 35 found that Parkhurst was retained because his performance had been better than Noakes’ performance had been. Finding No. 34 supports this.
After stating the burden of proof requirements inherent in this type of litigation and how a complainant 'may establish the requisite prima facie showing, the district court stated:
“Using the foregoing standards, the Court has determined that die complainant Noakes has failed to establish a prima facie case. The job he held was eliminated and die performance thereunder was combined with a job performed by Mr. Slaughter who is in fact older than Noakes and therefore is not outside the protected age group. The Court believes the principles announced by Judge Theis in providing for alteration of the prima facie case requirements under peculiar factual situations are applicable. His decision was announced in the case of Hamilton v. Richard Cheney, Secretary of Defense, civil action no. 84-1137-T in a memorandum and order issued June 8, 1990 and by Judge O’Connor in the case of Washington v. Board of Public Utilities of Kansas City, Kansas, civil action no. 88-2312-0 a memorandum and order entered on May 8, 1990 in the U.S. District Court for the District of Kansas in which Judge O’Connor pointed out that while some exception [may] be made for the prima facie requirements when it is established that the reduction in force precluded proof by the complainant that there was replacement by a younger employee, Judge O’Connor pointed out that courts have modified the fourth prima facie element by requiring the plaintiff to ‘produce evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.’ The Court specifically finds as a matter of law that no such evidence has been produced by the complainant Noakes in the instant case.”
The Commission is challenging in this issue the district court’s negative finding that Noakes had not established a prima facie case of age discrimination in his termination. The Commission had previously found discrimination as to Noakes and, under its interpretation of the evidence, urges us to reverse the district court. This we cannot do,. The district court was the finder of fact in a tidal de novo. When a district court reviews the proceedings of the Commission, the duty of the district court is to conduct an independent and thorough examination of the record and make independent findings of fact and conclusions of law. Kansas State Univ. v. Kansas Comm’n on Civil Rights, 14 Kan. App. 2d 428, 796 P.2d 1046, rev. denied 246 Kan. 767 (1990). We conclude there is no legal basis for reversing the district court’s finding that Noakes had failed to present a prima facie case of age discrimination.
SMITH G. LARAMORE
Laramore was 59 years old in August 1987. The trial court made the following findings of fact as to Laramore:
“36. When Laramore was hired by Beech in 1975, he was classified as a staff accountant. He worked in financial sales forecasting from 1975 until 1983. In that department he apparently did not have a good working relationship with his immediate supervisor. Laramore testified that his su pervisor intended to reorganize the department in 1983 and did not intend to have Laramore in the department after the reorganization. As a result Laramore asked for a transfer to the internal audit department. Laramore’s supervisor in internal audit was Sam Clift who was manager of Internal Audit. While he was in internal audit, Laramore worked only on balance sheets which concerned receivables, payables and equipment and performed those duties well and Clift gave him good evaluations and recommended salary increases.
“37. When Larampre worked in internal audit Clift had suggested that he needed to learn more about the electronic data processing system and although Laramore was aware of tire availability of computer training he never took the class.
“38. Clift transferred out of internal audit and Beech hired George Houston as the new manager for internal audit. Houston had retired from a career as a federal bank examiner and was 58 years old when Beech hired him to manage the internal audit department.
“39. Laramore does not have a college degree and thus could not certify audit reports. Because Coopers and Lybrand, which [audits] all Raytheon subsidiaries, required audit reports to be certified, Laramore could no longer work in the internal audit department. He transferred to cost accounting where he again worked under the supervision of Sam Clift.
“40. In cost accounting Clift wanted Laramore to work on developing a new cost out system of service stock for the parts that are available for aircraft that are already in the field. This job assignment was conceptually more difficult than the work Laramore had performed in internal audit and Clift found Laramore’s performance to be inadequate in the new assignment. Clift spent quite a bit of time working with Laramore in an attempt to help him improve without success. Clift then attempted to find another position in which Laramore could perform and there was an opening in the cycle count area which was under Clift’s management. Bill Andróes, the group leader in that area, was apprehensive because he knew Laramore had a history of being unable to get along with his supervisors. He was, however, persuaded to take Laramore into die cycle count area and on more than one occasion he reported to Clift that Laramore was having problems performing in the cycle count area.
“41. Frank Neukirch worked in cycle count with Laramore and knew that Laramore made a lot of careless errors in his work. Part of Laramore’s job was to input information on air electronic spread sheet and Andróes and Neukirch hoped that Laramore would become proficient in the use of the spread sheet and would improve his accuracy. Neukirch had developed the program from the spread sheet and offered to assist Laramore in learning to use the program. Laramore never made any effort to become proficient in the use of the spread sheet.
“42. Prior to 1988 in department 87, in the totem rankings, Laramore was for example on December, 1986, ranked 23 out of 24 employees. His performance rating was 5d. Before the reduction in force of all the employees under Clift’s management, Laramore received the lowest evaluation. During the period between the evaluation and the reduction in force there was no improvement in Laramore’s performance.
“43. On August 6, 1987, Kaiser informed Laramore that he was going to be laid off. Kaiser told Laramore that his performance as well as economic factors were the reasons for the layoff. The duties previously performed by him were assigned to Gene Hirsch. At the. time of the reduction in force, Hirsch was 43 years old and had a bachelor’s degree in accounting.”
Following the district court statements relative to burden of proof and the ways a prima , facie case may be established, the court then found:
“5. With respect to the complainant Laramore, the evidence is quite clear that he likewise failed to establish a prima facie case since his replacement was by Mr. Hirsch who was within the protected age group. Even if it should be held that Hirsch, 43 arid therefore younger than Laramore, was in fact a younger employee and a prima facie case were to be established, it is quite clear that the reasons given by the employer for the selection of Laramore to be laid off are not suspicious or incredible but are in fact quite believable in view of the fact that Laramore was subject to being terminated for unsatisfactory performance. This Court is unwilling to penalize the employer’s attempted humanity by structuring the matter as a reduction in force even though it involved a certain deviation from the truth in order to permit the most humane treatment of the employee. The Court does not believe that the law requires the employer to be as inhumane as possible at the risk of being held to account to some other standard by a subsequent reviewing administrative judge or body.”
Again, the Commission seeks to substitute its interpretation of the evidence for that of the district court. Applying the previously expressed applicable appellate standards, we find no legal basis for reversing the district court in its determination that the requisite prima facie case had not been established as to Laramore, and even if such had been established, the reasons for his termination were not pretextual.
EDWIN R. HILL
Hill was 47 in August 1987. The district court made the following findings as to Hill:
“44. Complainant Hill, throughout much of the time he was employed at Beech, owned and actively managed a construction company. His handling of the day to day affairs of that company was detrimental to his performance at Beech as he spent a good deal of time dealing with his employees and customers and occasionally left work to go to job sites.
“45. From June, 1986 until the reduction in force, Hill was supervised by John Salisbury. Salisbury also supervised Gene Hirsch during the same period. When the December, 1986 salary totem was prepared, Salisbury concluded that Hirsch had more accounting ability than did Hill and made the determination without being aware of Hill and Hirsch’s respective ages.
“46. On the December, 1986 salary totem, Hill is ranked 24th of the 24 employees who were included in the totem when his performance was rated 4d. On August 6, 1987, Hill was notified that he would be laid off. The majority of Hill’s work was assumed by Don Jepsen although the duties previously performed were assumed by a number of other people. At the time of the reduction in force Don Jepsen was 59 years old, twelve years older than Hill.”
The Commission contends Finding of Fact No. 44 is clearly erroneous.
The record reveals that Hill admitted performing construction-related business, during Beech working hours. John Salisbury, Hill’s immediate supervisor, testified that Hill spent quite a considerable amount of time on the telephone for his construction business and that Hill’s construction business affected his performance at Beech, but that it was not “a humongous detriment.” Sam Clift, for whom Hill built a house, testified that Hill had gone out to the building site more than once during Beech work hours.
Salisbury’s testimony that Hill’s time spent on the phone was not a “humongous detriment” does, by implication, infer that Hill’s time doing his own business was detrimental.
Therefore, the testimonies of Hill, Salisbury, and Clift constitute substantial competent evidence supporting the findings of fact. The trial court has the right to draw reasonable inferences from the testimony of the witnesses. Where legitimate inferences are reasonably drawn from the evidence and supported thereby, this court will refuse to interfere with the findings of the trial court upon such inferences. Kelso v. Kelso, 182 Kan. 665, 669, 324 P.2d 165 (1958).
After its review of the burden of proof and requisite elements to establish an age discrimination action, the district court then held:
“6. With respect to the complainant Hill, hé too was not replaced by any person and therefore the Court is required to examine tire circumstances of the performance of his work after his termination. The Court finds that the reasons given by the employer for his termination are credible, and are not the subject of age discrimination, and were not a mere pretext. The Court further finds that this termination resulted in the majority of his work being assigned to Don Jepsen who was age 59 and well within the protected class.”
Here, again, we are asked to adopt the Commission’s interpretation of the evidence and reverse the district court. This we cannot do. The district court’s findings are based upon substantial competent evidence, and no legal basis is shown for reversal of the district court.
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against James L. Wisler, an attorney admitted to the practice of law in Kansas. At the time of the events which led to the complaint, respondent Wisler was a sole practitioner in Mound City, Kansas.
The facts were stipulated to by respondent and the Office of the Disciplinary Administrator and will be summarized here. Respondent was retained January 29, 1988, by agents of Amoco Oil Company (Amoco) to pursue a collection matter in the amount of $1,918.87 against Steve Dunn, an employee of the Burlington Coat Factory. Collection efforts by respondent proceeded at an acceptable rate for' some time thereafter. Suit was filed by respondent against Dunn in January 1989, and a judgment by agreement was obtained February 22, 1989. At that time, Dunn agreed to make payments of $100 per month on the judgment. Upon receipt of the first payment in February 1989, respondent promptly remitted Amoco’s portion of that amount to Amoco’s representative.
Thereafter, Dunn only made sporadic payments, and respondent failed to remit them to Amoco or to keep his client informed despite repeated inquiries. Respondent failed to respond to numerous requests for status reports. In April 1990, respondent collected the entire balance due on the account in the amount of $1,840.87 and deposited the same in his trust account. Although respondent filed a satisfaction of judgment on April 12, 1990, he failed to remit the client’s portion of the collection in the amount of $1,478.69. On September 4, 1990, respondent advised the client that he had collected only $400 and remitted the client’s portion of that amount.
After attorneys for Amoco had verified through Dunn that the account had been paid in full in April 1990, respondent finally remitted the balance due on April 23, 1992. Between May 1989 and April 1992, respondent repeatedly refused to answer correspondence and telephone inquiries from the client. When he did reply, respondent misled the client and failed to advise the client of the true status of the account. Between April 1990, when respondent collected the account in full, and April 1992, when he finally remitted the amount due to the client, respondent’s trust account balance fell below $1,478 on numerous occasions. During the same general period.of time, respondent’s entire trust account showed a negative balance on at least six occasions and respondent wrote at least eight insufficient fund checks on the account.
During the time period covered by the Amoco complaint, respondent had several personal and emotional problems and was addicted to the use of alcohol.
Based upon the stipulated facts, the hearing panel found, by clear and convincing evidence, violations of the Model Rules of Professional Conduct as follows:
“(a) MRPC 1.3 [1993 Kan. Ct. R. Annot. 263] in that the respondent failed to act with reasonable diligence and promptness in representing a client.
“(b) MRPC 1.4(a) [1993 Kan. Ct. R. Annot. 267] in that the respondent failed to keep a client reasonably informed about the status of a legal matter and failed to promptly comply with reasonable requests for information.
“(c) MRPC 1.5(d) [1993 Kan. Ct. R. Annot. 270] in that the respondent upon the conclusion of a contingent fee [matter] did not provide the client with a written statement stating the outcome of the matter and a statement showing the client’s share and amount and the method of determination and the respondent further failed to advise the client of its right to have the fee reviewed as provided in MRPC 1.5(e).
“(d) MRPC 1.15(a) [1993 Kan. Ct. R. Annot. 299] in that the respondent failed to keep complete records of a client’s account funds and failed to deliver other client funds to which the client was entitled.
“(e) MRPC 4.1(a) [1993 Kan. Ct. R. Annot. 327] in that the respondent in the course of representing a client made false statement of material facts or failed to disclose material facts to the client.
“(f) MRPC 8.4(c) [1993 Kan. Ct. R. Annot. 347] in that the respondent engaged in conduct involving deceit or misrepresentation.”
The hearing panel received evidence as to the appropriate sanctions to be imposed for the violations: In its report the panel states:
“The panel then heard evidence of mitigating and/or aggravating circumstances and the panel heard as witnesses in relation to mitigation the following witnesses:
“1) Dr. James Lemon, psychologist and counselor who has been treating and counselling with respondent concerning his problems and his admitted alcoholism.
“2) Frank M. Rice, a practicing attorney in Topeka, Kansas, and a member of the Schroer Rice firm of Topeka, Kansas.
“3) The respondent himself, James L. Wisler.
“The panel also admitted into evidence respondent’s exhibits 1, 2 and 3.
“The panel considered in mitigation and aggravation and in determining its recommendation of discipline the following:
“(A) Absence of any prior disciplinary record for the respondent.
“(B) Personal or emotional problems which contributed to the violation of the Code of Professional Responsibility as stated further hereinafter.
“(C) Timely good faith effort to make restitution and the panel found that the respondent had paid all sums due to the client prior to the filing of the complaint.
“(E) The panel further took into consideration in mitigating circumstances the attitude of the respondent, James L. Wisler, as shown by his cooperation with the disciplinary board and his cooperation during the hearing and the respondent’s free and full acknowledgement of his transgressions.
“(F) The panel further found in mitigation for the respondent that he fully admits that he has an alcoholic problem and that he is an alcoholic. That he has voluntarily admitted himself to a thirty day alcoholic education program and that since that time he has counseled with Dr. James Lemon and has been a very active member of AA.
“(G) The panel further finds in mitigation that Dr. Lemon has testified that in his opinion tire respondent is making a recovery from his alcoholic dependency and has and is demonstrating a meaningful sustained period of successful rehabilitation.
“Dr. Lemon further testified that he believes that the respondent should receive counseling for another year regarding his alcoholic dependency.
“The panel also took into consideration in mitigation of the respondent’s action the fact that at the time of the transgressions he was a .single practitioner in Linn County, Kansas, and was having severe family problems as well as his alcoholic problems.
“The panel finds that since the transgressions the respondent has ceased to practice law by himself in Linn County, Kansas, and is now an associate with the law firm of Schroer Rice in Topeka, Kansas. Mr. Frank M. Rice, member of that law firm testified on behalf of the respondent and stated that he had worked for the firm as an associate since October of 1992, and in Frank Rice’s opinion respondent was a very efficient and dedicated attorney. Mr. Rice further testified that he had informed the respondent that if respondent took one more drink that his association with the Schroer Rice firm was finished and Mr. Rice further testified that he did not believe that the respondent had had anything to drink since associating with that firm and in his opinion had a meaningful recovery from his' dependency on alcohol.
“Mr. Rice further testified he was basically supervising the legal work of the respondent.”
The panel report then recommended that respondent be suspended from the practice of law for one year but that the imposition of such discipline be suspended and respondent placed upon probation for one year. After a full review of the record, the members of this court agree generally with the findings, conclusions, and recommendations of the hearing panel of the Kansas Board for Discipline of Attorneys. The court further finds that respondent should be placed on probation and that any further discipline be held in abeyance pending compliance with the orders hereinafter set forth.
It Is Therefore Ordered that James L. Wisler be and he is hereby found to be in violation of the Model Rules of Professional Conduct as hereinbefore set forth.
It Is Further Ordered that James L. Wisler be and he is hereby placed upon probation for the term of one year from the date hereof and until the further order of the court on the following terms and conditions:
A. Respondent shall continue counseling for his alcoholism with appropriate counselors.
B. Respondent shall continue active participation in and as a member of Alcoholics Anonymous.
C. Respondent shall abstain from the consumption of alcoholic beverages.
D. Respondent’s legal work and efforts shall be under the direct supervision of his employers, and any change in respondent’s employment shall be promptly reported to the Disciplinary Administrator.
E. There shall be submitted to the Disciplinary Administrator on a quarterly basis progress reports on respondent’s status by the counselor providing professional alcoholism and mental health counseling, respondent’s sponsor at Alcoholics Anonymous, and respondent’s employers.
F. Respondent shall comply with such additional terms and conditions of probation as may be imposed from time to time by the Disciplinary Administrator.
It Is Further Ordered that upon the failure of respondent to comply with all provisions of probation this court may, upon notice to respondent, proceed to impose such further discipline as it deems proper, without the necessity of further proceedings before the Kansas Board for Discipline of Attorneys or this court.
It Is Further Ordered That the costs of this proceeding be assessed to respondent and that this order be published in the official Kansas Reports. | [
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On October 30, 1992, this court placed respondent on probation for a period of one year, subject to the following conditions: (1) that his legal practice be supervised by attorney Craig E. Collins; (2) that he continue in some type of psychological counseling, including either group therapy or private therapy; and (3) that he report on a quarterly basis to the Office of the Disciplinary Administrator, verifying his therapy and the progress of that therapy. In re Plettner, 251 Kan. 844, 840 P.2d 526 (1992).
This court finds that the Disciplinary Administrator has filed a probation report verifying that respondent has fully complied with all conditions imposed upon him by this court and recommending that respondent be discharged from probation.
Therefore, this court, having reviewed the files and recommendations of the Office of the Disciplinary Administrator, finds that respondent Mark R. Plettner should be discharged from probation.
It is Therefore Ordered that respondent is discharged from probation and from any farther obligation in this matter and that this proceeding is closed.
It is Further Ordered that this order be published in the Kansas Reports and that the costs herein be assessed to respondent. | [
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